Juridical Tribune - Tribuna Juridica

20 - 31

Authors: PhD. Aneta TYC

The conclusion of bilateral free trade agreements is currently a phenomenon in considerable expansion and with significant potential. Many of them include a specific chapter relating to labour, eg. the EU-South Korea FTA Chapter entitled ‘Trade and Sustainable Development’, the CPTPP Chapter entitled ‘Labour’ or the CETA Chapter entitled ‘Trade and Labour’. The objective of this study is to improve the understanding of labour provisions, which are included in the ‘Trade and Sustainable Development’ Chapter of the EU and Japan’s Economic Partnership Agreement. The author researches different legal traditions between Japan and EU and concentrates on the lack of ratification on the part of Japan of the ILO Convention concerning Discrimination in Respect of Employment and Occupation, and the ILO Convention concerning the Abolition of Forced Labour (notwithstanding references to the ILO core standards in the EPA). She focuses her attention on the the dispute resolution mechanism included in the EPA, which does not establish sanctions for breaching the obligations under the ‘Trade and Sustainable Development’ Chapter and may thus stymie the ratification process and the effective enforcement of labour standards. Moreover, this study contributes to the literature by offering insights on the Committee on Trade and Sustainable Development, and the involvement of civil society in the implementation of the ‘Trade and Sustainable Development’ Chapter. Findings suggest insufficient transparency with respect to the work of this Committee and the Joint Dialogue with civil society.

49 - 72

Authors: Academician, habilitated professor Viktor MURAVIOV; Habilitated professor Nataliia MUSHAK; Professor Tetiana TARAKHONYCH

The article deals with the impact of the EU acquis on the international relations between states taking into account the sustainability of integration processes within European Union. The methods of comparative analysis, historical and legal research, systematical approach are widely applied through the scientific study. The authors underline that the expansion of EU primary and secondary legislation into third countries' legal orders is most often achieved as a result of the conclusion of international agreements whose provisions reproduce the prescriptions laid down in the treaties establishing the European Union and in acts adopted by institutions of the EU. Special attention is paid to the association agreements between the EU and Mediterranean countries that envisage a gradual formation of the free trade area and imply that adjacent to the EU will be an area of economic stability, contributing to the development of its integration processes. One of the key results of the study is the statement that cooperation between the European Union and third countries and international organizations is provided due to so-called ‘Europeanization’ of their legislation.

90 - 121

Authors: LLM. Katlego MASHIANE; Professor Kola O. ODEKU

The oppressive Apartheid government policy and laws of the past deliberately entrenched inequality, forced segregation and denied the majority of black Africans unfettered right of access to various socio-economic rights, goods and services, particularly housing. However, after the apartheid government was defeated in 1994, the African National Congress (ANC) became the new ruling government in South Africa and in a bid to redress the past injustices, particularly the imbalances in social, socio- and economic amenities where the majority blacks were excluded, the new government enacted the Constitution of the Republic of South Africa, 1996. It provides that all citizens are equal before the law and have the same rights, privileges and benefits for the mere fact of being citizens of the Republic of South Africa. Despite this, it is disheartening that most citizens, particularly the poor, indigent and the vulnerable still do not have access to adequate housing guaranteed in the Constitution. This article highlights poor quality housing delivery by the government as the major barrier to the realisation and fulfilment of access to adequate housing. It accentuates that this barrier is intensified because of the endemic corruption by the executive arm of government that have been bestowed with the responsibility to provide adequate housing for all. As part of the solution, the article examines comparative law and international law on the right to access to adequate housing using salient jurisprudence from the courts’ decisions to clarify and ascertain the content of adequate housing.

142 - 163

Authors: Professor Daniela NOVÁČKOVÁ; Associate professor Tomáš PERÁČEK; Associate professor Ľubomíra STRÁŽOVSKÁ; Boris MUCHA

This scientific study analyses in broader terms the financial crime in economic relationships. It introduces concrete facts and processes connected with financial crime that represents the global phenomenon of these days and has significant devastating effects on the economy, society and trust in the legal system. The financial crime has various forms that are more and more sophisticated in the digital era. The study contains updated data about the financial crime in Slovakia and identifies factors having impact on the financial crime. The aim of this study is to contribute to the expert discussion on current economic problems and to point out the responsibility in the management of companies. From among the scientific methods of knowledge we have also used the analytical and descriptive method to approach and analyse the legal situation. By comparative method we introduce different views on the legal regulation and the interpretation of examined notions. The contribution of this study for the theory and practice is pointing out on the undesirable social phenomenon with not only national, but also international dimension.

364 - 389

Authors: Professor Jeton SHASIVARI; Associate professor Bekim NUHIJA

In order to effectively prevent the COVID-19 Pandemic, for the first time in the history of the Republic of North Macedonia by decision of the President of the Republic on March 18, 2020, a state of emergency was established, which in addition to intensified measures to protect public health, also implied the introduction of a special legal regime whose basic characteristics are: deviation from the constitutional principle of separation of powers and taking over by the Government of legislative powers and the opportunity to limit basic human rights and freedoms and to take intervention measures by the executive power in economics, education, labor relations, and other spheres of social life. In this regard, the declaration of a state of emergency has activated the constitutional authority of the Government to perform its legislative function. Unlike other constitutions that regulate in more detail the powers of the Government, parliamentary control, enactment of decrees with the force of law and other regulations, as well as the restriction of human rights in a state of emergency, the Constitution of North Macedonia does not contain special provisions on the government powers, except enacting decrees with the force of law. Due to such a constitutional gap, the question remains whether such regulations remain in the legal system even after the state of emergency ceases. The Constitution of North Macedonia only stipulates that the authorization of the Government to adopt decrees with the force of law lasts until the end of the state of emergency, which is decided by the Parliament, without considering the situation when the state of emergency is declared not by the decision of Parliament but by the decision of the President of the Republic. With this paper authors by explaining the principle of the Rule of Law as a generally accepted International and European standard in such situations, using: normative legal method, comparative legal method, intentional, systematic and objective interpretive methods, will focus on the specific analysis of the judicial control of decrees with the force of law by the Constitutional Court of North Macedonia, in terms of, to what extent the principle of proportionality was respected in the adoption of such decrees which derogated existing laws in order to protect the public health of citizens.

419 - 426

Authors: Professor Yuriy ONISCHYK; Professor Olena MAIDANNYK; Associate professor Yaroslav ZHURAVEL; Senior researcher Pavlo SELEZEN

Double taxation agreement is one of the most widespread type of international treaty regulating financial relations. The efficiency of its application as a source of financial law depends on the features of the legal basis for implementation of its provisions into domestic legal orders of contracting states. Based on the practice of Ukraine, there is an attempt to describe key challenges in application of provisions of international treaties in the context of the requirements of the Tax Code of Ukraine based on the application of comparative method: 1) the legal status of double taxation treaties of Ukraine that are still in effect based on the fact of legal succession of Ukraine; 2) the legal status of protocols to international treaties concluded between competent authorities of contracting states; 3) the legal status of mutual agreements concluded on the basis of the provisions of double taxation treaties.

442 - 454

Authors: Associate professor Mariia KARMALITA; Associate professor Anna NECHAI; Associate professor Tetiana SHOLKOVA; PhD. student Kostiantyn HUBSKYI

This article analyzes the legal basis for the realization of private and public interest in taxation, ways to establish a balance between private and public interests as a basis for a “tax security” of the state. It is stated that: 1) the peculiarity of Ukrainian legislation is the insufficient balance of private and public interests in taxation; 2) the balance of private and public interests in taxation should be implemented at the level of law; 3) the state has not yet established a climate of trust between the state and taxpayers due to imperfect tax legislation, frequent changes in tax rules, low level of professional training of tax officials, low level of service for taxpayers by the tax authorities and lack of transparency in using the public monetary funds by government bodies. The current correlation and the ratio of private and public interest in in the legal literature and in tax legislation is analyzed, recommendations for its improvement are offered. The foreign approaches to the balancing of the private and public interest in the tax legislation has been reviewed. The concept of "tax security of the state" is formulated, the basic requirements to its maintenance are defined, namely: 1) existence of clear transparent procedures of realization of norms of tax laws; 2) existence of a highly professional tax service; 3) existence of established appropriate level of tax culture of the population which allows to increase revenues through voluntary payment of taxes.

466 - 492

Authors: Associate professor Sónia de CARVALHO

Commercial distribution corresponds, in the economic process, to the activity of intermediation between supply and demand, through which the producer, using intermediaries, manages to deliver products and services to consumers, while at the same time seeks to know and satisfy the demands of the latter. Within the industrial revolution, mechanization combined with new production techniques, allowed production directed towards self-consumption to be replaced by surplus production, on a large scale, which created the need to dispose of goods. With the advent of industrial capitalism, the industrial enterprise started to assume the central role of the economic system, with trade being relegated to a secondary role. The producers, in view of the surpluses resulting from mass production, began to feel the need to resort to intermediaries who would assume the distribution of the products in several markets, namely, in distant markets. Distribution gradually begins to become independent from the production, presenting itself as an auxiliary activity for the industry. In this sense, commercial distribution is no longer centred on the physical distribution of products, but takes on a series of activities aimed at adjusting supply to demand, which includes attracting customers, providing after-sales services, financing and risk-taking, consultancy, promotion and advertising, among others. These activities are articulated in more or less complex processes. Thus, distribution begins to represent the main means to increase the company's profits, becoming the object of study and deepening. However, given the insufficiency of the occasional purchase and sale contracts to cover the web of intricate obligations required in the distribution of goods to the various operators of a distribution chain, leading to an undesirable increase in distribution costs, there was a need to create more sophisticated contractual schemes. In contracts, such as franchising, it is possible to witness the productive integration of the distributor into the producer network, accompanied, in different degrees of intensity, by the attribution and recognition of intellectual property rights. This contract was associated, both in the United States, a country where it first appeared, and in Europe, to periods of economic recession, in which excess supply in face of demand will compel producers to conquer new markets. This objective, owing to the difficulties of the producer to assume the distribution of the products, given the lack of capital, characteristic of post-recessive times, will be achieved through the delivery of the distributive function to the distributor, thus seeking, in accordance with the principle of division of labour, achieve greater efficiency. The crisis currently experienced worldwide following the Pandemic COVD 19 and the role that this contract can play in the economic recovery, makes it imperative to revisit this contract in order to approach its modalities, advantages and the legal framework.

194 - 206

Authors: Assistant professor Anna HRISTOVA; Professor Dobrinka CHANKOVA

This paper provides an in-depth analysis of a significant global challenge the international organizations are faced within the 21st century - climate change. Climate change has detrimental effects on international security and stability. In the past decades, humanity has faced emerging natural occurrences such as the increase in the World Ocean level, higher frequency of monsoon rainfalls, impaired conditions of the ecosystems in the rain forests. The massive population increase in Africa and South Asia also points to the fact that natural resources are not infinite, and their spare use becomes a priority of worldwide importance. Managing climate change is a global problem, the solution of which mandates the unified efforts of the entire international community. And this is where climate diplomacy comes at play. The efforts of climate diplomacy need to be focused on two primary directions. The first priority is limiting global warming under 2°C compared to the pre-industrial levels and taking actions to reduce the harmful emissions of greenhouse gases. The second priority is about taking adequate measures to handle climate change consequences, amongst which the so-called climate migration.

222 - 238

Authors: Lecturer Ovidiu Ioan DUMITRU; Andrei Viorel TOMESCU

In the context of current pandemic crisis due, social distancing and quarantine measures were imposed by states due to the high risk of infection by going out of the house for buying the goods and services that are required. Naturally, there has been an increase in online acquisitions, use of online entertainment and online tools for professional purposes. This has increased the level of demand alongside the consumption in the online sector which forces the suppliers to become more inventive in order to sell their products and services and make them more accessible, price wise, in better meet the expectations. Unfortunately, this being a highly abrupt shift with no precedence, forcing the traders and providers in the online sector to cut corners in order to keep up and, as a consequence, may affect the consumers. All these being said, although we speak about unprecedented context, the European Union, over the last two decades, has enacted more directives and regulations in order to keep up with this market’s unique and high innovation rate with the goal to ensure the consumer’s protection. This papers analysis the evolution of the European Consumer Law starting with the minimum harmonisation approach and getting to new acts which try to fully harmonise the area for the attainment of a functional internal market, a Single Market which is, nowadays, pressured by the digital revolution and social distancing to change perspective, as customers are interacting with the business in different ways they did once and the digital content is becoming the main product or service to be supplied.

255 - 278

Authors: Associate professor Cristina Ioana FLORESCU

In the last decade, a constant concern became the extent to which arbitration is and can be characterized as an efficient process. Among the arbitration advantages, the speed and the reduced costs of this alternative method of dispute resolution were always mentioned, as an incentive in promoting and attracting users. One of the ongoing debates in international arbitration is whether the arbitration procedure could be faster and cheaper than litigation in front of the state courts and how to increase the recourse to arbitration by promoting a more efficient conduct of the proceedings. This article mainly describes how the arbitration specialists (institutions, arbitrators, parties and counsels), by respecting and adopting innovative instruments in the field, can contribute to the fairness and efficiency of the international arbitration process in which they are involved, in order to respond to the arbitration community most recent requirements related to transparency, predictability, security, accuracy, compliance and diversity. This contribution enumerates and stops on some current and interesting instruments which contribute to the efficiency of the arbitration, promoted by the arbitration community based on the practice in the field and which arouses the interest of the specialists. Some of those are not sufficiently convinced that these tools will be able to contribute in the long-term to the achievement of the cherished efficiency without affecting the advantages and the basic principles of the arbitration.

289 - 307

Authors: Student Botond Zoltán PETRES

It is recognized for millenniums already that outside of the written and codified law, custom can also function as a source of law if certain criteria are fulfilled. Even though modern lawmaking in civil law controls the possible situations when usages can intervene, in case of international commercial law the application of usages is much wider. As international trade was growing in the past century in an unprecedented manner, the number of international transactions grew exponentially. Also, the field of international commercial law consists mostly of soft-law sources due to the fact that states hardly obtain a consensus in regulation. Therefore, the usage created by the general practice of actors of a given field, and also the practice which is not based on contractual provisions between trading partners shall be taken into account. The structure of usage remained mostly the same for centuries, but due to that, this consuetudo might have fallen into desuetude. The problem with these is the fine line that exists between custom and usage, the existence of a usage and a practice which is unable to act as a source of law. We only see the mask – and behind every mask... is another mask.

328 - 334

Authors: PhD. Ellyne Dwi POESPASARI

Minangkabau tribes or Minangkabau (often called Padang people)) are tribes originally from West Sumatra, Indonesia. This tribe is famous for its customs and its matrilineal kinship system (maternal or female lineage), where the position of female takes precedence over male. Customary law norms indigenous societies of Minangkabau after Judge Decision are a change. On the legal concept of the inheritance of Minangkabau customary, wife cannot be the heir of her late husband. Within the judges' decisions, the widow's status as the heir to the property of her husband gaining recognition. Therefore, Judge's rulings are a contradictive rule compared to the norm of Minangkabau customary law which they embrace Matrilineal kinship system. While there is no clear definition of widow and her children (both male and female) not become the heirs of her late husband or father. In Minangkabau, if there is a property from late husband or father then the right to inherit will be given to his sister and niece. Thus, the existence of new jurisprudence is a new breakthrough to make a new development of value on the old customary law toward the value of new customary law.

36 - 55

Authors: Professor Dan Claudiu DĂNIȘOR; Assistant professor Mădălina Cristina DĂNIȘOR

The order of liberal political systems is the result of the dialectic between objective and subjective. It is based on the understanding of freedom as a formal, constitutive condition of society. Totalitarianism denies this dialectic, while altering at the same time the objective and the subjective meanings of order. This is why they cannot be valid legal orders, either in the objective sense, or in the subjective sense. The purpose of our study is to analyze the arguments that support the idea that the “concrete” orders of totalitarian regimes cannot be considered objective legal orders. The arguments are structured in four directions of analysis: 1. basing totalitarian order on legitimacy eliminates the need for legality; 2. totalitarian order is not a system of norms, but one of forces; 3. in totalitarian orders the distinction between norm and measure is no longer made; 4. the rules generated by totalitarian order are no longer the result of any institutionalization. The conclusion that emerges from these arguments is that in totalitarian systems objective law does not exist validly. If the Nazi and the communist languages still retain the term “law”, totalitarian thinking destroys the very concept of law

69 - 79

Authors: Assistant professor Avdullah ROBAJ

As a legal notion, freedom of work and the right to work are respectively the freedom and the right to work or not to work. This thesis is closely related to the action rule of the labour market supply and demand law. Kosovo, on national level, has promulgated a number of laws deriving from labour law, adapting them to international laws and European Union standards. This approach of Kosovo has to do more with its needs and aspirations to join international organizations. The purpose of this paper is the research through statistical data and facts published in the annual reports of state bodies and nongovernmental organizations on the practical implementation of the European Union and the International Labour Organization labour legislation and standards in the Republic of Kosovo. Empirical character research findings have concluded that labour rights violations in Kosovo are evident and widespread both in the public and private sector, without exception, and these labour rights violations continue.

94 - 101

Authors: Assistant professor Andreea STOICAN

The environmental policy is a relatively new field in the European Union, even at the level of the current year, 2019. Although initially it was based on the creation of general measures programs, within which certain specific measures were adopted, currently, the permanent existing global climate changes can no longer be ignored by national, European or global organizations and institutions. As such, in time, especially in the last decade, the European Union has been forced, by virtue of the principles governing the relationship between the EU law and that of the Member States, to find solutions to the serious problems caused especially by pollution, but also by a series of other climatic causes. Thus, the environmental policy of the European Union is based on a number of principles, including that of precaution, prevention, diminish of pollution from its source, as well as that of the polluter's liability. In this regard, the present paper aims to summarize the measures taken so far at the level of the European Union, as well as to identify additional protective measures that will also lead to the fulfillment of the European Union Sustainable Development Strategy.

116 - 129

Authors: Associate professor Gabriel Liviu ISPAS

Brexit represents one of the biggest challenges for the European Union since its establishment. The recent political and institutional developments, the decision of the British Parliament not to accept the exit of the United Kingdom from the European Union without a signed agreement, the decision to negotiate a new deal that must be ratified by both the Member States of the EU and the British Parliament, points towards the fact that neither the Union nor the United Kingdom are effectively prepared for such a decision. The paper presents the recent evolution of Brexit, as well as its possible consequences regarding the internal market. We will present, above all, how the free movement of goods will be affected and how the free movement of persons will be realized, for lucrative purposes. A political analysis of the events will be conducted, as well as an analysis of the applicable normative acts in question. The implications of Brexit on the economy of the Member States and on trade within and outside the European Union will be evaluated, both quantitatively and qualitatively

149 - 161

Authors: PhD. Leonid TYMCHENKO; PhD. Valeriy KONONENKO

Nowadays academia offers new approaches to understanding of state borders, territorial disputes, armed conflicts and wars. While the principles of territorial integrity and inviolability of frontiers are central to the current system of international law, they are sometimes inoperative before the law of force. Moreover, the peaceful resolution of territorial disputes contributes to international security. The purpose of this article is to examine the problems of the legitimacy of acquisition of territory in the past and present, as well as to provide insight into some issues related to the state sovereignty over disputed areas in international territorial disputes. The historical, comparative, inductive methods were used while researching the problem of legitimacy of acquisition of state territory. The study may be implicated during taking decisions concerning investments in Crimea, Transnistria or Nagorny Karabakh.