APPLICATION OF ANTI-DISCRIMINATION LAW IN THE FIELD OF LABOR AND EMPLOYMENT IN THE REPUBLIC OF SERBIA: THE ECONOMIC ANALYSIS OF LAW APPROACH
The aim of this paper is to analyze the problem of labor market discrimination through the methodology of economic analysis of law, as a special discipline, as well as the doctrinal approach, focusing on the legislative framework in the concrete filed in the Republic of Serbia. The main research question is do we really need anti-discrimination law in the field of labor and employment, or we can use only free market mechanisms to eliminate employers who discriminate employees who are in the labor market and/or the labor force which pretend to enter the market. Economic analysis of law starts from the premise that employers are rational players at the market who want to maximize their profits, and the only important thing is the productivity of employees, not their personal characteristics which do not affect their labor performance (productivity). Although this reasoning sounds rational, we witness that discrimination in the labor market has been persisting and governments intervene with anti-discrimination legislation and public policies, as well as special institutional solutions, trying to suppress it and support economic development and social inclusion of marginalized social groups. The author’s special attention in the paper is on the two economic models of discrimination, Becker’s Taste for Discrimination and Statistical Discrimination Model, which will explain the necessity of anti-discrimination law in the field of labor and employment. Concurrently, the focus will be on the Serbian legal framework and the importance of the impact assessment, as a tool for improving the quality of legislation and policies in the concept of the respect the principle of equality and non-discrimination.
Keywords: economic analysis of law, discrimination, labor market, impact assessment.
Within the geographical Europe, on supranational and international level, we come across two distinct, yet interconnected human rights protection regimes; the Council of Europe (hereinafter: CoE) and most importantly, the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: ECHR, Convention), and the European Union (hereinafter: EU) that safeguards fundamental rights through the provisions of the EU law and in conjunction with the case-law of the Court of Justice of the European Union (hereinafter: CJEU). While some member states co-exist within EU and CoE in parallel, others are being expelled from the CoE or exiting the EU on their own, questioning thus the membership status quo in times that appear to bring deterioration on the landscape of human rights. Starting off with essentially different mandates both organisations, i.e. the CoE and the EU have today more features that unite them, at least from the perspective of their human/fundamental rights work. As such, two fundamental rights catalogues, well-established procedural mechanisms and overarching principles stand out as signs of convergence within the two regimes. To analyse the interconnection between the two regimes is even more timely as the negotiation talks between the CoE and the EU resume, including suggestions to overcome issues previously contested by the CJEU of Justice of European Union in its infamous 2/13 Opinion on Accession of the European Union to the ECHR. The renewed efforts include potential solutions on co-respondent mechanism, joint responsibility, advisory opinion and other previously disputed issues, though the scepticism on the actual progress seems justified.
Keywords: European legal space, human rights, Convention for the Protection of Human Rights and Fundamental Freedoms, European Union, accession of European Union to the ECHR.
PROTECTION OF HUMAN RIGHTS AT THE INTERNATIONAL LEVEL: THE ROLE OF THE HUMAN RIGHTS COMMITTEE
The United Nations, as a guardian of peace and security in the world, from the moment of its inception, has been involved in promoting and protecting human rights. Although the Universal Declaration of Human Rights was adopted by the General Assembly in 1948, and the process of drafting the International Bill of Human Rights was completed by 1966, the international human rights treaty system has continued to strengthen with the adoption of new instruments and the establishment of UN treaty bodies which fulfill a unique function in the global human rights system. This paper stresses that observed from a historical perspective, the establishment of instruments and bodies whose main purpose was the protection of human rights brought numerous advantages in the international system of human rights protection, but at the same time has predicted various challenges when implementing protection on a practical level in certain areas that were of special interest to the international community. Taking into account the facts that the UN Human Rights Committee is an independent expert body that monitors the implementation of the International Covenant on Civil and Political Rigs by its States Parties, and that it is known for its impartial, credible, and comprehensive expert presentation of the content of the said Covenant, this paper will discuss the results of the activities of the Committee from the perspective of its functions and the legitimacy of its decisions, as well as of its effectiveness in ensuring the respect, protection, and promotion of human rights at the international level.
Keywords: human rights, promotion and protection of human rights, strengthening of the United Nations human rights treaty bodies, Human Rights Committee.
The right to human dignity is a cornerstone of modern constitutional structures. Accordingly, constitutions of the Western Balkans states (Albania, Bosnia and Herzegovina, Montenegro, North Macedonia, Serbia) unequivocally confirm the importance and gravity of human dignity in their respective legal systems. The paper wishes to analyse the normative and the judicial status of the right to human dignity in the Western Balkans. In its first part, the paper outlines national sets of laws pertinent to the right to human dignity. Along firm constitutional guarantees, the paper tries to exemplify provisions in separate legal frameworks addressing social and cultural diversity relative to the right to human dignity within the region. In the second part, the paper analyses cases of the European Court of Human Rights (ECtHR) corresponding to human dignity in applications filed against the Western Balkans states. Special attention is given to judgments in which ECtHR found that the respective Government’s appeal to the notion of dignity did not amount to its absolution in situations when violation of the Convention has been identified.
Keywords: human dignity, personal dignity, human rights, European Court of Human Rights, the Western Balkans.
This paper assesses the major issues in regard to previous Albanian Constitutions of 1921, 1976 and 1991. Moreover, it states the provisions of the current Constitution (1998 with amendments) for the recognition and protection of human rights. Some of the issues raised are the obstacles that Albanian institutions confront with both nationally and internationally in guaranteeing the protection of national minorities’ rights. Moreover, the purpose of this paper is to shed light on the adoption of the new legislation on minority rights on the basis of its role and duties under the Framework Convention for the Protection of National Minorities. The essence of democracy is the protection of fundamental freedoms and human rights, and ensuring that these freedoms and rights are fully protected makes a state substantially democratic.
Keywords: human rights, national minorities, Albanian Constitution, minority rights, democracy, legislation, laws, Convention.
COVID-19 VACCINE MANDATES, INTERNATIONAL HUMAN RIGHTS LAW AND THE VOLUNTARY CONSENT CRITERION
International human rights standards and bioethical norms with regard to informed consent for all medical interventions logically apply to COVID-19 vaccines. This invasive medical procedure carries both known and unknown risks. Over the past two years, COVID-19 vaccine mandates significantly infringed on the individual’s right to medical self-determination, violating Article 7 of the International Covenant on Civil and Political Rights, and Article 5 of the Oviedo Convention. The COVID-19 era practices to ostracize, spurn, pressure, mandate, pay, fraudulently induce, and shame people into getting vaccinated against their will violated key Bioethical standards and long-established International Human Rights Law norms jus cogens and obligations erga omnes. Voluntariness, like so many other notions, is not an over-simplified yes-or-no concept but a matter of degree and understanding all the relevant facts in casu. Coercion itself encompasses a broad range of permutations, from applying physical force at one end to applying subtle emotional pressure on the other. Any kind of pressure put on an individual impedes and therefore nullifies the voluntariness of his or her decision, irrespective of the degree. When Government and Corporate COVID-19 biomedical medical paternalists pressured citizens to take the COVID-19 vaccines through threats of punishment if they did not and promises of reward if they did, it failed voluntariness on all counts.
Keywords: COVID-19 vaccine mandates, Jus Cogens norms, informed consent, medical experimentation, non-derogable human rights.
The recognition and the implementation of human rights have generated that their fulfillment is in some cases at the cost of the budget. This article will analyze if public rights requested as human rights must be granted without conditions, or if, on the contrary, a mechanism must exist in order to prevent abuse concerning their enforceability and justiciability, taking for example the Mexican jurisdiction.
Keywords: human rights, enforceability, justiciability, interpretation, social justice.
This article analyses the two judgments of the Court of Justice of the European Union in the Gavanozov case, which deals with judicial protection against European Investigation Orders in Bulgaria. Questions for a preliminary ruling were referred twice to the Court of Justice of the European Union by the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria). In the second judgment of 11 November 2021 (Gavanozov II), the Court of Justice of the European Union ruled that European Investigation Orders cannot be issued by a Member State whose national legislation does not provide for any legal remedy against it. Against this background, the article examines the impact of these rulings on the level and scope of protection of human rights and fundamental freedoms in the European Union in the context of judicial cooperation in criminal matters between the Member States.
Keywords: European Investigation Order, Court of Justice of the European Union, preliminary rulings, judicial cooperation in criminal matters, legal remedy.
POTENTIAL OF THE EU DRAFT DIRECTIVE ON CORPORATE SUSTAINABILITY DUE DILIGENCE TO CONTRIBUTE TO A COHERENT FRAMEWORK OF CORPORATE ACCOUNTABILITY FOR HUMAN RIGHTS VIOLATIONS
Currently, the field of business and human rights is at a crossroads in terms of normative development, as two major legislative instruments are being negotiated at the regional and international levels. The first instrument is a proposal for a directive aimed at ensuring business responsibility for the respect of human rights and the environment within the European Union, or in other words a proposal for a Directive on Corporate Sustainability Due Diligence. The second one is a proposal of a legally binding instrument on transnational corporations and other business enterprises with respect to human rights, commonly referred to as the Third Revised Draft Treaty on Business and Human Rights, which is being developed by the open-ended intergovernmental working group established by the Human Rights Council in 2014. Given such parallel developments, it would seem prudent for the ongoing efforts to be interlinked so as to contribute to creating consistent legal solutions governing corporate accountability for human rights violations at international and supranational fora. This is particularly relevant in the context of rapid globalization, where transnational corporations can exploit legal and regulatory loopholes at the cost of human rights and the environment. This paper analyses the two legislative drafts with the aim of determining to what extent those two draft hard law instruments reflect the applicable international soft law standards and contribute to the creation of a complementary and mutually reinforcing regulatory framework. The analysis shows the differences in the scope and approaches utilized in the two instruments and identifies gaps and shortcomings in the proposed solutions from the standpoint of effective protection of the victims’ rights. The analysis shows that the two proposed legislative texts are for the most part mutually complementary and it points to the ways in which their norms can be read together so as to enable a coherent and consistent legal framework and ensure legal certainty. The authors also argue that the two legislators should utilize the drafting process to address the identified discrepancies in the existing normative framework in order to achieve the best results.
Keywords: corporate accountability for human rights violations; human rights due diligence; draft CSDDD; draft LBI; transnational corporations.
COMPARATIVE ANALYSIS OF THE LEGAL STATUS OF MINISTRIES OF DEFENCE STAFF IN SELECTED EUROPEAN COUNTRIES
The objective of the paper is to examine key aspects of human resources management of different categories of personnel in ministries of defence, i.e. civil servants, military officials and other staff categories in Serbia, Croatia and Slovenia. The paper analyses the legal rights and responsibilities of all categories of staff, with a special focus on the recruitment and selection process and remuneration and assesses whether they are in line with international standards. The findings of the analysis demonstrate important exceptions to the principle of merit and public competition rules in the defence sector in all three countries, which poses a serious risk for the application of the merit principle. In all analysed countries there are also separate remuneration legal regimes, which enables the employees in the defence sector to have higher levels of salaries in comparison to their colleagues in the civil service. Although the desire to increase the level of salaries may be understandable in order to increase the motivation of MoD’s staff, this comes with the risk of undermining the unity of the civil service. In order to overcome these issues, it is important to ensure the observance of the merit principle with regard to recruitment and selection of the MoD’s staff based on an open competition. Furthermore, it is recommended that a careful job benchmarking exercise be carried out which would compare the complexity and responsibility of jobs in the civil service and armed forces and align their salary levels in a fair and acceptable manner.
Keywords: legal status, human resources management, Ministry of Defence, Serbia, Croatia, Slovenia.
APPLYING THE PRINCIPLES OF GOOD GOVERNANCE TO THE REGULATION OF PUBLIC PROCUREMENT WITH SPECIAL REFERENCE TO CROATIA
Considering the complexity of the tasks performed by public administration, the administrative doctrines represent a very dynamic area of contemporary development of public administration. What distinguishes administrative doctrines from each other are the values implemented in each doctrine depending on the economic, political, social, and other circumstances, and these circumstances impose certain values as priorities. From the doctrine of new public administration, which emphasized political and social values as a strategic goal, an important turning point was reached with the introduction of the new public management, which aims to modernize the public sector by introducing the market and competition to involve the private sector in the provision of services. The doctrine of good governance represents a variation of the approach mentioned above. The European Commission insists on the implementation of the principles of good governance in the Member States, emphasizing the need for governance based on sustainable development and inclusion of social and environmental components in many areas of activity. The authors attempt to answer the question of whether and in what way the principles of good governance are applied to public procurement procedures in Croatia, focusing on social and environmental objectives. Public procurement procedures are an essential part of the state’s economic activity, so in this way, the state can influence market conditions and achieve sustainable (secondary) goals that go beyond the search for the most economically advantageous offer. In the research, the authors hypothesise that public tenders in Croatia do not usually include secondary selection criteria. The aim of the work is to determine whether the national normative framework for public procurement is suitable for sustainable goals and to offer a solution for its improvement. The research is conducted using the comparative method and the method of legal analysis.
Keywords: good governance, public procurement, social criteria, environmental criteria, public participation.
DISCIPLINARY LIABILITY OF PUBLIC SERVANTS – WITH PARTICULAR REFERENCE TO EMPLOYEES OF HIGHER EDUCATION SYSTEM – IN RELATION TO DISCIPLINARY LIABILITY OF CIVIL SERVANTS IN THE REPUBLIC OF CROATIA
The paper presents the legal regulation of disciplinary liability of employees of higher education institutions (public servants) and the regulation of disciplinary liability of civil servants in the Republic of Croatia, regulated by the Law on Civil Servants. At the outset, the legal nature of the public service relation is defined as an employment relation, and the concept of public servant is demarcated from civil servant, i.e. the legal definition of public and civil service within the single concept of public administration. In terms of disciplinary liability arising from the employment relationship, the legislative framework for initiating and conducting disciplinary proceedings, disciplinary acts for which the worker can be held responsible and disciplinary sanctions are determined, with special reference to the Croatian Labour Law. Both procedures are compared: the disciplinary procedure of public officials and the disciplinary procedure of civil servants, and the legal basis is specified. In the central part of the paper, we outline the disciplinary procedure for higher education employees in accordance with the provisions of the Law on Higher Education and Scientific Activity, including recent changes in the regulation of the disciplinary procedure in relation to the previous Law on Higher Education and Scientific Activity. The procedures of disciplinary liability, disciplinary acts and disciplinary measures determined by the general laws of four higher education institutions in the Republic of Croatia are compared. The authors conclude that the disciplinary procedure for employees of the higher education institution is vague and insufficiently regulated, because it is only regulated by the Law on Higher Education and Scientific Activity, which is not enough. The applicable law leaves too much autonomy to individual higher education institutions in the Republic of Croatia, which unnecessarily leads to possible different interpretations and a variety of internal regulations of the disciplinary procedure at different higher education institutions. The authors point to the need for additional (joint) legal regulation of procedures for violations of official duties, which would regulate disciplinary actions, minor and severe violations of official duties, procedures and sanctions at all higher education institutions. Harmonization of rights of all public servants (in state and public services) is suggested, as it would facilitate legal certainty for public servants. Further, adoption of the uniform disciplinary procedure for all public servants similarly is called for, particularly as it is stipulated by the law for all civil servants in the Republic of Croatia.
Keywords: disciplinary liability, public servants, civil servants, higher education institutions.
Temporary-work agencies present in the labor market worldwide as a result of the flexibilization of work, economic crises, globalization, and digitalization, as well as the unemployment. There are more people looking for employment than jobs offered by employers for recruitment. Those kinds of situations may put workers employed through agencies in a discriminatory position. In addition, law systems mostly do not regulate the establishment and terms of temporary-work agency. As a result, so-called agency workers are offered bad terms of work, which can lead to abuse of this institute. On those grounds agencies for temporary employment are established, creating a triangle of contract relationships. The employee is therefore responsible for his work to an agency, and there is a special relationship between the user undertaking and the temporary-work agency. This kind of relationship might be positive for employees and their rights, first of all as regards the additional chances for employment. It might be also welcome for a user undertaking in urgent need of hiring, inter alia. On the other hand, this kind of work might cause more vulnerability for workers, in the sense of minoring their working rights. In this paper, the author brings up the thesis that the lack of provisions for work of agencies for temporary employment and the lack of supervision of their work might put agency workers in a discriminatory position compared to other workers, and it might also lead to their exploitation. It can be also argued that the work of these agencies requires the permanent protection of agency workers.
Keywords: vulnerability, agency employees, temporary-work agency, discrimination, exploitation.
ARTIFICIAL INTELLIGENCE IN HEALTH CARE – APPLICATIONS, POSSIBLE LEGAL IMPLICATIONS AND CHALLENGES OF REGULATION
Recent developments in the application of artificial intelligence (AI) in health care promise to solve many of the existing global problems in improving human health care and managing global legal challenges. In addition to machine learning techniques, artificial intelligence is currently being applied in health care in other forms, such as robotic systems. However, the artificial intelligence currently used in health care is not fully autonomous, given that health care professionals make the final decision. Therefore, the most prevalent legal issues relating to the application of artificial intelligence are patient safety, impact on patient-physician relationship, physician’s responsibility, the right to privacy, data protection, intellectual property protection, lack of proper regulation, algorithmic transparency and governance of artificial intelligence empowered health care. Hence, the aim of this research is to point out the possible legal consequences and challenges of regulation and control in the application of artificial intelligence in health care. The results of this paper confirm the potential of artificial intelligence to noticeably improve patient care and advance medical research, but the shortcomings of its implementation relate to a complex legal and ethical issue that remains to be resolved. In this regard, it is necessary to achieve a broad social consensus regarding the application of artificial intelligence in health care, and adopt legal frameworks that determine the conditions for its application.
Keywords: artificial intelligence (AI), health care, legal implications, regulation, protection.
This paper examines and explores the concept of due diligence mechanisms in respect of human rights as it pertains to business entities in Albania. In recent years, there has been increased attention paid to the responsibility of businesses to respect human rights, especially in countries with less robust legal frameworks. Albania, a country undergoing rapid economic development, presents a compelling case study for examining the implementation of due diligence in this due context. The paper considers the various approaches to due diligence in respect of human rights, including the UN Guiding Principles on Business and Human Rights, and the mandatory due diligence legal framework of the European Union, and examines their application in the Albanian context. It also highlights the challenges and opportunities for businesses operating in Albania, particularly in the extractive and manufacturing sectors, and identifies areas for further research and collaboration between the government, civil society, and the private sector. Eventually, this paper argues that due diligence in respect of human rights is not only a legal obligation but also a crucial element of sustainable business practices, contributing to the long-term success and prosperity of both businesses and society as a whole.
Keywords: due diligence, entities, social responsibility, business, EU, Albania.
SELECTION AND EVALUATION OF JUDGES – IMPACT OF CRITERIA AND PROCEDURE ON INDEPENDENCE OF JUDICIARY
Ever since the adoption of the Constitutional amendments in February 2022, Serbia has been accelerating judicial reform, including adoption of new judicial package of laws in early 2023. Dozens of bylaws have to be adopted in 2023 to ensure implementation of the reforms. One of the key discussion topics is criteria and procedure for selection and evaluation of judges as instruments that ensure independence of judiciary. The selection and evaluation of judges are raising discussions in all countries that are in the process of the judicial reforms. The EU accession process is the main driver of judicial reforms across Western Balkan countries. In order to fulfil EU requirements, the Western Balkan countries are putting efforts to align the judiciary with the EU standards on independence. The article provides the brief comparative analysis on the criteria for the recruitment and evaluation of judges. The analysis consists of best practices of selected jurisdictions for the recruitment and evaluation of judges, with the focus on the competences judges need to have, criteria to apply for judicial office, weighting of different factors for selection/evaluation, including the mandatory nature of the decision of the selection committee. The article put special focus on EU member states and EU candidate countries with the aim to ensure a combination of different practices and factors. Selected countries are grouped in three categories: old EU member states, EU-11** and the EU candidate countries. Lessons learned from comparative examples and from previous Serbian experience could provide useful input for decision makers in the process of judicial reforms to establish legislative framework that ensures independence of judiciary.
Keywords: selection, evaluation, criteria, independence of judiciary, European standards.
A written comprehensive constitution, usually defined as ” formal”, is not the only form the constitution might take. There are unwritten constitutions, such as in the UK and Israel, that include laws prescribing constitutional principles and landmark decisions of the Supreme Court. In the Israeli legal system, which has neither a written constitution nor an entrenched bill of rights, human rights guarantees are incorporated into the constitutional arena by a presumption developed by the Supreme Court based on the Israeli Declaration of Independence, which states that the country will be established “on the foundation of freedom”. In doing so, the court followed the “Background Understanding Model”. Under this model, which is similar to the interpretive theory in the USA, there is a general understanding of civil rights, human rights, the rule of law, separation of powers, and other fundamental principles. In March 1992, a significant event occurred in the Israeli constitutional arena. The Knesset (The Israeli Parliament) enacted the Basic Law Freedom of Occupation and Basic Law Human Dignity and Liberty. These laws formed a “Constitutional revolution” and imposed restrictions on the power of the Knesset to pass any law it pleased. In enacting those Basic Laws, Israel has joined the family of nations that believe that limitations must be set on the right of a majority to derogate from fundamental human rights. However, these fragile achievements might be under constant threat.
Keywords: A Constitution without a Constitution, Human Rights, Rule of Law, Separation of Powers, Basic Laws, Constitutional Revolution.
THE PROSPECT OF REGIONAL INTEGRATION UNDER THE OPEN BALKAN INITIATIVE: A CONSTITUTIONAL APPROACH
The Open Balkan Initiative is a regional political initiative launched in 2020 by the leaders of three Western Balkan countries: Albania, North Macedonia, and Serbia. The aim of the initiative is to promote cooperation, economic integration, and political stability in the Western Balkan region. This is being conducted apart from the European Union integration process of these participating countries, and along the Berlin Process, which was set up in 2014 as a platform for high-level cooperation between high official representatives of the Western Balkan Six (WB6) and their pee.rs in Berlin Process’s host countries. The Open Balkan Initiative promises to introduce four fundamental freedoms that shall integrate further the markets and the economies, namely the free movement of persons, goods, services, and capital. As such, this regional initiative promises to deliver the benefits of a preferential trade agreement in terms of regional integration of countries and their economies. This paper analyzes the prospect of the Open Balkan Initiative as an instrument for furthering the integration of the participating states and the region in general. This question shall be analyzed through the lenses of the European Union theories of economic integration, with a particular focus on the spill-over effect paradigm. The ultimate aim is to understand, from the legal and scholarly perspective, whether the Open Balkan Initiative is capable of serving as a constitutional instrument for enhancing regional integration in the Western Balkan region.
Keywords: Regional integration; Open Balkan Initiative; European Union; European integration.
INTERNATIONAL AGREEMENTS AS INSTRUMENTS FOR FURTHERING REGIONAL COOPERATION IN SOUTHEAST EUROPE
Regional cooperation between the countries of Southeast Europe and the Western Balkans was launched more than two decades ago. Since then, a number of different initiatives, cooperative platforms and other means of international cooperation have been deployed and used for the sake of strengthening this cooperation. There are almost all areas of interstate actions that have been included in the intergovernmental coordination and cooperation with a varying degree of connecting and integrating them. The concrete modalities of cooperation included not only political manifestos, joint declaratory statements by the governmental representatives, but over time materialised in a more solemn and official forms, such as the one of international agreements. Some cooperative initiatives resulted in the establishment of intergovernmental organisations and entailed further coordination, or even harmonisation, of the national policies in certain areas by conclusion of multilateral agreements. In this respect, this paper aims at exploring in which manners furthering regional inter-state cooperation was implemented via conclusion of international agreements as the tools of intergovernmental interaction, which are governed by International Law. The paper examines used formats of the agreements as well as the extent of interconnecting activities and coordinating efforts in the areas covered by concrete agreements.
Keywords: international agreements, regional cooperation, Southeast Europe, Western Balkans.
INSTITUTIONAL FRAMEWORK AND INTERNATIONAL ENVIRONMENTAL ORGANIZATIONS FOR SUSTAINABLE DEVELOPMENT
Sustainable development must be supported by strong and well-organized institutions. Institutions that control the rationality of use and the degree of depletion of resources constitute the necessary framework for achieving sustainability. Some countries have adequate institutional frameworks that enable the effective implementation of sustainable development goals, while other countries direct their activities towards its establishment. An important factor in the implementation of the European Green Deal, which can be defined as a set of political initiatives of the European Commission with a comprehensive goal of climate neutrality as well as a catalyst for an inclusive and just transition, is the institution’s legal competence. In this sense, the paper will analyse institutional support for sustainable development. The subject of research are international organizations operating in the environmental protection sector.
Keywords: sustainable development, institutional framework, international organizations, environmental protection.
ENFORCEABILITY OF AUTONOMOUS BANK WARRANTIES, IN THE PERIMETER OF BUSINESS-TO-BUSINESS LOANS
he paper focuses on the problematics of the enforceability of autonomous bank warranties and security agreements, accompanying B2B loans, which continuously raised multiple interrogations for legal practitioners. Firstly, the paper approaches the enforceable character of the non-jurisdictional title materialized as a bank guarantee, which is not expressly regulated under European Contract Law. The salient question arises as to whether, under the current provisions of Romanian Law, particularly in the light of the provisions of Article 120 of Governmental Extraordinary Ordinance no. 99/2006, the fiduciary guarantee contracts, concluded by a credit institution, could constitute enforceable titles. Secondly, specific attention is devoted to the issue of identifying enforceable autonomous bank guarantees as an extrinsic enforceability not being incidentally mirrored in the main legal relationship, particularly of the bank credit agreement. Thirdly, the paper examines whether it remains possible for the enforceability deduced from the intrinsic value of the debt specified by the autonomous bank guarantee, to be conjugated with their irrevocable specificity, which would be established between the main contract (as the generator of the executability of the guaranteed bank loan) and the considered personal guarantees (passive solidarity of debtors) as accessories of the B2B credit agreement. Under the current jurisprudence, it remains crucial to establish the autonomous nature of the payment warranties, especially for the autonomous counter-guarantee, as suretyship varieties where the guarantor undertakes to fulfil the debtor’s obligations in the hypotheses that the latter fails to perform.
Keywords: enforceability, autonomous bank warranties, B2B loans, creditors, security agreement, suretyship.
The contribution is examining the exciting technological phenomenon of the metaverse through the lens of Intellectual Property Rights (IPR) and their potential application in this virtual ecosystem. More precisely, the focus of the paper is on three types of Intellectual Property Rights – Copyright, Patents and more extensively Trademarks. Firstly, the author offers some definitions and pinpoints the main features of the emerging virtual realities, as well as clarifies their interplay with blockchain technologies. Also, she underlines the flexibility of IPRs and the intangible nature of their protected subject matter, which makes it easier to extend the implementation of their legal norms from the real world to the realms of the metaverse. Further, the paper explores for each of the three IPRs the potential to contribute to the development of the metaverse and its economy, e.g. through the creation of virtual works of art and trading with “art NFTs”; registering Patens for hardware systems and devices that enable access to the metaverse (e.g. AR or VR glasses), and creating, trading and protecting through Trademarks virtual goods, which represent intangible twins of their branded real-life products.
Keywords: Intellectual Property, metaverse, NFT, copyright, patent, trademark.
WAIVER OF MORAL RIGHTS IN COPYRIGHT LAW: WHAT BANGLADESH CAN LEARN FROM THE UK APPROACH?
The provisions pertaining to moral rights were included in the copyright law of the United Kingdom (UK) as a consequence of the enactment of the Copyright, Designs and Patents Act 1988 (CDPA). The UK has included a comprehensive waiver of the moral rights clause in CDPA, although the Berne Convention provides no definitive guidance on this issue. In contrast, the Copyright Act of Bangladesh, enacted in 2000, has a provision for moral rights compliant with the Berne Convention. While Bangladesh has maintained full compliance with the Berne Convention in regard to moral rights, the Copyright Act, 2000 contains no specific provision regarding the waiver of moral rights. There is no doubt, however, that the explicit clause addressing the waiver of moral rights in the UK’s copyright legislation offers authors and publishers significant benefits. Because retaining ambiguity or grey areas in the law, such as Bangladesh’s copyright statute, might generate unnecessary confusion and impediments to the author’s freedom of choice. From this perspective, this article will attempt to analyse the UK’s approach to waiving moral rights, given that both countries share exact origins in copyright legislation. This article will also discuss whether the possible insertion of a waiver provision to the copyright statute of Bangladesh will be advantageous and beneficial to authors and publishers.
Keywords: copyright law, Bangladesh, the UK, moral rights, waiver.
In 2020, the Republic of Serbia adopted the Law on Digital Assets (Official Gazette of the Republic of Serbia no. 153/2020). Legal regulation of the issuance, use and circulation of digital assets is present in a very small number of European countries. Although the 2020 European Union Proposal for a Regulation on Markets in Crypto-assets encourages the regulation of the crypto-assets market at the national level of member states, the question can be raised whether the available mechanisms and means are effective enough in preventing the abuse of digital assets and in protecting the integrity of crypto-assets market. Bearing in mind that the international standards in the field of abuse prevention have been adopted recently, while some are still in the process of being established, we start from the assumption that it will be necessary to additionaly improve both legislation and institutional capacities in the mentioned area at the national level. In the first part of the paper, we first point out the emerging forms of abuse of digital assets, and then we will look at the international standards that define potential prevention mechanisms. After that, the legislation of the Republic of Serbia in the field of prevention of abuses related to digital assets and the crypto-assets market will be analysed. Therefore, the method of content analysis and the dogmatic method dominate in this paper. By applying the mentioned methodology, we try to give recommendations for improving the mechanisms of prevention of abuses at the national level.
Keywords: digital assets, abuse prevention, legislation, challenges, improvement.
The process of urban planning and development significantly impacts many areas of modern living. Whether good or bad, urban planning and development leave imprints of economic, environmental, social, political, and legal nature. Well-conducted urban planning and development can serve as a booster for the economy, enabling the construction industry’s rise. Environmental protection is quite dependent on urban planning and development being conducted in a manner that is not harmful to the environment. The implementation of social measures like providing affordable housing or enabling rural development also depends on urban planning and development acts. Passing zoning plans and other urban planning and development acts is both a legislative and political process and affects public as well as private interests. Considering the multilevel effect of urban planning and development, the paper elaborates on the impact of urban planning and development on the private interests of the holders of real property rights. The paper examines the positive and negative effects of urban planning and development on private interest. By examining the positive effects, the paper aims to highlight legal solutions creating an equal opportunity climate for land development, enabling landowners and holders of other real property rights to fully exercise their rights and collect the benefits. The paper also analyses the negative effect on real property rights caused by insufficient, inappropriate, and/or uneven urban planning and development, affording privileged treatments, and other contributing factors. The goal is to pinpoint the legal solutions that have or may contribute to practices with a negative effect on the exercise of real property rights. Finally, the paper examines the clash between public and private interests related to urban planning and development and the legislative approach in prioritizing one over the other.
Keywords: property, real estate, construction, urban planning, ownership.
The paper analyses some major questions of the protection of cultural heritage from a comparative law perspective, drawing parallels between the relevant Hungarian (Act LXIV of 2001 on the Protection of Cultural Heritage, Act CXXV of 2017 on Sanctions for Administrative Violations, and Government Decree No. 191/2001 (18. X) on Heritage Protection Penalties), Serbian (Act on Cultural Heritage of 2021, and Act on Cultural Assets) and Slovenian (Act on the Protection of Cultural Heritage of 2008) regulatory backgrounds. The main points of the analysis include, for example: basic terminology, key institutions in charge of tasks relating to the protection of cultural heritage, main responsibilities of ministers concerned in cultural heritage conservation, requirements relating to experts and the training of concerned parties, provisions on removing cultural assets to a foreign country, registers and sanctions (system of penalties). The paper aims to highlight the main similarities and differences between the Hungarian, Serbian and Slovenian regulatory backgrounds on cultural heritage.
Keywords: cultural heritage, legal regulation, Hungary, Serbia, Slovenia.