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Circumventing Obligations Through Multinational Military Operations: Legal Consequences for Troop Contributing States

Summary

If member States decide to circumvent their international legal obligations by acting through a military operation led by an international organisation, the institutional veil of which provides a shield against their responsibility for possible wrong-doings, an accountability gap can be identified. The contribution explores one of the possibilities for addressing this gap, the prohibition of circumvention, as enshrined in Art. 61 DARIO. The provision stipulates the possibility to hold the troop contributing States accountable. However, arguably the problems with international organization’s accountability gap cannot be solved in most cases by holding the States responsible over the actions of the MMO. Problematic appears such solution against the necessity to satisfy the thresholds of intent to circumvent and causing the organization to act in certain way, as required by the principle enshrined in the Article 61 DARIO.

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Constitutional aspects of the reform of the Polish justice system in 2017–2018

Summary

The article concerns the issue of constitutionality of the reform of the justice system in Poland in 2017–2018, which resulted in significant changes of the functioning of the National Council of the Judiciary and the Supreme Court. When discussing the reform of the Supreme Court, the author first of all points to the constitutional problems associated with the premature retirement of some of its judges, which is also connected with the interruption of the six-year term of the First President of the Supreme Court. A separate issue discussed in the article is the introduction to the Supreme Court the lay judges, which is a unique phenomenon on the global scale. The analyses lead the author to formulate final conclusions, also referring to the European regulations and to refer to the unconstitutionality of the solutions adopted by the Polish parliament.

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Europeanisation effects in the court jurisprudence

Summary

Nowadays, the notion of Europeanisation, which has formerly been used as a description for multi-level governance, prevails also in the area of law. Legal Europeanisation is a process that appears in the interactions of legal systems of the Member States between one another, as well as between European law and the laws of the Member States. Its main area is the appearance of European legal elements in the legal practice of Member States. At some point, the court practice of Member States may affect European law, as well. Due to the occurrence of comparative law elements, interactions can be observed between courts in the EU. According to our basic premise, the interactions can be best observed through the practice of different courts. This article aims to prove this premise by establishing different guiding principles through further Hungarian court decisions in the field of civil law.

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From Judicial Transplants to Judicial Translations: Constitutional Courts in Southern Africa – A Comparative Review

Summary

The contemporary legal landscape in Southern Africa and its responsiveness to the challenges in the region can be explained in many ways. Part of the explanation has been the idea of legal transplants—which entails borrowing and adapting legal norms, and structures from different legal systems in order to resolve legal problems in the region. The end of apartheid and other rapid changes in the region—political, racial, economic and social—has directly placed the courts on the frontlines of human rights protection especially on socio-economic rights and other overarching concerns of law reform. The adoption of constitutional courts in some of the countries, and consequent judicial activist turn in the jurisprudence of courts in the region generally; has inserted the courts into the mainstream of policy deliberations. Thus, this paper claims that legal transplant per se does not explain the full reality of what is going on in the region—in terms of nomativization, transmission, adoption, and adaptation of legal ideas within the respective systems in the region. It further claims that a mesh of different understandings and approaches to legal comparison and development is more suitable as a method of studying pluralist complex systems as we see in the region. Hence, the notion of judicial translation—the judiciary forming the membrane, purveyor and capillary of legal transmission—as an essential lens through which we can better view and understand the legal evolution in the region. Taking the institution of courts – particularly constitutional courts—and examining their jurisprudence as epitomized in some of their decisions of finality—the work seeks to begin a meaningful deliberation about the role of courts in law, social change, and policy in the region. It is divided into three major parts for ease of discourse. It is hoped that this would be a fitting exordium into the more significant meaning of legal transplant through judicial intervention in otherwise predominantly policy questions in the Southern African region.

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The Highest Rate of Public Trust in Judiciary in Twenty Years in Lithuania: Trend or Coincidence?

Summary

Until 2018 public trust in judiciary in Lithuania was more negative than positive. Results of 2018 are exceptional as show the highest rates of trust in 22 years. The aim of this article – to find out if these results are coincidence or indicate increase of public trust in judiciary. To explore this issue this paper will analyze the concept and dynamics of trust in judiciary, possible measures of professionalism and examine how these aspects are reflected in Lithuanian judiciary. Our research reveals two main reasons for the improved trust in the judiciary: good performance including use of technology and greater transparency that provides the public greater access to information about the justice system.

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Judicial Approaches to Political Questions: A Comparative Study of the United States and South Korea

Summary

The United States Supreme Court (USSC) and the Constitutional Court of Korea (CCK) have adopted sharply different positions regarding the justiciability of “political questions.” On one hand, the USSC has generally refrained from adjudicating political questions, as shown in Nixon v. United States, Terlinden v. Ames, and Goldwater v. Carter. On the other hand, the CCK has regularly tried cases concerning political questions, as demonstrated in The Impeachment of the President (Roh Moo-hyun) Case and The Comfort Women Victims Case. The text of the U.S. and South Korean constitutions, their views about the proper role of the judiciary, and prudential factors explain why the USSC and the CCK have taken different approaches towards adjudicating political questions. Furthermore, the experiences of each country provide important lessons for the other: on one hand, the CCK experience has shown how a more active approach towards reviewing political questions can (1) create legal standards that keep government branches accountable in novel situations, (2) help prevent a political branch from acquiring tyrannical rule, and (3) enhance the judiciary’s legitimacy in the public. On the other hand, the USSC experience has demonstrated how a more restrained approach towards reviewing political questions may (1) strengthen the commitment of all branches to the principle of separation of powers (2) enhance the consistency and predictability of judicial decisions, and (3) lead to resolutions of issues by the branch with the most training and expertise.

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The Kelsenian Model of Constitutional Review in Times of European Integration – Reconsidering the Basic Features

Summary

The paper deals with the changes in the centralized (Kelsenian) model of constitutional review resulting from a state’s membership of the EU, which unequivocally demonstrates the decomposition of the classic paradigm of constitutional judiciary. The main point raised in the paper is that European integration has fundamentally influenced on the four above-mentioned basic elements of the Kelsenian model of constitutional review of legislation, which are the following: the assumption of the hierarchical construction of a legal system; the assumption of the supreme legal force of the constitution as the primary normative act of a given system; a centralised model of reviewing hierarchical conformity of legal norms; coherence of the system guaranteed by a constitutional court’s power to declare defectiveness of a norm and the latter’s derogation. All its fundamental elements have evolved, i.e. the hierarchy of the legal system, the overriding power of the constitution, centralized control of constitutionality, and the erga omnes effect of the ruling on the hierarchical non-conformity of the norms. It should be noted that over the last decade the dynamics of these changes have definitely gained momentum. This has been influenced by several factors, including the “great accession” of 2004, the pursuit of formal constitutionalization of the EU through the Constitutional Treaty, the compromise solutions adopted in the Treaty of Lisbon, the entry into force of the Charter, and the prospect of EU accession to the ECHR. The CJEU has used these factors to deepen the tendencies towards decentralization of constitutional control, by atomising national judicial systems and relativizing the effects of constitutional court rulings within national legal systems. The end result is the observed phenomenon, if not of marginalisation, then at least of a systemic shift in the position of constitutional courts, which have lost their uniqueness and have become “only ones of many” national courts.

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Limitations on the Choice of Law Resulting from the Protection of Third Parties in the Polish System of Private International Law

Summary

The article concerns the limitations of the freedom of shaping the legal relationship by the parties on the grounds of private international law binding in Poland. It is devoted to the specific issue of limitations of the effects of the choice of law on the grounds of the protection of third parties. The rules related to this issue have been included both in the sources of European law (“Rome I” and “Rome II” regulations, as well as in the Polish law – Private International Law of 2011). They concern the choice of law for contractual and non-contractual obligations, for a power of attorney and for matrimonial property regimes. The purpose of these rules is to protect the knowledge of a third party or the rights acquired by them. The article considers various possibilities to exclude the effectiveness of a law chosen for the protection of a third party, while respecting the wills of the parties to the legal relationship as much as possible.

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Particularity of Recognition and Enforcement of Foreign Arbitral Awards in the Russian Federation: Public Policy

Summary

This article elaborates on the issue of recognition and enforcement of foreign arbitral awards in the Russian Federation. It is common knowledge that foreign companies seeking R&E in Russia suffered damage because of the broad interpretation of Russian public policy in the past decades. However, it is uncertain how the present judicial development appears like and where it will lead in the future. The article specifically considers two basic ideas on the issue at hand: one is slightly critical (Karabelnikov) while the second is rather optimistic in regard with the recent development (Zykov). The main goal is to introduce the issue to the respective readers and to try to inflame a discussion.

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Post-Brexit. The Politics of Resentment and EU Reintegration: Creating A New Legal Constitution for Capitalism

Summary

The GeoNOMOS model introduced in Part I, is a qualitative descriptive taxonomy updating traditional notions of sovereignty for this century and was generally applied to the 2016–2018 BREXIT divorce negotiations between the U.K. and the remaining 27EU suggesting a reintegration and redefinition of the legitimate expression of sovereignty in the region.[Diagram 01] The taxonomy depicts a framework of liberty that functions simultaneously within the core function of the State at the intersection of a vertical axis depicting a State’s domestic operation and a horizontal axis depicting the State function as part of an international community of States. The GeoNOMOS confirms two primary roles for the 21st century sovereign State: [1] to protect participatory democracy based on individual liberty. This is generally accomplished by the State supporting broad diversity and its cultural heritage as well as fully funded, functional and integrated domestic institutions along its vertical axis, and [2]to promote an enterprise of law supporting a global society of economic traders along its horizontal axis. This primary role of the State occurs at its core when all three essential capital resources –economic capital, social capital, and human capital – remain highly integrated and in balance. Part II specifically highlights economic capital development and utilization at the core function of the State – a shifting dynamic that has influenced most all of the BREXIT 2017–2019 negotiations to date. The December 2018 EU – BREXIT Withdrawal Agreement a Declaration repeatedly failed U.K. parliamentary adoption between January – June 2019 forcing Theresa May’s resignation as Prime Minister. The most contentious quagmire of the BREXIT Withdrawal Agreement was in the structuring of rules of law around regulating economic capital, financial markets, and global marketplace function for any future UK – EU partnership. The political chaos around BREXIT was feared by the EU political elite in terms of its disruptive impact on the May 2019 European Parliament elections and future EU budget planning and priorities. But the 2019 EU Parliament election was already a process divided on questions of political party legitimacy since 2014 with a deepening of the “politic of resentment” on the Continent between 2016–2018.The EUP elections of May 2019 have caused the biggest political shift in the EU for forty years. Part II engages this “politic of resentment” best described as a steady rise of populism across the region and Continent that challenges the post-World War II notions of liberal democracy, the values of EU solidarity, and the traditional role of the “welfare state.” More to the point, the U.K. electorate was not the only EU member outlining an action plan based on its politic of resentment in the 2016–2018 national election cycles – electoral politics in Greece, Italy, Poland, Hungary, Austria, Germany, France, Czech Republic, and Spain aggressively promoted rights of sovereign States. These national elections and the 2019 EUP elections attacked fragmented EU economic policy and highlighted the democratic imbalances of EU institutions in their day-to-day operations. These calls for an institutional “course correction” within the EU are shattering fifty years of solidarity and crying out for a redefinition of democracy and new rules of law for economic models relevant to the 21st century. Economic, legal, and historical research by Piketty, Rodrik, Grewal, and others who support democracy, point to documented gaps in economic capital at the level of the State, in global capital formation and in growing wealth inequality, all alarming trends which are part of the “politic of resentment”. Their research calls for creating a new 21st century legal constitution for capitalism as a course correction for the first legal constitution for capitalism, eg, colonialism. Picketty and Grewal argue new approaches are needed to replace both the post-war “welfare State” [1945–1979]and now, the capitalist ideology of neoliberalism [c.1980–2010], decried as defunct even by the International Monetary Fund. Part II suggests a legal reconfiguration for economic capital development and utilization –one operating inside the GeoNOMOS framework of liberty, first to support its four cornerstones and its enterprise of law and, then, based on those choice sets, to design a new paradigm for capitalist globalization in the marketplace.1

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