Revue éditée par:
Editura ASE
Département de Droit de l'Académie d'Etudes Economiques de Bucarest


Société des Sciences Juridiques et Administratives

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

2 numéros / an







Article 1 - Whistleblowing in the Slovak labor law regulation


Corrupt behaviour is a common practice with negative effects on the whole of society. For instance, if a company wins a public procurement contract in an unfair way, it enriches itself not only at the expense of competition, but also at the expense of the whole of society, as the best applicant has not necessarily been selected within such a procurement. The same applies in the case of a supplier launching an unsafe product onto the market, threatening the health of everyone who buys it. In order to prevent such malpractice and eliminate their negative effects, the cooperation of persons aware of such behaviours is necessary. In order to ensure such cooperation, however, the existence of instruments protecting whistle-blowers against various sanctions (especially by employers) is necessary. As Slovak legislation did not include a regulation of procedures for reporting malpractice and protecting whistle-blowers, a new law aimed at solving such issues was enacted in October, 2014. The given legal regulation took effect on January 1, 2015. This paper endeavours to provide basic knowledge of the environment that the given regulation entered, as well as information on the possibilities of individuals to protect social interests on its grounds.
Keywords: malpractice, antisocial activity, employee, protection of a whistle-blower of a serious antisocial activity, report..
JEL Classification: K31

Article 2 - The business judgement rule – approach and application


The business judgment rule represents a central doctrine of corporate governance, due to its major implications on corporate directors' liability and to its influence on the relationship between shareholders and the board of directors. The interpretation of the Rule as a behavioral standard or as an „abstention doctrine” can determinatively influence the liability proceedings against directors who acted in consideration of their fiduciary duties. This paper aims at analyzing the national legal provisions of the Business Judgement Rule and the compatibility of the legal provisions with the established interpretations of the Rule that can be found in the foreign literature. Absent a case law that clarifies de approaches of the Business Judgement Rule by the national courts, the research analyzes the traditional Common Law approaches of the Rule and the obstacles which hinder a faithful transfer of the Rule in Romania. The objective of these identifications is to draw de lege ferenda proposals for an efficient application of the legal provisions in the future. Considering that this Rule is the natural consequence of trust and of the powers granted to corporate directors, the conclusions of the research suggest solutions for the stabilization of the continuous tension of the supreme values of the corporate world: authority and liability.
Keywords: Business Judgement Rule, directors' liability, fiduciary duties, duty of care, Abstention Doctrine.

JEL Classification: K20, K22, K41

Article 3 - Modernisation of EU State aid procedures: are the rights of third parties more protected?


Despite the important role in increasing efficiency of the State aid control and in revealing the existence of State aid, third parties in EU State aid procedures are considered merely as a “source of information”. This article provides a critical analysis of the reforms of State aid procedures from a third party perspective. The reforms are disappointing maintaining the bilateral character of State aid procedures between two main parties the Commission and the Member States concerned and leaving third parties with very limited procedural rights. In addition the hard-law reform of the State aid procedures of 2013 increases the procedural duties of third parties without procedural guarantees and extends the investigatory powers of the Commission.
Keywords: State aid procedures, third party, Procedural Regulation, State aid reforms.
JEL Classification: K22, K23, K33

Article 4 - Genetically modified organisms – European and Romanian legislation


The paper outlines the current European Union legislation regarding biotechnology and specifically the use of genetically modified micro-organisms. The first regulation was issued in 1990 and was updated during the last 20 years. The relevance of the regulation for the industrial and environmental activities is discussed, linking in the context of the other regulations applicable to the biotechnology research and business.
Keywords: Genetically modified organisms, regulation, health, food, European Union, Romania.
JEL Classification: K32

Article 5 - Privatization in the name of public private partnership: the case of Tanzania Breweries Ltd., an evaluation


The policies of International Monetary Fund (IMF) and the World Bank (WB) have made significant impact in most developing countries, particularly in South of the Sahara. Foreign direct investment (FDI) is one of the policies spearheaded by these institutions. Countries like Tanzania, Uganda and Kenya, have experienced a wave of economic reforms in recent years. These reforms, to a larger extent, which have been inspired by International Institutions, have recently faced with a magnitude of concerns which is expressed in terms of whether the right kind of pre-conditions exists for these measures since some of the measures don’t produce the desired outcomes in some developing countries. The thrust of the evaluation has been on whether privatization through Public Private Partnership presents a profitable policy in Tanzania. In other words, if there is any evidence of significant performance of State Operated Enterprises after privatization. This research takes stock of the evidence in pre and post three privatized companies and shows that in competitive environment privatization has been a resounding success in improving performance of public enterprises.
Keywords: privatization, public private partnership, Tanzania Breweries Ltd., the World Bank.
JEL Classification: K11, K22

Article 6 - Theoretical and practical issues relating to the right to the protection of personal data


The legal regime of the right to the protection of personal data is of particular concern in the context of the technological developments that have as a consequence the increased collection and exchange of such data. Information technology and its development constitute forms of evolution of society, but this evolution must take place within the limits of and with respect for fundamental rights as regulated by States’ Constitutions and the relevant international documents. Having regard to the dynamics of these phenomena, timely and continuous adaptation of the legislation is undoubtedly difficult. As a result, an important role in the definition and guarantee of the right to the protection of personal data and the reconciliation with other fundamental rights that also need to be protected is played by national courts (particularly the constitutional courts) and international courts, obliged to carry out an evolutionary and at the same time consistent approach in this matter. The judges’ dialogue is thus the key to ensuring an effective protection of fundamental rights that need to be reconciled.
Keywords: right to the protection of personal data, right to information, review of constitutionality, proportionality
JEL Classification: K23, K33

Article 7 - Analysis of the Portuguese legal framework concerning the safeguarding of employees' rights in the event of the transfer of an undertaking or an establishment compliance with the directive 2001/23/CE of 12 march 2001


The undertaking, business, or part of an undertaking or business can be transferred to another person or corporation as a result of a merger or a legal transfer, transitory or definitive. As a consequence of the transfer, there is subrogation ex lege of the transferee in the rights and obligations arising from the employment relationship existing on the date of a transfer. This issue is of the utmost importance to accomplish the freedom of the employer negotiate the undertaking and the protection of employees' rights as well. The Portuguese legal framework has been shaped by Directive 77/187/ CEE and subsequently by Directive 2001/23/CE. In this paper, in order to assess the compliance of the legal framework concerning the enshrined in Labor Code with the Directive 2001/23 /CE, it will be performed a comparative analysis between both regulations, which will be coordinated with the case law from the Court of Justice and Portuguese Courts. We will conclude that, apart from some issues, the Portuguese labour law regarding the safeguarding of employees' rights in the event of the transfer of an undertaking complies with the Directive 2001/23 /CE and the case law from the Court of Justice.
Keywords: Directive 2001/23/CE, Portuguese Labour Law, transfer of undertaking
JEL Classification: K31

Article 8 - Key criteria in appointment of arbitrators in international arbitration


Maybe in all situations the most important factor is the decision making person. In arbitration this person is the arbitrator. Knowing how to choose your arbitrator is the first step in knowing how to win your case. There are some important criteria that needs to be taken into account when appointing an arbitrator, like the independence and impartiality of the arbitrator, the experience in similar cases, knowledge of the system of law applicable to the contract and other backgrounds.Another important aspect is the number of arbitrators and the advantages and disadvantages of having one, three or more arbitrators. All those issues are very important when drafting the arbitration agreement and in matters of complex contracts it is of high importance to have legal advisors that will help you draft an agreement that will minimize risks and favor efficient arbitral proceedings.
Keywords: arbitration, appointment, criteria of selection, party autonomy, independence and impartiality.
JEL Classification: K33, K41

Article 9 - The role of law as an instrument of communication within legal positivism


This article tackles some aspects concerning the role of law as an instrument of communication from the perspective of legal positivism. The paper presents considerations regarding law communication in relation to legal positivism and scientific positivism. At the same time, the article examines the correlations between the legal communication models and the various inclinations developed under legal positivism. Both within legal positivism and the scientific positivism, the role of law as a communication tool is essential. The concept of legal communication should be considered as the idea of understanding the legal norm by the recipients of law, namely by persons and also acceptance of these rules in order to respect them. Also, clarity and transparency in law communication are very important elements that contribute to the way in which legal standards are received. The analysis of legal communication from the perspective of legal positivism presents a special scientific interest, given the very essence of positivism, namely that the laws are commands of the human being. Thus, it is important to analyze communication patterns that can be applied in the positivist orientation to consistently appreciate the ways in which legal communication can be improved.
Keywords: legal positivism, scientific positivism, communication patterns, legal communication
JEL Classification: K10, K30

Article 10 - La prise en compte du statut d'époux par le droit des affaires de l'Organisation pour l'Harmonisation en Afrique du Droit des Affaires (OHADA)


Taking into account the status of spouses by business law of the Organization for the Harmonization of African Business Law (OHADA) is referring to general commercial law and company law. The OHADA legislator values the status of spouses devoting equality between spouses, through the possibility for them to be able to be involved in low risk companies; the recognition of the de facto company between them and the right granted to each power, under the same conditions, benefit from the commercial lease originally attached to privileges. The consideration that the OHADA law grants the quality of husband appears in heritage protection thereof, insofar as it puts it away in case of depletion bad deal made by one of them . This is why the prohibition for spouses to be involved in the unlimited risk firms and the requirement of a separate trade as a condition for the spouse of the trader can also acquire the same status. But the heritage protection system spouse taken from the OHADA business law is supplemented by certain mechanisms of civil law, including matrimonial property regimes, although not all have the same efficiency. Indeed, among the two groups of matrimonial property regimes are known as separation schemes and those of the community property, only the first effectively protect the couple's assets. This objective likely was not assigned to the second from the design. These look more forward the merger of most of the assets of the couple without the slightest idea of calculation.
Keywords: business law, OHADA, trading companies, status of married people.
JEL Classification: K11, K22, K36

Article 11 - Non-standard employment relationship and the gender dimension


Besides influences economic, political and social on the standard form of individual employment contract, which led to a more flexible regulatory framework in the field of labor relations, an important factor that marked trend evolving contract atypical employment is the number of women who entered the labor market in recent decades. Because most strongly feminized form of employment non-standard employment relationship part-time, this article captures the issues most important about the relationship work part-time and the gender factor, the impact of this form of employment on the size women's social and level of protection provided by labor law and social protection rules in light of states that have agreed to support and legitimize this form of employment. Also, the circumstances of the most important, determining the choice of women in terms of hiring part-time, rationales justifying the strong influence of gender in hiring part-time, along with the identification of negative consequences of the feminization of this atypical forms of work are important factors that are discussed in this article.
Keywords: employment, labor law, atypical workers, labor market, gender discrimination.
JEL Classification: K31

Article 12 - Le maître d’ouvrage et le contrat de sous-traitance dans les marchés publics de travaux au Cameroun


Any subcontracting in public procurement contracts is subject to the prior approval of the Contracting authority. This is a manifestation of excessive powers which holds the administration in public law contracts. Therefore, the public contract is liable to termination as soon as the Contracting authority finds by any means whatsoever subcontracting occult on the work site. However, as soon as subcontracting is allowed, the Contracting authority appears foreign to its implementation, leaving the parties freely fulfill their contractual obligations. The situation of the contractor who is generally a small business or PMI is abandoned to the will of the contracting party of the public person, usually powerful multinationals. The Contracting authority displays a certain neutrality in both the quality of work performed by the contractor in terms of payment of the latter. Contractual freedom seems to have taken precedence here on the powers of control and direction of which is coated the Contracting authority in the execution of public contract, to the detriment of the subcontractor. A reform of the Government Procurement Code and subsequent legislation is needed to better protect the interests of the subcontractor. This article is striving to clarify the relationship Contracting authority-Contractor-subcontractor in works contracts. It demonstrates that the subcontractor weaker party to the contract must be better protected so as to safeguard the contractual solidarism which seems to be based the existence of the outsourcing contract.
Keywords: public procurement, Contracting authority, contractor, subcontractor, contractual solidarism.
JEL Classification: K12, K23

Article 13 - Issues legal and economic regarding amendments of the individual employment contract because the individual performance targets are not achieved by the employee


Adapting a gainful economic or technological developments may require modification of the individual employment contract under which the activity is performed, taking into account the intrinsic dynamism of employment.
Keywords: liberal professions, European Commission, The normative of the UE, business environment, potential
JEL Classification: K20, K33

Article 14 - South Africa’s transformative Constitution: from civil and political rights doctrines to socio-economic rights promises


This article discusses the post 1994 rights-based approach to transformation. Civil and political rights and socio-economic rights are conceived as central tenets to South Africa’s transformative Constitution, 1996. The Constitution was fundamentally tasked with transforming society to bring about substantive social and legal justice, peace, political stability and reconciliation among South Africans. This culminated in a new legal culture, elevating hopes that socio-economic problems largely inherited from the past would be altered. Thus, this article examines the extent to which norms and the law in the Constitution normalizes people’s socio-economic conditions. It utilizes notable entrenchment and eventual justiciability of socio-economic rights as noticeable attempt to proffer a panacea to prevailing socio-economic instabilities. It has been observed that first and second generation rights are interrelated and mutually supportive towards the course of transformation. However, it is asserted that the commended normative framework is struggling to ward off the country’s social and economic problems owing to persistent poverty problem. Thus, real transformation will remain an elusive dream if poverty is not eliminated.
Keywords: constitutional transformation, human rights, poverty, socio-economic rights.
JEL Classification: K10

Article 15 - Applicable sanction regarding the breach of the separation of powers principle within the companies' governance


Companies participate at the civil circuit by concluding legal documents. According to the principle regarding the separation of powers in the company's governance, a distinction must be made between the duties of the company's shareholders general assembly and the duties of the administrator. Thus, shareholders general assembly holds the deliberative power of the company and determines the working strategy of the company, whereas the administrator expresses, executes the will of the shareholders general assembly and concludes legal documents in the name and on the behalf of the company. Such legal documents are considered the documents of the company itself. From the perspective of the two management bodies, we can ask ourselves what is the applicable sanction when the shareholders general assembly decides to nominate a third person to represent the company for the signing of a legal document? From a certain point of view this represents an extension of the legal powers, throughout the legal documents of the company's bodies (including the shareholders general assembly's resolutions) and a breach of the exclusive duties of the administrative bodies of a company. The applicable sanction regarding such legal documents is non-existence of legal acts.
Keywords: companies' governance, trade law, shareholders, the separation of powers principle.
JEL Classification: K22

Article 16 - Les pouvoirs d’office du juge des procédures collectives de l'Organisation pour l'Harmonisation en Afrique du Droit des Affaires (OHADA) et les principes cardinaux du procès


The law of collective proceedings for clearing off depts which replaces the former bankruptcy law pursues an economic objective the reason why it carries certain exceptions to the common procedure law. As such, the judge of collective proceedings has powers of initiative in the institution and conduct of the trial. He can thus of his own initiative open the collective proceeding. The aim of this study is to confront the judge's office powers with the cardinal principles of the trial. The expected result should help verify the compatibility of those powers with the requirements of a fair trial. A hypothesis emerges that automatically powers that deviate somewhat to the cardinal principles of the trial, are justified by the aim of safeguarding collective interests pursued by the insolvency judge.
Keywords: collective proceedings; Self-referral; fair trial; right to an impartial court, the rights of defense
JEL Classification: K22, K33, K41

Article 17 - Are the rules of European Union public policy a reality?


Over the years there have been a lot of debates at academic and doctrinal level regarding the EU rules of public policy. Are these rules to be found in the Treaties or in secondary legislation? Which EU legal rules shall be considered as being rules of public policy? Which EU values are they protecting? These are some of the questions that the present study tries to answer starting with the definition of EU public policy rules and analyzing then its content and its role within EU legal system.
Keywords: European Union, administrative law, public policy, EU law
JEL Classification: K23, K33

Article 18 - The evolution of the right of association from constitutional standpoint in Romania


Starting from the principle that the history, on the whole, it is an analysis of the past in order to understand the present and to guide future behaviour, we intend to demonstrate that the historic landmarks on the evolution of constitutional regulations concerning rights and fundamental freedoms and the right of association are particularly important for consistency of the contemporary debates on issues of constitutional reform. In this context, we have been concerned about presenting an analysis from historical perspective on the evolution of the regulations, taking into account the main moments in the evolution of Romanian constitutionalism. This analysis is the result of a research method based on the historical and documentary analysis, where we have taken into consideration on one hand the evolutionary analysis of the issue from its earliest manifestation forms on the Romanian territory until present day, and, on the other hand, the analysis, through checking and comparing identified data and the documents that were issued during the reference periods linked to it. Also, analysing bibliographic sources has provided a fundamental ideological support for our scientific approach.
Keywords: Constitution, constitutionalism, fundamental rights and freedoms, the right of association
JEL Classification: K10

Article 19 - The State and the separation of powers


The State is a complex concept that can be addressed from a legal, political, social and economic perspective. The paper explores the meanings of the concept of State, State elements and stresses that the State power is one and indivisible and it is exercised through three functions and not to separate powers, namely the legislative function, executive function and the judicial function. The State institutions through which the three functions are controlled each other and collaborate to achieve the needs of society, which is likely to prevent abuses against citizens.
Keywords: State, State power, public functions, separation of powers.
JEL Classification: K10, K33

Article 20 - Implied terms in English and Romanian law


This study analyses the matter of implied terms from the point of view of both English and Romanian law. First, the introductory section provides a brief overview of implied terms, by defining this class of contractual clauses and by providing their general features. Second, the English law position is analysed, where it is generally recognised that a term may be implied in one of three manners, which are described in turn. An emphasis is made on the Privy Council’s decision in Attorney General of Belize v Belize Telecom Ltd and its impact. Third, the Romanian law position is described, the starting point of the discussion being represented by the provisions of Article 1272 of the 2009 Civil Code. Fourth, the study ends by mentioning some points of comparison between the two legal systems in what concerns the approach towards implied terms.
Keywords: implied terms, civil law, common law, principles of contract interpretation
JEL Classification: K12, K22

Article 21 - The late payment under the EU legislation


According to Article 14 EC, the European Union shall guarantee the free movement of goods and services. In this regard, it is necessary that the entrepreneurs should be able to do their business throughout the internal market and to recover their receivables in due time. Therefore, that late payment represents an obstacle to the proper functioning of the internal market. The Directive on combating late payment in commercial transactions, Directive 2000/35/EC is placed in the context of maintaining and developing an area of freedom, security and justice. This Directive governs all commercial transactions irrespective of whether they are carried out between private or public entrepreneurs or between entrepreneurs and public authorities, having regard to the fact that the latter handle a considerable volume of payments to business. It should therefore also regulate all commercial transactions between main contractors and their suppliers and subcontractors. This paper explores the legal framework on late payment of trade credit from the European legislation perspective.
Keywords: late payment, retention of title clauses, overdue debts, commercial transactions, enforceable title.
JEL Classification: K12, K33


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