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Open access

Marijan Pavčnik

Abstract

In the context of a normative concretisation of the statute, the term “statute” is not synonymous with the law that can be repeated in light of a concrete case. In this context, the interpreter is the one who (1) “reconstructs” the possibilities contained in the statute, (2) articulates more precisely the contents of these possibilities, and (3) chooses the combination of possibilities that corresponds most closely to the legally relevant features of the life case (which also must be interpreted). Thus the interpreter’s productivity consists in recognizing a legal provision as referring to a type of conduct − for example, as recognizing that the statutory signs “exceeding the speed limit” refer to, inter alia, a type of behaviour known as driving a car too fast through a town. Moreover, the decision-maker has decided the case just this way, which means it is the decision-maker and not the “statutory text” that has excluded the possibility of any other legal solution (e. g. of driving too fast in a state of emergency). The statute refers to cases that will only occur in the future and are at the present moment, in a more or less defined way, envisaged by the legislator. Irrespective of the extent and intensiveness of the envisaging, the interpretation must remain true to the core meaning of the norm and to the semantic possibilities of the statute text.

Open access

Stephen R. Tully

Abstract

This article identifies 8 key lessons for those States contemplating a free trade agreement with the United States (U.S.) arising from Australia’s experience. The standards of intellectual property protection under the Australia-U.S. Free Trade Agreement and their impact on pharmaceutical prices in Australia are a particular focus. Prospective parties must first conduct a national interest self-assessment which reviews the desired strength of intellectual property protection under national law and their preference for using flexibilities available to them under the existing international intellectual property rights framework. The United States negotiates free trade agreements in light of previous ones, negotiating outcomes obtained in other fora and the decisions of international trade tribunals. Negotiations typically occur behind closed doors, which is a process having adverse implications for transparent decision-making, public consultation periods and contributions from interested non-governmental actors. A concluded agreement will build on prior treaties and influence the course of future international arrangements. But the impact of a United States free trade agreement is not always clear, including because of a lack of reliable data, and the extent of national legal change is a contested issue given existing reform agendas and external influences. The United States seek to redesign national health care systems in its own image and had little success in Australia’s case. National legal systems need not be harmonised: although there can be some convergence in intellectual property rights regimes, significant differences may also remain. Negotiators must reconcile competing cultures, philosophies and perspectives between States for a free trade agreement to be worthwhile.

Open access

Kristi Joamets and Tanel Kerikmäe

Abstract

The current understandings and practices related to biological and social fatherhood raise a crucial legal question about which model of fatherhood determination should be adapted to contemporary society: the model of a biological or social father bearing the rights and obligations related to the child. The general ideologies of being a father and the application of different approaches have been analysed comparatively, also trying to provide the best legal policy to consider when interpreting the rules of parenthood in Estonian Family Law Act and the Estonian legal practice. The paper considers the emerging legal concept of social fatherhood to be an inevitable prerequisite for protection of the interest of the child.

Open access

Panayotis M. Protopsaltis

Open access

Jaemin Lee

Abstract

The United States concluded free trade agreements (FTAs) with Korea, Peru, Panama and Colombia in late 2000s. Since the four FTAs were negotiated and concluded largely contemporaneously, key traits and characteristics of the agreements are similarly formulated. In light of this, dispute settlement mechanisms (state-to-state dispute settlement proceedings, investor-state dispute settlement proceedings, and Joint Committees) of the four FTAs also share commonalities. At the same time, new ideas and suggestions are explored in the four FTAs. While issues and disputes under the four FTAs have arguably not been ripe for the constitution of dispute settlement proceedings under the FTAs at the moment, sooner or later they are likely to end up in the dockets of the respective proceedings. The key elements of the four FTAs’ dispute settlement mechanisms are also adopted in other FTAs that the United States have concluded afterwards including most recently the Trans-Pacific Partnership, since these elements are reflective of the general scheme of the United States in their FTAs. What remains to be seen is how the general scheme of dispute settlement proceedings can be applied and implemented in actual settings when the FTAs produce increasing numbers of disputes in the future. In particular, marked disparity in human and financial resources between the United States and the four FTA’s parties may bring about disparate impacts and consequences among contracting parties. Continued attention needs to be paid to the development concerning implementation of the four FTAs, in particular their dispute settlement proceedings.

Open access

Marija Karanikić Mirić

Abstract

Sometimes parties to a contract agree on the wording of the contract, but disagree about its meaning. In such cases, the goal of purposive interpretation is to identify a legal meaning, within the limits of the language actually used, which best achieves the purpose of the contract in question. This paper presents the main features of Justice Aharon Barak’s theory of purposive interpretation of contracts, and examines his notions of subjective and objective purposes. Barak’s theory demands, at some point along the process of interpretation, that the judge determine the actual joint intent of the parties, as it was at the time of their entering into the contract, and in the situation where the parties themselves disagree over it. This requires a posterior inquiry into the true state of mind of other persons. The past intentions of others are regarded as historical-subjective psycho-biological facts. The author questions what goes on behind this subjective rhetoric, starting from the presumption that the inner reality of another person’s will, i.e. their past or present intentions, cannot be learned as a physical reality, but only as a socially constructed fact. Furthermore, the author examines the seemingly unwanted merging of Barak’s subjective purpose of contract with his objective purposes of contract at the lower levels of abstraction.

Open access

Yevhen Pysmenskyy

Abstract

This article studies the specifics of national criminal policy implementation under the influence of extraordinary geopolitical factors on it. Such policy will be reviewed with Ukraine serving as an appropriate example. This country has been recently forced to adjust its own ways of implementation of the state policy against crime based on atypical modern challenges and threats. This refers to the special nature of a hybrid war, which has been actively fought on the territory of Ukraine since 2014. The author examines two key areas of criminal policy (definition of the limits of criminal behavior and establishing criminal law consequences of the committed offenses), implemented under the extraordinary circumstances of hybrid war. Symptomatic features of the hybrid form of foreign aggression are defined in the piece. At the same time, options of criminal law in combating and preventing such aggression are researched.

Special focus is placed on new acts that have been criminalized as well as those that might need further criminalization. Attention is paid to the issues of criminal law protection of national and historical memory, and to the concept of journalism related crimes. The importance of amnesty as an effective tool to resolve conflicts between individual and state is also emphasized in the article.

Open access

Albertas Milinis and Kristina Pranevičienė

Abstract

This article deals with the issues concerning the communication between the national courts of the European Union Member States and the Court of Justice of the European Union via the preliminary ruling procedure. The doctrines of acte clair and acte éclairé are described briefly in the article. The authors explicitly investigate the national court’s right to apply to the Court of Justice of the European Union and the obligation to apply to the Court of Justice of the European Union for a preliminary ruling. The recent tendencies in the jurisprudence of the national courts of the Republic of Lithuania while applying for preliminary rulings are revealed.

Open access

Rodrigo Monardes V

Abstract

The negotiation of trade in services in the context of a free trade agreement is particularly challenging for developing countries in view of the diverse nature of the services sector, the broad regulation applicable to the supply of services, the different modes of supply and the different approaches available for the adoption of the rules governing bilateral trade in services. Two main approaches are available for these negotiations, the General Agreement on Trade in Services (GATS) model or positive list approach, and the North American Free Trade Agreement (NAFTA) model or negative list approach. Even though these two models are similar with respect to the substantive obligations covering the conditions for supplying services, they differ significantly with respect to the manner and the structure of commitments.

Chile faced significant challenges in concluding a free trade agreement with the United States. The importance of the trading partner and its market for Chilean exports meant that Chile had to adopt a number of unfamiliar features, particularly in relation to financial services and e-commerce, in order to facilitate and consolidate the process of opening its market. This article focuses on the chapters of the United States-Chile Free Trade Agreement addressing trade in services, i.e. cross-border trade in services, financial services, telecommunications, temporary entry of business persons and some provisions on e-commerce. Some investment issues will also be address, particularly those interacting with cross-border trade in services. Finally, the article explains the relevance of this approach as a model or basis for bilateral and plurilateral negotiations on trade in services for the Pacific Rim countries and as the preferred model for services trade liberalization for the Latin American countries.

Open access

Stephan W. Schill and Heather L. Bray

Abstract

Mega-Regionals are transforming and shaping the future of international investment law, concerning both the settlement of investment disputes and the substantive disciplines governing investor-state relations. Focusing on the latter, the present article shows how Mega-Regionals depart from the so far dominant European model of investment protection by going beyond crudely worded post-establishment protections for foreign investment. Instead, Mega-Regionals pursue the twin policy goals of investment liberalization through greater market access commitments and strengthening state control by ensuring host governments sufficient space to regulate in the public interest. In light of these policy goals, and considering the deeper reasons for structural changes to the investment rules in Mega-Regionals, the article argues that the models and conceptual foundations of Mega-Regionals build on prototypes first developed in the context of U.S. and NAFTA investment practices. This suggests that the future of international investment law will be shaped to a considerable extent against the background of U.S. experiences, rather than be forged anew by the mechanics of international diplomacy and negotiation.