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Volume 11, Special Issue, October 2021

Contents



Article 1 - Hesitantly towards mutual recognition of “vaccination passports”. A survey on potential ubiquity in administrative law

Abstract

The problem of potential ubiquity emerged in administrative law because of transboundary circulation of various certificates, licences and permits. These documents, approving certain facts, may appear before an administrative authority of another State. Thus, the applicable regime of public law must qualify the legal consequences of such documents in the realm of the applicable administrative law. This article aims to discuss this problem with regard to the challenges arising in the second year of the COVID-19 pandemics. Prospective introduction of “immunity certificates” and “vaccination passports” in various jurisdictions and the need to establish mutual recognition of such “passports” and “certificates” is the subject of attention. The article points out existence of several dogmatic approaches to the fact that foreign administrations have either approved a fact, or granted a right. Some of these dogmatic approaches have been reflected in the written law. However, at the same time, in theory, other solutions than those provided by the current legal framework would also be theoretically possible. The importance of these theoretical considerations is demonstrated regarding the very current discussions on the introduction of “immunity certificates” and “vaccination passports”.
Key-words: potential ubiquity; international administrative law; unilateral recognition; mutual recognition; immunity certificates; vaccination passport; COVID-19 pandemics.

JEL Classification: K10, K22, M21
DOI: 10.24818/TBJ/2021/11/SP/01



Article 2 - The moratorium on loan repayments during the Covid-19 Pandemic in Europe: a comparative analysis of loan moratoria in selected European countries

Abstract

This paper examines the moratorium on loan repayments, which was intended to relieve debtors in a difficult situation during the COVID-19 pandemic. In this study, various aspects of such moratoria are critically discussed and compared from an international perspective. Some debtors were significantly hit hard by the pandemic, whereas others were no. But should the moratoria apply to all of them? The free-rider problem, or even harm to some clients, are among the unintended results of the moratorium. Moreover, the loan repayment moratorium has different effects on the traditional banking sector and on P2P lending platforms. Such differences were not discussed sufficiently before adopting the moratoria. The different effects might have a negative impact on some debtors, on some creditors, or on the market and society in general. Along with using some traditional legal research methods, this paper takes a comparative perspective on loan repayment moratoria in different EU countries among. The conclusions of the paper may help regulators and lawmakers prepare more balanced regulations of loan repayments in the next crisis. Future regulations should reflect the perspectives of both debtors and creditors.
Key-words: Loan repayment, loan repayment moratorium, moratorium, banking, P2P lending, banking law, COVID-19.

JEL Classification: E44, G21, G28, K22, K23
DOI: 10.24818/TBJ/2021/11/SP/02



Article 3 - Нuman right to virtual reality in the healthcare: legal issues and enforcement problems

Abstract

A key feature of modern legal relations in the healthcare sector is the widespread use of digital technologies. This study describes certain aspects of the legal regulation of the human right to virtual reality in the healthcare sector and the problems of law enforcement. The methodology of this work is based on an interdisciplinary approach using comparative legal, dialectical and systemic methods. The main objective of this article is to determine the forms and directions of the use of virtual reality in health care in the context of human rights. It is emphasized that the introduction of smart technologies, virtual reality in the healthcare sector is the main modern trend in the development of healthcare in order to improve the provision of healthcare services. The human right to use virtual reality in healthcare is to ensure the actions of virtual reality users within the framework of virtual information relations in the healthcare sector, which are governed by the relevant legal norms. The human right to use virtual reality in healthcare is a fourth generation of human rights. These rights include all rights that have arisen as a result of scientific progress, the development of morality, namely "somatic rights", as well as information rights. The use of virtual reality in the healthcare sector is possible in the following areas, namely: (1) medical training, (2) surgical modeling, (3) rehabilitation, (4) psychotherapy and psychology, (5) ophthalmology, (6) telemedicine, etc. It is stated that user safety, privacy, freedom of expression, ethics and copyright protection in the use of virtual reality in healthcare require legislative regulation, taking into account the European experience. The virtual space in the healthcare sector provides opportunities for the realization of human rights and freedoms regarding the preservation of their health, but can be used to carry out actions that contradict the norms of law and have illegal behavior. The latter requires an improvement in the regulatory framework when using the virtual space of the healthcare sector to protect the interests of the individual, society and the state using international standards.
Key-words: human rights, health sector, virtual reality, legal regulation.
JEL Classification: K14, K24.
DOI: 10.24818/TBJ/2021/11/SP/03



Article 4 - How the dignity was understood in law in past and how it should be today

Abstract

In the current legal discourse, the concept of dignity is becoming more common. It is considered the highest axiom, which every violation deserves to be condemned. However, we forget about the conceptual basis of a given concept, its history and original overtones. We do not remember that certain concepts are created solely to systematize the created or existing social and political situations. The purpose of the article is to attempt to answer the question of how to understand the concept of dignity in legal discourse. It is worth bearing in mind that dignity is indicated as "this" (value or maybe something else) from which human rights originate. That is why it should be rejected as a value because the value itself is not a value. However, one must opt for an objective understanding of dignity, rejecting its moral background proposed, among others by the doctrine of the Catholic Church, if we want to treat it as a legal category.
Key-words: dignity, value, legal category, law.
JEL Classification: K10.
DOI: 10.24818/TBJ/2021/11/SP/04



Article 5 - Transnational law – a new system of law?

Abstract

The paper presents the emergence and evolution of the concept of transnational law, from the Philip Jessup’s 1956 novation to the latest approaches, mainly from the western legal scholarship. In the legal writings from Romania or Republic of Moldova, the phenomenon of transnational law remains unexplored or, at best, mentioned incidental as a synonym of a modern “lex mercatoria”. Likewise, in Russian scholarship, research on transnational law bears a strong private imprint and ubiquitous reluctance may be noted. This article aims to discuss, from the perspective of legal pluralism, the loss of the state monopoly in law making, the pluralization of sources of legitimacy for transnational actors, and the reconsideration of the scope of the law, by de-territorializing it. Transnational law is seen thus not just a private regime, but as a system of normative law that transcends international or national law, acts in a distinct social space and addresses specific actors, not only private, but also public or hybrid. In Romanian legal knowledge this approach is missing.
Key-words: transnational law, transnational governance, legal pluralism, transnational legal pluralism, lex mercatoria.
JEL Classification:
K33.
DOI: 10.24818/TBJ/2021/11/SP/05



Article 6 - Venice Commission: the role in the process of international and national law interpretation

Abstract

The article aims to study the Venice Commission's role as one of the leading international law interpreters. This role has gradually strengthened in the process of scientifically substantiated promotion of legal norms and standards concerning democracy, human rights, and the rule of law. Using system-structural, formal-legal, comparative-legal, empirical, and anthropological methods, one has drawn essential conclusions regarding implementing the Venice Commission's interpretive activities. As a result, it has been proved that the nature of the Venice Commission's interpretive activity demonstrates the existence and growing contradiction between the prevailing interpretive practice at the supranational level and the provisions of the classical theory of law interpretation. Ukraine's ongoing dialogue with the Venice Commission is vital to develop and improve legislation, especially laws, implementing new constitutional provisions on justice, the drafts of which have already been designed or are being developed, as well as indubitable compliance with these laws. Venice Commission's general documents should be for the Ukrainian legislator the source to base the preparation of relevant legislation.
Key-words:Venice Commission, subject of interpretation, interpretive practice, international and national law, legal norms and standards.
JEL Classification: K33.
DOI: 10.24818/TBJ/2021/11/SP/06



Article 7 - Defense or cooperation between states and international investors in times of crisis?

Abstract

International investment is protected by international law by setting the standards of legal treatment that host state governments have committed themselves to in their investment treaties. Therefore, these standards of protection must be respected even in times of crisis, regardless of the reason that generated it, the policy of attracting and maintaining an investment climate favorable to international investment being an attribute of each state. If he does not find adequate protection or if he cannot negotiate contracts adapted to these conditions, nothing can prevent an investor from changing the direction of his business, in order to protect the investment made. On the other side of the barricade, the states raise the shields of force majeure and necessity. Of course, it is preferable for the barricade to turn into a round table of cooperation. The issue of violating one or more standards by states is one of the most debated at the moment, as international arbitration practice has decisions that oblige states to significant compensation. In my study I used as a research method the interdependent introspection, analysis and synthesis through analogies developed in a comparative method.
Key-words: crises, foreign investment, protection standards, necessity, force majeure.
JEL Classification: D25, F21, K23.
DOI: 10.24818/TBJ/2021/11/SP/07



Article 8 - Foreign law in higher courts practice. The key characteristics of Georgian private international law

Abstract

This paper aims to investigate the application of foreign law in higher courts practice. The process of determining a foreign law raises practical difficulties, as a judge must apply not just foreign law acts, but also the case law and interpretation with which it is applied in another State. In private international law process the effectiveness of the application of foreign law depends on how correctly and delicately can the higher courts review decisions made by the first instances. In some countries, higher courts have the power to control the correct application or non-application of foreign law by judges, but in some cases, such courts lack this ability. In spite of the development of comparative jurisprudence and modern information technologies, none of the countries’ judge can have a claim on exact knowing of relevant standards of the law of foreign countries. Consequently, the danger of making a mistake is more greater when it comes to interpreting and applying foreign law. Thus, it cannot be expected that the higher court should be able to review interpretation of foreign law acts applied by the lower courts and to provide that this interpretation is relevant to that which the practice of the foreign country would adopt on the same question. There is an opinion that the higher courts should refrain from control the wrong application of foreign law in order to guard their own authority, as there is a high risk of misinterpretation of a foreign rule. The different aspects of this problem will be examined in this article.
Key-words: private international law rules, treatment of foreign law, foreign substantive law, interpretation, misinterpretation, higher courts, lower courts, revision, cassation.
JEL Classification: K15, K39, K41.
DOI: 10.24818/TBJ/2021/11/SP/08

 

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