Bialystok Legal Studies vol. 26 nr 5 (Special issue)
Articles:
Mirosława Laszuk, Dana Šramková
Challenges of Customs Law during the Paradigm of “Facility and Security” in International Trade
DOI: 10.15290/bsp.2021.26.05.01
Abstract: Changing conditions within international trade as well as the implementation of the facilitation and security paradigm have significantly impacted the structure of customs law. Both the SAFE Framework as well as the Trade Facilitation Agreement had indicated the need to maintain a balance between regulations introducing simplifications and those ensuring safety and security. One example of such a solution is the institution of the authorised economic operator (AEO), which grants those entities opportunities to take advantage of a number of simplifications, such as the filing of the simplified customs declaration, making entries in a registry, or performing self-assessments, but, at the same time, maintains the requirement of safety and security (through a detailed audit of the enterprise before AEO certification). However, by allowing authorised economic operators to perform self-assessment in respect of goods that have entered into the customs territory of the European Union and are to be released for trade, EU legislators have created significant challenges concerning the realm of safety and security, especially concerning the institution that is the most important within that area – that of customs controls. Despite all this, its importance to safety and security remains distinctive and may be seen in the emergence of new types of customs controls which concern only this particular sphere.
Keywords: customs control, facilitation, paradigm, security, trade
Page range: 9-21
Oscar Rosario Gugliotta
The Paris Agreement 5 Years Later: The Challenges of Climate Finance and Multilateral Development Banks
DOI: 10.15290/bsp.2021.26.05.02
Abstract: In all matters regarding climate change, the modern world presents complex challenges which highlight how investments in infrastructure have as of yet been inconclusive. The emission percentages calculated by relevant studies demonstrate the need for long-term investments in infrastructures, to ultimately reduce the impact on the environment and our health. To this end, in alignment with the principles expressed in the Paris Agreement – reducing global warming and incentivising a zero-emission transportation system – and the Sustainable Development Goals (SDGs), these new infrastructures will require a structural change that can be guaranteed by multilateral development banks (MDBs), given their nature, especially within developing countries. MDBs play an important role in supporting local governments, on the one hand creating a prosperous environment for sustainable infrastructures and, on the other, providing innovative financial instruments that could increase the financial sector’s participation. In this paper, after a brief excursus on the Paris Agreement’s role in the global climatic crisis, there will be an evaluation of the relations between MDBs and climate finance, with a focus on green bonds.
Keywords: climate finance, green bond, multilateral development bank, Paris Agreement
Page range: 23-40
DOI: 10.15290/bsp.2021.26.05.03
Abstract: This article, which is intended for arbitration practitioners, demonstrates that international arbitration as a subset of the field of alternative dispute resolution (ADR) offers a useful toolkit for the expeditious resolution of international intellectual property law disputes. The article demonstrates how the theory and practice of international arbitration is particularly well poised to address some of the specific considerations and requirements of paramount concern to the international intellectual property lawyers and their clients. The article will explain how the inherent features of the international arbitration legal landscape combine to indicate that it should be considered as the preferred method of ADR and explain how each of these features can provide both time and cost efficiencies. The article will identify the legal reasoning behind the benefits inherent to choosing international arbitration and will also address those circumstances when international arbitration may be precluded or otherwise considered unsuitable for intellectual property matters. The article examines several distinct benefits that international arbitration uniquely offers to international intellectual property law users and highlights some areas of the field that require additional caution.
Keywords: ADR, arbitration, commercial law, dispute resolution, intellectual property
Page range: 41-62
DOI: 10.15290/bsp.2021.26.05.04
Abstract: Nowadays, personal data represent a strategic asset for companies as they can significantly influence their market position. Indeed, the issues arising from the management of large amounts of data (so-called big data) are not only relevant for data protection authorities, since this practice has also induced the intervention of competition and consumer protection authorities. The digital economy has enhanced new forms of abuses of dominant position and unfair practices, which can be performed via the handling of big data. This paper starts by analysing the German antitrust authority vs Facebook decision in which the big-tech platform was sanctioned for having performed an exploitative abuse of dominant position through its data management strategy. Then, it focuses on the Italian antitrust authority vs WhatsApp decision, where WhatsApp was deemed responsible for unfair and aggressive practices aimed at extracting users’ consent for data-sharing purposes. These two remarkable cases will be compared and further discussed, outlining the need to rethink the strengthening interplay between data protection, competition and consumer law, as it will entail a closer contact of the respective authorities to ensure the sustainability of digital markets.
Keywords: abuse of dominant position, big data, competition law, consumer law, data protection law, European single market
Page range: 63-74
Vita Czepek, Elżbieta Karska
Peace Agreements as International Legal Acts Protecting National Minorities: The Scope Ratione Personae
DOI: 10.15290/bsp.2021.26.05.05
Abstract: The issue of the protection of national minorities is regulated by acts of international law, frequently arising from international agreements that have been concluded to end armed conflicts or to regulate directly their consequences. Peace treaties concluded between states are governed by the rules set out in the Vienna Convention on the Law of Treaties. More and more peace agreements are, however, concluded by non-state actors. As indicated in Article 3 of the Convention, it cannot be excluded that these too would be international agreements, having effects in the sphere of international law. Such acts are concluded, inter alia, by insurgents or belligerents. In some cases, agreements ending non-international armed conflicts are concluded by domestic entities that are not subjects of international law. Such acts may reflect solutions that have been adopted as standards in international practice and in the provisions of international law. These do not necessarily have to be legally binding standards. They can also be framework solutions, including measures relating to the protection of national minorities, which are formulated and offered as proposals for specific regulations.
Keywords: international agreements, national minorities, peace agreements
Page range: 75-89
Irina Cvetkova
The Abolition of the Concept of “Causa” in French Civil Law
DOI: 10.15290/bsp.2021.26.05.06
Abstract: Causa is a subjective motive that determines the content of the obligation or material interest, which encourages the party to the trade to enter into an obligation taking on the associated burdens. In the countries of continental (mainland) Europe that belong to the Romano-Germanic law system, such as Germany, France, and Italy, the goal (objective) of the parties to the trade, causa, is legally significant. In the theory of the Civil law of the Romano-Germanic system, there is a general principle – any obligation arises for some purpose, which is called the basis of obligation. Causa is an individual interest that meets the requirements of the legal system. France was one of the last European countries that did not recognise the contingency theory as a basis for regulating the binding force of a contract. In practice, the courts have faced criticism of the concept of causation from both doctrine and law enforcement practice. In 2016, there was a significant reform of the French law of obligations. Legal science, undeservedly, did not attach due importance to one of the most noticeable innovations within the framework of the mentioned reform – the abolition of the concept of “causa” (reason, basis) of the contract, which until recently was one of the most original features of the French law and originated from Roman law, which was fixed in the Napoleonic Code. In this article, the theoretical provisions for the abolition of the concept of causa in French civil law, within the framework of the reform of the Civil Code, were investigated, and the corresponding conclusions were drawn.
Keywords: causa, contract, exception, obligation, stipulation, transaction
Page range: 91-102
Karina Palkova, Lidija Rozentale
Civil Unions (Non – Registered Partnerships) and Patients’ Rights: Problematics and the Future Perspective
DOI: 10.15290/bsp.2021.26.05.07
Abstract: Unlike the institution of matrimonial law, which has developed over several hundred years and thus has a solid legal basis, the legal framework for non-registered partnerships is a relatively recent legal phenomenon, which therefore also means that the legal framework in those countries where it is applied is not uniform and there are significant differences between different legal systems. The legal framework of non-registered partnerships is influenced by the traditions, history, culture, religion, and other factors of the country and its population. With the development of non-registered partnerships, new challenges are emerging in various fields, including healthcare in terms of ensuring patients’ rights. This results in a situation where there is a lack of regulation in society to protect all families, regardless of whether the family is based on a registered or non-registered partnership. The purpose of the article is to clarify the role, and importance, as well as crucial problematics of non-registered partnerships from the patients’ point of view. The methodological basis of the research includes general theoretical principles of scientific knowledge. This knowledge provides various aspects in the study of non-registered partnerships and the patients’ rights in healthcare. The scientific novelty is to identify the essence and importance of the fundamental rights of each person and to clarify the legal problematics of the non-registered partnership institution that influence patients’ rights in the decision-making process.
Keywords: decision making, healthcare, non-registered partnerships, patients’ rights
Page range: 103-118
Dorota Lis-Staranowicz, Róbert Jáger
Polish, and Slovak, Women in the European Parliament: an Analysis of the Results of the Election Held in May 2019
DOI: 10.15290/bsp.2021.26.05.08
Abstract: The objective of our paper is to analyse the political activity of Polish, and Slovak, women in EP elections; we aim to determine, among other things: whether gender quotas are a decisive factor for women’s electoral success, or do other factors result in an increase/decrease in the number of female candidates and the number of women MEPs? What are the particular characteristics of women representing Poland, and Slovakia, in the EP? What was their path to the EP? Which (conservative, liberal) parties are more willing to put women forward in EP elections? Poland introduced the so- called gender quotas into the electoral system, while Slovakia does not have such legal solutions in place. However, when comparing Slovakia to the situation in Poland, it can be stated that although there is a system of election quotas in Poland, its practical implementation may be purely theoretical. In percentage terms, the number of Slovak women elected to the European Parliament (except 2019) was significantly higher than in Poland, even though there is no quota system in the Slovak Republic. The success of Polish, and Slovak, women in the elections to the EP of the 9th term is the result of many factors, which include so-called electoral engineering (quotas, gender balance, first and second places on lists), electoral strategy of a party, but above all, political and social activity of the women themselves. We consider the last factor to be determinant in this respect.
Keywords: election law, European elections, European Parliament, gender quota
Page range: 119-140
Magdalena Małecka-Łyszczek, Katarzyna Małysa-Sulińska
The Universal Right to File Petitions as a Contemporary Challenge for Legal Studies
DOI: 10.15290/bsp.2021.26.05.09
Abstract: The universality of the right to petition, in terms of both the broad specification of its subject matter and the group of entities entitled to petition, as well as the specification of the accessible formal requirements for filing petitions, is a challenge at the level of both lawmaking and applying the law. The need arises not only to ensure that an extensive group of entities has the opportunity to file a petition, but also to provide a guarantee that the petition will be processed and considered properly. The subject matter of this article is the analysis of the Polish legal regulations on this, as well as a review of the established practices of filing petitions with the Sejm and the Senate, as well as their comparison with the solutions applied in other countries. The findings indicate that this is a tool of a civil society commonly used in the European Union Member States. It should also be noted that the Polish solutions, as well as the practice of their application, are seen to be particularly targeted at increasing social activity and enabling the use of the potential that is inherent in the citizens, groups of citizens and all forms in which they can interact with each other.
Keywords: civil society, entities with the capacity to file petitions, formal requirements of petitions, participatory democracy, subject matter of the petition, the right to petition
Page range: 141-160
Tomasz Nieborak
Human Rights in the Light of the Process of Financialisation
DOI: 10.15290/bsp.2021.26.05.10
Abstract: The article deals with the challenges resulting from financialisation, in which we observe an increasing impact of the financial sphere in man’s everyday life. It also considers the effect of this process on the functioning of societies and concludes that the process of creating and applying financial market law must be redefined and human rights issues taken into account. In addition to the activity of the UN and the European Union in promoting the concept of business and human rights, the experiences of recent years show that combining human rights with financial market regulation is possible. To achieve this, however, many actors must be involved and a specific understanding of human rights and values must be adopted, and their protection should constitute the core of the legislator’s activity.
Keywords: common good, dignity, financialisation, financial market, human rights
Page range: 161-185
Paweł Czaplicki
The Electronic Bill of Exchange Concept from an International Perspective
DOI: 10.15290/bsp.2021.26.05.11
Abstract: The aim of the article is to examine the structures of electronic bills of exchange. It also includes an analysis of the proposed shape of an electronic bill of exchange prepared for the needs of the Polish legal system by the Working Group for distributed registers and blockchain, operating at the Ministry of Digitalization. The comparative and dogmatic methods were used for the analysis. According to the hypothesis put forward by the author, the introduction of the construction of an electronic bill of exchange to the Polish and foreign legal systems is necessary to maintain the functioning and importance of bills of exchange among securities that are traded in the economy. However, the implementation of an electronic promissory note requires appropriate legislative changes, as the current legal status does not allow for an unambiguous statement of the possibility of issuing them.
Keywords: bill of exchange, Blockchain, electronic value papers
Page range: 187-195
Wojciech Lis
Enforcement of the Obligation to Maintain Contact with a Child
DOI: 10.15290/bsp.2021.26.05.11
Abstract: A child needs contact with both parents to be able to live normally and develop properly. This contact is ensured when the parents are living together. In the event that the parents are separated, and in the event of disagreement as to maintaining contact with the child, the contact is determined by the courts. Sometimes, however, in order to enforce this contact, it is necessary to threaten or impose a financial sanction. The question arises whether such forced contact with the child fulfils its role and serves the child’s well-being.
Keywords: contact with a child, enforcement of contact, enforcement proceedings, role of financial sanctions, welfare of a child
Page range: 197-211
Ewa Lotko
The Role of Fiscal Expenditure Rules in Maintaining the Financial Stability of the State
DOI: 10.15290/bsp.2021.26.05.11
Abstract: One of the main challenges which legal science faces nowadays is the creation of legal mechanisms guaranteeing sound public finance. The aim of this article is to assess the role of national fiscal rules in maintaining financial stability. Firstly, to fulfil this aim, the role of fiscal rules and their efficiency was analysed. Next, based on the commonly used tool assessing the quality of national fiscal rules – the Fiscal Rule Index – the quality of expenditure rules in the EU countries was analysed in order to evaluate the Polish stabilising expenditure rule and the escape clause of its application. Therefore, the following research question is to be answered: whether in the face of an unstable financial situation of the state connected with an increasing deficit, deviation from the stabilising expenditure rule should be considered as being right. Research methods based on non-reactive research, i.e., analysis of professional literature, legal acts, and statistical data published by the European Commission, were used in this article. Due to this analysis, it was indicated that expenditure rules are regarded as one of the most effective tools to manage public funds, and therefore any derogations from the application of these rules should be evaluated negatively.
Keywords: deficit, escape clause, expenditure rule, fiscal rules, financial stability
Page range: 213-228
Joanna Radwanowicz–Wanczewska, Nicola Fortunato
Non-ruling forms of activity of public administration in administrative enforcement proceedings
DOI: 10.15290/bsp.2021.26.05.11
Abstract: The article contains an analysis of the issues related to the application of non-ruling forms of activity of public administration in the performance of public law obligations through administrative enforcement proceedings. In principle, as part of such proceedings, public law obligations, understood as orders or prohibitions within the area of administrative law and other branches of law applied by administrative authorities (tax law, financial law, labor law), are carried out. Non-ruling forms of activity play a major role in administrative enforcement proceedings. The implementation of an enforcement measure may be related to authorized entities taking not only ruling, but also non-ruling actions. In order to apply an enforcement measure (which constitutes an institutionalized form of administrative compulsion), an administrative authority, on occasion, has to take non-ruling activities. Considering, primarily, the significant severity of the compulsion measures that may be applied towards the party obliged under enforcement proceedings, this proceedings should be carried out with respect for the values of a democratic state and with due care for the good of an individual.
Keywords: administrative enforcement proceedings, legal forms of activity of public administration, non-ruling administrative activities, public law obligation, state compulsion, taxes
Page range: 229-242