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Departamentul de Drept al Academiei de Studii Economice din Bucuresti

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Societatea de Științe Juridice și Administrative



ISSN: 2247-7195
e-ISSN 2248 – 0382
ISSN-L 2247 – 7195


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Volum 10, Numarul 2, Iunie 2020

Cuprins



Articol 1 - The European Union investment policy in Asia in the light of „Dawn of an Asian century in international investment law”

Rezumat

After its gradual establishment, the investment policy of the European Union experienced turbulent times when the EU and the United States commenced negotiations on the Trans-Pacific Trade and Investment Partnership. While the public and political focus concentrated on the transatlantic relations with the United States (TTIP) and Canada (CETA), the EU has steadily progressed at different paces with third countries in Asia where it commenced trade and investment negotiations with Singapore, Vietnam, Myanmar, China, Thailand, the Philippines and Indonesia among others. This paper seeks to evaluate how the Union has been successful in its “Asia strategy” in the field of investment negotiation and promotion of its reform approach to the investment protection regime. It offers an overview of the EU investment negotiations with the individual partners in the Far East and explores these relationships and their potential implications. It concludes that it is not surprising that the EU already persuaded the first countries in this region about its novel approach because of their strong motivation to conclude agreements with the EU that will ‘modernise’ and ‘harmonise’ the existing investment protection. On the other hand, challenges persist as it remains to be seen in which direction Asian actors will push for in the development of global investment governance.
Key-words: European Union; International Investment Law; Asia; Free Trade Agreement; Investment Protection Agreement.
JEL Classification: K33



Articol 2 - Climate diplomacy – a growing foreign policy challenge

Rezumat

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.
Key-words: climate diplomacy, climate migration, climate change, challenge, international migration, sustainable development.

JEL Classification: K32, K33



Articol 3 - Local self-government reforms in Europe: legal aspects of considering the communities' social identity

Rezumat

The implementation of local self-government reform is closely linked to the social identity, a concept that includes common territory of residence, history of origin and development, social interaction, moral standards, values, traditions, interests, habits and needs. In order to study the realm of different European countries in implementing of the decentralization policy and the current state of regulation of the local-self government issues with respect to the social identity the comparative-law, formal and legal, and system-structural methods were used. The cross-national comparative study reveals that in Austria, Spain, France, Poland, the formation of local communities’ associations was preceded with regard to the economic criterion and the permission of the executive branch, while the opinion of local communities’ members is only advisory. In Estonia, the legislation regulates the procedure on the formation of unions of townships or cities, as well as a list of issues to be discussed with local communities’ members. However, the decisive move is still left to the government. In Ukraine, it is statutory that a decision to form a united territorial community could be adopted only after positive discussions with members of the relevant local communities.
Key-words:social identity, local community, local self-government, local self-government bodies, local government reform.
JEL Classification: K23, K30



Articol 4 - European consumer law in the digital single market

Rezumat

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.
Key-words: consumer protection, European contract law, digital single market, digital content, online sales, consumer remedies, maximum versus minimum harmonization.
JEL Classification: K12, K13, K22, K23, K33



Articol 5 - The implementation process of the European Union law using the example of Polish and Irish labor laws

Rezumat

The article aims to compare the implementation process in Polish and Irish labor laws. The article discusses the concept of labor law, Europeani z ation and the implementation issues. It also analy z es the process of implementing European Union (EU) law into Irish and Polish labor laws. The article outlines research on the similarities a nd differences in the process of implementing EU labor law into the internal labor laws of Poland and Ireland. The issue is analy z ed using the example of Irish, Polish and international views of legal doctrine. The article presents the views of such legal theorists as: K. Edwards, S. Robinson, C. Radaelli, L. Florek, L. Mitrus and F. von Prondzynski.
Key-words: European labor law, internal labor law s of EU member states, law implementation process, Europeani z ation of law, Polish and Irish labor laws
JEL Classification: : K31, K33



Articol 6 - Emerging tools to attract and increase the use of international arbitration

Rezumat

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.
Key-words: arbitration, efficiency, soft law, emergency arbitrator, Prague Rules.
JEL Classification:
K33, K41



Articol 7 - The future of cross border mergers in the light of the new European Union provisions. Their implementation in Romania

Rezumat

Seeing the new Directives that modified Directive no. 2017/1132 of the European Parliament and of the Council of 14th of June 2017 relating to certain aspects of company law (herein after the Directive), one can't help but wonder how much of the Romanian legislation will need specific modifications in order to comply with the future provisions, in the field of cross border mergers. As of the end of last year, the new provisions of the Directive (EU) 2019/2121 of the European Parliament and of the Council of 27 November 2019 (herein after the Amending Directive) have entered into force and therefore we may conclude that regarding cross border mergers, the Directive itself is amended and will thus bring modifications to the national legislations in place.
Key-words: Directive no. 2017/1132, cross border merger, European Union, Romanian legislation, future amendments to Law no. 31/1990.
JEL Classification: K22, K29, K33



Articol 8 - Behind every mask… is another mask – structural considerations on trade usages in international commercial law – dissolving some confusions

Rezumat

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.
Key-words: trade usages, international commercial law, practice, implied terms, INCOTERMS, conflict between usage and practice.
JEL Classification: K12, K15, K22, K33



Articol 9 - Historical development of refugee framework in Africa

Rezumat

The problem of refugees has existed in the world since human existence. Individuals fled to seek sanctuary in another place to avoid persecution. Religious institutions have played a significant impact in the protection and care for refugees. Slavery has also contributed to the existence of refugees especially in Africa. Arabs, Europeans and Americans came to Africa and engaged in slave trade. This business has contributed to the development of economies in some developed nations. Most African countries have lost their active citizens in slavery. Many people also fled their place of origin to avoid the danger of being taken in slavery. Furthermore, colonialism has also entrenched the refugees in Africa. In order to get independence, individuals had to flee their countries and start engaging in liberation wars. Many people became refugees in their fight for independence. After the independence, the problem of refugees has continued to persist as governments of many African states do not respect nor protect human rights of their citizens. Currently, refugees continue to exist in Africa as some states persecute their citizens due to their tribe, race, religion, political opinion, sexual orientation and wars. In order to eradicate the problem of refugees, states need to create an environment that is conducive to the protection of human rights of their citizens in all their activities.
Key-words: refugees, asylum, religion, slavery, colonialism.
JEL Classification: K33, K38


 

Articol 10 - The development of inheritance customary legal norm on Minangkabau indigenous society

Rezumat

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.
Key-words: Minangkabau Tribes, legal norm, inheritage customary law, indigenous society.
JEL Classification: K15

 

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