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Societatea de Științe Juridice și Administrative



ISSN: 2247-7195
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Volum 9, Numarul 1, Martie 2019

Cuprins



Articol 1 - Scope and limits of the administrative act arbitrability

Rezumat

The material scope of arbitration in administrative matters has recently been considerably enlarged, especially in regards to the administrative act. It was recognized that the Arbitral Tribunal has the power to appreciate the legality of an administrative act. Traditionally, the legality of administrative acts was reserved for state courts. However, the legal incongruity was notorious. Article 180 (1) (c) of the Code of Procedure of the Administrative Courts (CPTA), 2002, provided that arbitral tribunals could enounce "matters relating to administrative acts that could be revoked without grounds for invalidity". We could diagnose two types of legal failures. First, within Administrative Law, it was incomprehensibly admissible to arbitrate the legality of administrative acts pertaining to the contractual sphere and exclude all others from the control of arbitration law. The other flaw suffered by the regime of arbitrability of administrative acts related to the possibility of arbitrability of tax acts3 and the imposition of strong limitations on the control of the legality of administrative acts in Administrative Law. The revision of the CPTA in 2015 implied a change in the legislative paradigm in the matter of administrative arbitration, providing for the possibility by the arbitral tribunals of assessing the legality of the administrative act, thus putting an end to a doctrinal dispute about the admissibility of the same. However, a literal interpretation of the precept would lead us to subsume within the jurisdiction of the arbitral tribunals the assessment of the legality of any administrative act. Considering the legislative scope of the legal prediction enunciated, the present work will have as its objective to answer three key questions. The first is to assess to what extent the arbitral tribunals may rule on the merit and legality of the administrative act. The second is to determine whether all administrative acts are arbitrable. The third concerns the search for a criterion of arbitrability of the administrative act, especially in matters related to legality.
Key-words: administrative act; arbitral tribunals; arbitrability; administrative law..
JEL Classification: K23, K41



Articol 2 - Director's duty not to consciously determine the company to break the law – reality or controversy?

Rezumat

Party autonomy prevails in determining the law applicable to the procedure and to the merits in international commercial arbitration. Nevertheless, when parties fail to make a choice or fail to reach an agreement, the arbitral tribunal has the authority to determine the applicable law. The paper’s aim is to present the legal grounds for this authority, its extent and limits, and how it works in practice. In order to reach this, aim the paper starts with a general analysis of the said legal grounds (the parties’ agreement, international instruments, arbitration rules, national laws on arbitration), then continues with an analysis of the limits imposed on the arbitral tribunal’s authority, which is large but not unlimited, and in the end looks at how this authority is exercised in practice, by scrutinizing recent jurisprudence and boiling down patterns and trends. The study will contribute to a better understanding of the current practice and trends in international commercial arbitration as regards arbitral tribunal’s authority to determine the law applicable to the procedure and the merits of a dispute..
Key-words: applicable law, international commercial arbitration, authority of the arbitral tribunal, party autonomy.

JEL Classification: K33, K41



Articol 3 - Cooperation between member states and Europol

Rezumat

Within this study, we have examined the way in which the Europol national units were regulated in the European normative act and the regulation of the two forms of judicial assistance in criminal matters, namely joint investigation teams and liaison officers. The research also included the way in which the Romanian legislator transposed into its internal law the provisions of the European legislative act. Another subject of the research was the formulation of critical views and de lege ferenda proposals, both for the European and for the Romanian law. The novelty elements that are promoted through this study aim both at examining the European legal instrument, the way it is transposed into the Romanian law, as well as the critical opinions and de lege ferenda proposals, proposing to contribute to the improvement of the European and Romanian normative system in this domain. The present study should be viewed as a follow-up to the one previously published, completing the examination of this European institution with a key role in preventing and combating transnational crime at European level. The work may be useful for students and master students of law faculties, practitioners in the field, as well as the European and Romanian legislators in terms of amending and completing the current legislative system.
Key-words: joint investigation teams; liaison officers; Europol national units; European Union.
JEL Classification: K14; K33



Articol 4 - National cultural heritage built: legislative risks and administrative deficiencies

Rezumat

Cultural heritage is one of the most valuable values of past, present or future generations. Faced with the dangers it faces, we have the moral and spiritual duty to react promptly, within our limits of competence. The present study is an expression of this task, with the proposed analysis aiming at raising awareness of the danger of a recently initiated legislative intervention by means of which the means of protection of the cultural heritage built would be seriously impaired. This danger is overlapped with the one caused by the lack of reaction and even the implicit support of this initiative by the public administration, which according to the institutional framework in this field has the duty to act as a true guardian of the national cultural heritage.
Key-words: built cultural heritage, national identity, centenary, public administration, legislative initiative.
JEL Classification: K23



Articol 5 - Types of international arbitral awards and their effects, focusing on two case studies: arbitral award on case "La Petrolifera Italo-Rumena" vs Republic of Albania (2007) and arbitral award on case "DIA Ltd. vs OSHEE sh.a" (2015)

Rezumat

An international arbitral award must be final, so that it may be subject of a request for a judicial recognition and enforcement in a particular state. The New York Convention instruments apply only to the final arbitral award, regardless of the different way it reflects the dispute in question. A final award is also considered to be one which does not directly resolve the dispute, but suffices to declare that the dispute would be settled by the parties themselves through a negotiating agreement. An arbitral award called a "partial award", which deals an interim measure, generally is not considered to be an arbitral award enforceable forcefully through the Convention's framework. However, in some jurisdictions, a partial award can be enforced in accordance with the local arbitration law, if the award disposes ultimately on a particular and independent issue. Parties in an arbitral process can reach a settlement agreement before the arbitrators make an award. This arbitral award may incorporate the agreement reached by the parties, accordingly being considered as a "settlement award" or it can only declare that the parties have a settlement agreement which have legal effects on them. In the case when the settlement agreement is converted into an arbitral award, the execution of the rights and obligations agreed by the parties materialized in the disposition of an arbitral award will be more effective through the New York Convention mechanism. This article, through literature review, regulatory frameworks interpretation, as well as the analysis of case studies, aims at identifying aspects related to the decision-making process of arbitrators. The manner in which the arbitral Tribunal disposes of important moments of arbitral procedure and for the final settlement of the dispute constitute very important procedural aspects of the international arbitral procedure.
Key-words: international arbitral procedure; international arbitral awards; UNCITRAL Rules; New York Convention.
JEL Classification: K33, K41



Articol 6 - On call (zero-hour) contractual arrangements: a new form of employment. Elements of compared law

Rezumat

Considering the evolution of atypical employment forms and their diversity, the elements of novelty brought about by atypical employment forms lie not only in their proliferation at an extremely fast pace, in most EU member states, but also in the fact that the non-standard employment forms known so far have been joined by very many new versions and subcategories, which allows a sub-categorization of these forms as atypical and very atypical. Currently, these new types of employment are no longer marginally used on the European labor markets, as their number has increased very strongly, the trend becoming a true phenomenon. As an exhaustive presentation of these works arrangements is beyond the scope of the present paper, we shall hereby address mainly the on call employment contract, in order to highlight its benefits for the labor market, as well as the major negative implications of implementing it. This is a relevant pursuit, since the Romanian labor legislation has not yet issued any stipulations to regulate this new type of work arrangement.
Key-words: on call contract; atypical work; new forms of work; flexible work.
JEL Classification:
K31



Articol 7 - Some specific aspects concerning the company by shares

Rezumat

The company by shares is the prototype of company of capitals, since this legal form of company is set up and functions only based on the contributions made by the associates, who are liable for the social obligations within the limits of these contributions, so that the person of the associates or the trust between them is irrelevant. In exchange for the contributions they make within the company, the shareholders receive negotiable instruments, which can be transmitted freely. From this perspective, the company by shares was conceived as a form of organizing large-scale activities that require and concentrate important funds, made available to the company by a large number of shareholders. These significant aspects, which have influenced the legal regulation applicable to it, characterized by excessive formalism, complicated and strict rules, with countless conditions imposed by the law in order to protect both third parties and minority shareholders, lead to the conclusion that this legal form of company is not appropriate for small activities with a reduced number of associates, because the advantages of choosing this form of company are not justified, as compared to the disadvantages it implies. Within this context, we consider that an analysis of this form of company, even though is not intended as exhaustive, but highlights particular significant aspects that underline its juridical specificity, may appear important and particularly useful, both for analysts in law and practitioners.
Key-words: company by shares, specific aspects, companies of capitals, limited liability, General Meeting of Shareholders.
JEL Classification: K22



Articol 8 - (R)evolution of the insolvency law in a globalized economy

Rezumat

This study aims at highlighting the image of insolvency law as it was outlined, ascendingly developed and reached the remodelling stage in an international economic context, in a globalization era where the approach of interdisciplinarity and transdisciplinarity is no longer only mere philosophical theory, but is manifested instead through the interference and inter-connexion between fields of law and dimensions of political, economic and social factors, the need to identify a coagulating factor through the so-called harmonization of the norms of law, of the jurisdiction and of the international, EU and regional practices, as well as a reporting of the best practices in the field becoming key factors in the qualitative management of insolvency risks, an institution which is individualized, at the same time, in a new field of law, an autonomous law that has gone beyond the borders of commercial law and has also expanded over individuals and territorial and administrative units, law present in interference with the monist system implemented by the new Civil Code but also driven, in its evolution, by principles promoted at European Union level, and also at international level.
Key-words: insolvency, globalization, reorganization, interdisciplinarity, comparative law, international economic order, international trade.
JEL Classification: K22, K33, K35



Articol 9 - Investor protection and stock market development. Empirical approach on the European Union case

Rezumat

A fundamental objective of stock market regulation is investor protection, which influences the stability and the degree of development of capital markets. We use eleven years (2006-2016) of panel data from the World Bank, on the evolution of minority shareholders' protection. This paper aims at understanding the connection between regulation and the development of capital markets, both for developed and emerging European Union countries. The results are consistent with some of the results from empirical research in law, demonstrating a positive link between investor protection and stock market development during the analyzed period, after controlling for other drivers of stock market development, such as GDP growth and level of taxation. The results outline the importance of stock market regulation, making clear that minority shareholder regulation and its enforcement should be further improved in the European Union member states.
Key-words: minority shareholder protection; regulation; stock market development; European Union; GMM system
JEL Classification: K20, K22, K42


 

Articol 10 - A brief survey on law and economics of contract law

Rezumat

Right to own property and freedom of contract are two fundamental rights for the good of society. That’s to say – together with property law – contract law is vital for a good functioning economy. Thus, contract is a solid instrument to increase social welfare. Accordingly, a brief description of economic analysis of contract law will be carried out in this essay. As such, the author of the essay attempts to find appropriate answers to certain major questions including the following: Why are contracts good from a societal point of view? What types of risks can arise in a contract? What is a fully specified contract and how will risks be allocated in a fully specified contract? Why is a particular risk allocation in contracts important for both society and contracting parties? What are the consequences of transaction costs for contract law? What is the economic purpose of codification of default rules?
Key-words: law and economics of contract law, fully specified contract, risk allocation, default rules.
JEL Classification: K12



Articol 11 - Criminalizing fraud affecting the European Union's financial interests by diminution of VAT resources

Rezumat

This article aims to analyze the evolution of the EU Member States' obligation to criminalize fraud affecting the European Union's financial interests by diminution of VAT resources as a result of the competence recognized for the European Union in criminal matters, as well as to determine the extent to which the Romanian criminal law in the field corresponds to the provisions of the 1995 Convention on the protection of the European Communities' financial interests (“PFI Convention”) and those of the 2017 Directive on the fight against fraud to the Union's financial interests by means of criminal law (“PFI Directive”). For this purpose, the author searched the relevant national and ECJ jurisprudence and presented and compared the relevant legal provisions, which were commented and interpreted according to the rules of law (grammatical, historical, logicalsystematic, teleological), taking into account the economic and political context in which they were adopted. The study establishes an obligation to criminalize VAT fraud for EU Member States under the Convention and the Directive, as well as the conformity of the Romanian legislation with the European one in the field, with the consequence that the Romanian legislator should not modify the current regulation in transposing the Directive.
Key-words: harmonization of criminal law; European criminal law; VAT fraud; financial interests of the European Union.
JEL Classification: K14, K34



Articol 12 - Aspects that need to be clarified through criminal investigation in the case of crimes regarding traffic and illicit drug use

Rezumat

The knowledge and consumption of drugs are not issues emerged in the contemporary world, are recent phenomena that suddenly appeared and experienced an explosive development. Drug use appeared with the existence of mankind as a rational being. Although these substances still have a scientific attraction for scientists, they also claim a scheme of measures to combat their illicit traffic, measures that only reach their intended purpose to a small extent. At first, mankind as a rational being, has seen the properties and effects of drugs and toxic substances extracted from various plants and minerals. This knowledge came from his desire - which allowed the evolution of mankind - to know the surrounding world and, implicitly, himself.
Key-words: drug use, fighting drugs traffic, drug effects, illicit drug use.
JEL Classification: K14



Articol 13 - Discussions on new EU-wide regulations on the posting of workers. Special consideration for Directive (EU) 2018/957 amending Directive 96/71/EC on the posting of workers in the framework of the provision of services

Rezumat

Posting of workers in the framework of the provision of services within the European Union is governed by Directive 96/71/EC. Recently, this Directive has been amended by Directive (EU) 2018/957 which has improved the legal framework in the field of the rights of posted workers in the provision of services. This study includes an analysis of the main changes made by the amending directive, which will need to be incorporated into national law by 30 July 2020.
Key-words: posting, workers, European Union, directive, labor law.
JEL Classification: K31



Articol 14 - Obstructing justice according to the Romanian law. The preexistent elements and the constituent content

Rezumat

Within the present study we have examined the constitutive content and the preexisting elements of the crime of obstructing justice. We should specify that this offense was not provided in the previous Criminal Code, representing from this point of view a novelty element for the new Criminal Code. However, we pointed out that the offense with similar legal content, without a marginal name, was also provided in two other normative acts, namely Law no. 85/2006 on Insolvency Procedure and G.E.O. no. 46/2013 regarding the financial crisis and the insolvency of the administrative-territorial units. The novelty elements of this paper aim both at examining the constitutive content, the preexisting elements, as well as in the comparative examination of the provisions of the present incrimination and the one existing in the normative acts referred to above. Also, as a novelty, we also support the necessity of completing the provisions of the law by including in its content, as bodies with attributions in the field, the judge of the preliminary chamber and the judge of rights and freedoms, institutions that cannot be assimilated to the term of court. This paper is part of a broader work to be published early next year, continuing to investigate crimes in the light of the new law. The work may be useful to students of law faculties, master students, and law practitioners.
Key-words: offense; material element; essential requirements; subjective side.
JEL Classification: K14



Articol 15 - Comparative analysis between fiducia and other contracts in the Romanian Civil Code

Rezumat

The similarity of fiducia with other law institutions of the Civil Code2 can be made to a certain extent. However, fiducia remains a profoundly different contract than other contracts such as the administration of the assets of others, the mandate or the mortgage and a thorough comparative analysis is necessary. Thus, the use of fiducia for certain operations and under certain conditions is perfectly justified. The comparison between fiducia and mandate bears many similarities, however a great difference is that in the case of the mandate there is no transfer of ownership. Also, fiducia can be confused with the administration of the assets of others, from which it also borrows some attributes in the matter of the fiduciary's remuneration. However, in this case, the differences are of substance. There are also many similarities to guarantee agreements as both types of contracts are accessories to a main contract that they guarantee. It is also worth mentioning that the introduction of fiduciary operations into the Civil Code is not only a complement to the already existing contract framework with another similar contract, but a real evolution towards the opening of Romanian civil law to a completely different category of advanced contracts that allow sophisticated business operations.
Key-words: fiducia, fiduciary, fiduciary contract, asset management, mandate, mortgage.
JEL Classification: K12, K15, K22



Articol 16 - Scope of the simplified procedure regulated by Law no. 151/2015 concerning the insolvency of natural persons in Romania

Rezumat

The paper deals strictly with one of the three procedures established by Law no. 151/2015 on the insolvency of natural persons, namely the simplified insolvency procedure, meaning its field of application. This field of application has been identified by correlating Article 3 (12) of the law defining insolvency, with Article 4, which refers to the general scope of Law 151/2015 and Article 65, which refers to the scope of the simplified insolvency procedure. The conclusion is that this regulation is useful for bona fide borrowers who are in difficult situations in their lives.).
Key-words: insolvency, simplified procedure, obligations, debtor, good faith (bona fide), insolvency committee
JEL Classification: K35



Articol 17 - Administrative arbitration in public procurement: a look at Portuguese law

Rezumat

The use of voluntary arbitration to resolve disputes emerging from public procurement is a long-standing reality in Portugal. The Portuguese law allows this way of settling disputes, with limitations, which have been overcome. Traditionally the resolution of this type of litigation resorted to ad hoc arbitration, in accordance with the rules of the Voluntary Arbitration Act, characterized by the free choice of arbitrators, by the lack of publicity and transparency of their decisions. Since 2009, in Portugal, institutionalized administrative arbitration has been increased, creating for the purpose arbitration centers with rules of greater transparency and publicity of its decisions. The recent revision of the legal regime for public procurement in Portugal, for transposition of European Directives N º s 2014/23/EU, 2014/24/EU, 2014/25/EU and 2014/55/EU, introduced, in article 476 (2), a rather innovative regime in this area. This article aims to reflect on the solution now introduced in the public procurement, its sense, scope and repercussion in the future evolution of this dispute settlement in conflict with the principles of judicial organization enshrined in Constitution of the Portuguese Republic.
Key-words: administrative arbitration, institutionalized arbitration, public procurement, administrative law.
JEL Classification: K23, K41



Articol 18 - Enterprises (companies) and their associations – subjects of anticompetitive practices

Rezumat

The competition rules applicable to enterprises (companies) are the most important rules of European Union competition law. They have a direct effect and are primarily applicable to companies. Prohibition of agreements restricting competition, abusive exploitation of dominant positions, control of concentrations and state aid are the pillars of European Union competition law.
Key-words: competition, enterprises, asociations of enterprises, agreements.
JEL Classification: K21, K33


Articol 19 - The delay of paying the leasing rates in the current Romanian regulation. Project adopted in 2018. Analysis of comparative law

Rezumat

This paper aims to demonstrate why the solution voted by the Romanian Senate regarding the limitation of the users responsibility in the leasing contract, by modifying the Government Ordinance no. 51/1997 concerning the leasing operations and the leasing societies, in March 2018, is not grounded enough legally, and why we do not recommended to be adopted, even if, de plano, we agree with the increased protection of the user. In this argumentation we use comparative law.
Key-words: leasing, non-payment of the leasing rates, damages-interests owed by the user/tenant, delay of paying
JEL Classification: K22


Articol 20 - The institute of acquiring the right of ownership by acquisitive prescription under Kosovo’s law

Rezumat

A special and very important place in Kosovo’s Property Law system occupies the legal norms pertaining to the Acquisition of Immovable Property by Acquisitive Prescription (Usucapio). Exactly this paper is about this subject, very interesting and debating among jurists. The purpose of this paper it is for the reader to acquire solid knowledge regarding the Acquisition of Ownership on Immovable Property by Acquisitive Prescription under the Law of Kosovo. Especially, in an analitical way we will discuss about the Acquisition of Ownership on Immovable Property by ‘Usucapio’ (Praescriptio). During this brief and substantive analysis we have been served with relevant legal texts, especially with Law no.03/L-154 on Property and Other Real Rights of the Republic of Kosovo and in a comparative historical view with Law no.6/80 on Basic Property Relations of the Former Socialist Federal Republic of Yugoslavia.
Key-words: property law, acquisitive prescription, immovable property, property relations, law on property, real rights.
JEL Classification: K11, K15, K25


Articol 21 - Aspects related on the issue of special free estate in relation to the provisions of the Romanian Civil Code

Rezumat

In our study, we will analyze a special issue of Civil Law, a problem of whom application may generate controversies as a result of how it is solved by current legal provisions. This is the special free estate of the living spouse, established by the art. 1090 Civil Code. Thus, the legislator forbids the donations whereby the forced estate of the forced heirs (Article 1086-1088 of the Civil Code) is breached, and limits the right of disposal of the patrimony holder, as a rule, to the ordinary free estate. Instead, when the living spouse is gratified at the expense of the deceased's descendants who are "not common", that is, they are not the survivors of the deceased and of the living spouse, the legislator sets a special limit of the right to dispose, established by the art. 1090 Civil Code. In the elaboration of the study we will interpret logically and systematically the provisions of the Civil Code that have an impact on the subject to analysis, trying to provide solutions to different factual situations that would be subject to the provisions in question.
Key-words: donation, living spouse, descendants, forced estate, special free estate.
JEL Classification: K11, K15


Articol 22 - Leon Petrażycki and a pluralism of the sources of law

Rezumat

The article pertains to the issue of decentralisation (and democratisation) of sources of law and reconstruction of the concept of sources of law. Models of thinking or categories adopted in jurisprudence oftentimes constitute a manifestation of a repression that is stronger than the classic legal sanction. This is because they necessitate flattening of the social reality image, which tends to be richer than the corresponding law. The aim of this article is to indicate that the scarcity of law stems solely from thinking habits and solutions adopted unquestionably by jurisprudence. This is also the case for the concept of sources of law. The positivist idea that law is created and imposed on citizens by the centre in power (the state, the court) remains relevant, even if there are more than just one centre. At the same time, the concept of sources of law, defended by jurisprudence, excludes any actual displays of pluralism, thus preventing bottom-up law-making processes (perhaps except for soft law of unclear legal status) and recognising their role in the legal system or the legal order of a given state. Pluralism of sources of law is one of the elements of theory of law formulated by Leon Petrażycki. If we assume that the standard positivist model of sources of law is the currently binding one, Petrażycki's concept provides an alternative that allows us to indeed recognise and include into the notion of law all these rules that are in fact something more than morality, habit or custom in view of addressees, while maintaining the integrity and efficiency of law and traditional ways of understanding law in countries of the Enlightenment tradition.
Key-words: of Law; Petrażycki; theory of law; age of pluralism; integration.
JEL Classification: K10, K38


Articol 23 - European Grouping of Territorial Cooperation – a legal form supporting cross-border cooperation in the European Union

Rezumat

European Grouping of Territorial Cooperation (EGTC) is European legal form that can be established under the Regulation (EC) No. 1082/2006 on a European Grouping of Territorial Cooperation. This measure is a part of the European Union’s Cohesion Policy, which aims to gradually reduce regional disparities and promote economic, social and territorial cohesion. EGTC supports and facilitates the formalized cross-border cooperation between Member States of the European Union, as well as their regional and local public authorities. Cross-border cooperation, which is a part of the Cohesion Policy, focuses mainly on border regions, whose weakness is their periphery location. In connection with the creation of the EGTCs, Member States may adopt measures to support this legal form by their national legislation and practice. The aim of the article is to present EGTC in terms of the European material and formal sources of law that have prompted the emergence of this legal form and govern the conditions for its establishment. EGTCs have the predisposition to carry out various activities related to cross-border cooperation. The European legal framework allows the use of EGTCs as entities for implementation of cross-border public procurement.
Key-words: European Grouping of Territorial Cooperation, legal form, crossborder cooperation, European integration.
JEL Classification: K19, K23, K39


 

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