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International Comparative Jurisprudence
Number of Followers: 2

This is an Open Access Journal

Open Access journal
ISSN (Online) 2351-6674
Published by Elsevier

[2906 journals]

THE COORDINATION OF MAIN AND SECONDARY INSOLVENCY PROCEEDINGS IN EUROPEAN
UNION INSOLVENCY LAW
- Authors: Remigijus Jokubauskas , Marek Świerczyński
  Abstract: This article focuses on the coordination of main and secondary insolvency proceedings in cross-border insolvency cases. The authors analyse how main and secondary insolvency proceedings should be coordinated in different aspects of these proceedings, namely: the opening of insolvency proceedings, the exercise of creditors’ rights, and the treatment of the debtor’s assets. The procedural peculiarities of the opening of secondary insolvency proceedings are also discussed. The article also examines how insolvency practitioners and courts in parallel cross-border insolvency proceedings should coordinate their actions to ensure proper response to the debtor’s insolvency problems. Moreover, the authors assess the relevant case law of the Court of Justice of the European Union and whether is compatible with the goal of effective cross-border insolvency proceedings
  PubDate: 2022-06-21
  DOI: 10.13165/j.icj.2022.06.001
  Issue No: Vol. 8, No. 1 (2022)
CONCERTED PRACTICES: CONCEPT AND EVOLUTION
- Authors: Martynas Jablonskis
  Abstract: The doctrine of concerted practices has been developed over several decades of jurisprudence. To grasp this doctrine in a coherent and structured manner is essential for understanding cartel enforcement under Article 101 TFEU. This article shows that the evolution of concerted practices could be divided analytically into six distinct stages. Some important precedents have been adopted at each stage. We capture them by the succinct formulation of “rules”. The entire set of “rules” concisely represents the doctrine of concerted practices. We then turn to their critical reflection. A fuller picture of concerted practices emerges, revealing important weaknesses in the doctrine: (i) an apparent lack of new conceptual developments, which could be partially explained by the rule that enabled imprecise qualification of cartel infringements as agreements “and/or” concerted practices; and (ii) rebuttable presumptions and notions of passive participation or tacit acceptance of collusion gradually turned into a sui generis prohibition of exchange of information, which is hardly compatible with the definition of concerted practices or even violates the presumption of innocence. The doctrine of concerted practices was shaped before the age of the internet and virtual competition, which makes it fairly outdated for addressing emerging issues of algorithmic collusion. We could expect a resurgence of interest in the fundamentals of the concept and forthcoming new conceptual developments.
  PubDate: 2022-06-21
  DOI: 10.13165/j.icj.2022.06.002
  Issue No: Vol. 8, No. 1 (2022)
TOWARDS THE HARMONISATION OF THE INITIAL COIN OFFERING RULES: COMPARATIVE
ANALYSES OF THE INITIAL COIN OFFERING LEGAL REGULATION IN THE USA AND THE
EU
- Authors: Marina Kasatkina
  Abstract: This article consists of a comparative study of approaches to crypto-assets in the USA and EU, as well as an exploration of the reasons behind such differences. These two jurisdictions vary dramatically in their history, economy and legal systems. Therefore, differences in legal regulation regarding the Initial Coin Offering are to be expected. Doctrinal comparisons of legal regulation rarely shed light on the way that law actually operates, but are necessary to answer the question of why countries do not enact similar approaches to the regulation of the Initial Coin Offering. This leads to the conclusion that, in both jurisdictions, there exists no legal certainty. Meanwhile, the failure of either the United States or the European Union to regulate the crypto-assets market effectively will have spill over effects for other jurisdictions. There is, therefore, an urgent need for strengthening international standards in the regulation of crypto assets. Therefore, this article intends to contribute to the search for a necessary, appropriate, and transnational way to chart the contemporary legal landscape of Initial Coin Offerings. The most favourable form of legal convergence regarding the Initial Coin Offering should provide increased legal certainty while protecting consumers and fostering substantial investment in innovation.
  PubDate: 2022-06-21
  DOI: 10.13165/j.icj.2022.06.003
  Issue No: Vol. 8, No. 1 (2022)
SAME-SEX RELATIONSHIPS – THE ABSENCE OF LEGISLATIVE FRAMEWORK IN THE
REPUBLIC OF KOSOVO
- Authors: Egzonis Hajdari, Albulena Hajdari Krasniqi, Íbrahim Ömer
  Abstract: According to the Constitution of the Republic of Kosovo, all persons are equal before the law and no one shall be discriminated against on the grounds of sexual orientation, or any other personal status. Furthermore, the Kosovo Constitution leaves open the possibility that members of the LGBT+ community can even use their right to marry, as it provides that everyone has the right to marry and create a family. However, this provision refers to Family Law in all matters relating to marriage and divorce. On the other hand, the Family Law of the Republic of Kosovo recognizes only the marriage of two persons of different sexes. Related to this, the law provides that marriage is a legally registered community of two persons of different sexes. Moreover, the Family Law does not recognize civil unions or domestic partnerships, and these are not regulated by any special law here. In contrast to Family Law, the Criminal Law of Kosovo includes articles that protect persons of the LGBT+ community. This paper will also consider a comparative approach towards the legislative framework of other former Yugoslav States regarding same-sex relationships.
  PubDate: 2022-06-21
  DOI: 10.13165/j.icj.2022.06.004
  Issue No: Vol. 8, No. 1 (2022)
THE CRIMINALIZATION OF VOLUNTARY INCESTUOUS INTERCOURSE BETWEEN MEMBERS OF
THE NUCLEAR FAMILY IN THE BALKANS
- Authors: Teodor Manea
  Abstract: The aim of this paper is to assess whether the legal definitions used by some European legislators to criminalize voluntary incestuous intercourse are in line with the results of the most recent studies. As we are about to show, incest has for centuries been a taboo topic and the subject of cautionary tales. Given that available studies clearly prove that incestuous relationships more often than not have negative effects on both the participants and their offspring, this paper does not call into question the necessity of having such norms, but rather the manner in which such a legislative policy is to be carried out. By comparing the criminal law norms used by Albania, Austria, Bosnia and Herzegovina, Bulgaria, Croatia, Hungary, Romania, Serbia and Slovenia, this paper provides a comparative insight regarding the rationale behind the criminalization of such relationships in the Balkans and the surrounding area.
  PubDate: 2022-06-21
  DOI: 10.13165/j.icj.2022.06.005
  Issue No: Vol. 8, No. 1 (2022)
LEGAL COOPERATION IN CRIMINAL MATTERS: THIRTY-YEARS’ EXPERIENCE OF
THE BALTIC STATES
- Authors: Andrius Nevera, Sandra Kaija, Kaie Rosin
  Abstract: This article overviews the 30 years of experience of Lithuania, Estonia and Latvia in developing national systems of legal cooperation in criminal matters. In order to reveal individual experiences of the three States, the developments of law and practice of each State from the re-establishment of its independence to the present day are covered in separate sections of the article. For this purpose, experiences related to the development of national laws are presented over two time periods – before and after membership in the European Union. The experience of each State in concluding different international agreements on legal cooperation in criminal matters is also discussed. Considerable attention is paid to the implementation of the secondary legislation of the European Union, such as Council framework decisions and directives. Irrespective of the membership of the Baltic States in the European Union and the areas of freedom, security and justice developed in this area on the basis of the principle of mutual recognition, the system of cooperation with third countries retains its particular relevance and is also analysed in this article. In order to reveal the positive and negative experience of each State in this area after the re-establishment of independence, an analysis is conducted of both national and international legislative provisions. The article also highlights and explores the main transformation trends of international legal cooperation in criminal matters in an effort to create fast and smooth criminal proceedings in line with the highest standards of human rights protection, where much importance and significance is attributed to legal cooperation both within the European Union and in relationships with third countries.
  PubDate: 2022-06-21
  DOI: 10.13165/j.icj.2022.06.006
  Issue No: Vol. 8, No. 1 (2022)
ELECTRONIC VOTING IN ADOPTING RESOLUTIONS OF LIMITED COMPANIES: THE
EXAMPLE OF ESTONIAN LAW
- Authors: Maris Vutt
  Abstract: In the wake of the COVID-19 crisis that began in 2020, countries all over the world had to develop new solutions in legislation to replace various traditionally physical operations with digital solutions. Estonia, with rules in the field of company law and in holding shareholders’ meetings, was no exception. In May 2020, new regulation was introduced into Estonian law, allowing shareholders to participate in meetings using digital means. Although electronic voting itself was already allowed under Estonian law before 2020, the new situation raised a number of legal issues. This article addresses these issues and possible solutions with regard to the legal perspective of electronic voting. As the law does not contain precise requirements for holding an electronic vote, there are many aspects that must be considered in order to comply with the general principles of company law, e.g., how to identify the person giving their vote, and how to ensure the security and reliability of electronic voting. Based on the analysis in this article, the procedure must ensure the identification of shareholders as well as the reliability of casting votes, but must also be proportionate for achieving these aims.
  PubDate: 2022-06-21
  DOI: 10.13165/j.icj.2022.06.007
  Issue No: Vol. 8, No. 1 (2022)
AMICABLE DISPUTE RESOLUTION AT COURT: CONCILIATION HEARINGS, THE AUSTRIAN
AND GERMAN PERSPECTIVES
- Authors: Sascha Ferz
  Abstract: Both the Austrian and German civil procedures deploy an intra-court conflict resolution proceeding that follows the principles of a mediative conciliation process. The decisive difference between the two institutions cannot be found in the name, but in the fact that the German initiative is already legally enshrined, whereas in Austria, it is still assumed to be a project. For this reason, contrasts between the two approaches can be found in the legal qualification and the procedure of court conciliation, as well as in the legal classification, role and function of the conciliation judge. In both cases, however, conciliation proceedings at court convey the idea that there is a hidden solution in almost every conflict that is profitable for all parties. It is never too late to seek such a solution in any phase of conflict management, even in the judicial environment. A conciliation hearing at court brings movement into deadlocked conflicts by the conciliation judge gathering facts together with the parties and trying to shed light on the underlying interests to facilitate comprehensive conflict management tailored to the parties involved, and thus finally solving the overall conflict. Judges take on this role of a conciliation judge in addition to their in-court settlement work in standard proceedings. This article aims to compare the legal situation in the two countries, address the two approaches of introducing the method of the conciliation process at court, analyse the scope of their legal regulation, as well as to discuss questions about their successful practical implementation in the organisational framework and to reveal the role, standing, and training of conciliation judges.
  PubDate: 2022-06-21
  DOI: 10.13165/j.icj.2022.06.008
  Issue No: Vol. 8, No. 1 (2022)
CERTIFICATION AS A REMEDY FOR RECOGNITION OF THE ROLE OF AI IN THE
INVENTIVE PROCESS
- Authors: Liva Rudzite
  Abstract: Artificial Intelligence and its subfield Machine Learning have considerable potential to improve the welfare of humans. Due to the specifics of Artificial Intelligence and its enhancing capabilities, there is an increasing incentive to innovate if the role of Artificial Intelligence in the inventive process is recognized not solely as a tool under the patent legal framework. Nonetheless, since the concept of an “inventor” is traditionally attributed to natural persons, there is no consensus on whether the mentioned term should be interpreted as a living instrument. This article focuses on interpreting the concept of an “inventor” under the patent legal framework. It outlines the potential approaches to address an incentive to innovate if the role of Artificial Intelligence in the inventive process not only as a tool is reflected. The main argument developed in the article is that proposals to amend the patent legal framework to address the issue might not be as preferred as introducing the certification system instead.
  PubDate: 2022-06-21
  DOI: 10.13165/j.icj.2022.06.009
  Issue No: Vol. 8, No. 1 (2022)