VOL. 4 | ED. 2 June 3, 2016
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LAWYR.IT TEAM Executive Editor Raluca Alexandra Maxim (Babeş-Bolyai University/Jagiellonian University)
Assistant Managing Editor
Radu Șomlea (Babeş-Bolyai University)
Alexandra Mureșan (Babeş-Bolyai University)
Junior Editors Adina Ionescu (Babeş-Bolyai University) • Angelika Mavrommati (Aristotle University of Thessaloniki) • Cătălin Sabău (Babeş-Bolyai University) • Diana Lucaciu (Babeş-Bolyai University) • Henok Gebeyehu (Central European University) • Krisztina Petra (Eotvos Lorand University) • Maria Cojocaru (Babeş-Bolyai University) • Mădălina Moldovan (BabeşBolyai University) • Oleksandr Zablotski (University of Vilnius) • Raluca Andreea TrîncăGăvan (Babeş-Bolyai University) • Răzvan Boștinaru (Alexandru Ioan Cuza University) • Simona Elena Ignat (Babeş-Bolyai University)
PR Managers Andrea Nikolic (University of Belgrade) • Andreea Lucaci (University of Bucharest) • Andreea Neșu (Babeş-Bolyai University) • Dora Maria Demble (University of Vienna - Juridicum) • Marek Tesar (Masaryk University) • Maria Belevoni (Aristotle University of Thessaloniki) • Paula Alexandra Ungureanu (Alexandru Ioan Cuza University)
Legal Researchers Adam Nagy (Central European University) • Ana Maria Paponja (University of Mostar) • Angeliki Tsanta (Aristotle University of Thessaloniki) • Daniela Ghicajanu (Babeş-Bolyai University) • Diana Buzilă (Babeş-Bolyai University) • Fotis Kokkinis (Aristotle University of Thessaloniki) • Georgiana Caramihai (University of Bucharest) • Mădălina Enea (Alexandru Ioan Cuza University) • Naida Softic (University of Sarajevo) • Rucsandra Grigoroaia (Alexandru Ioan Cuza University) • Sabina Aionesei (University College London) • Zvijezdana Markovic (University of Banja Luka) • Sarka Silhankova (Masaryk University) Disclaimer: Given that Lawyr.it is a fully student-run magazine, nothing from its pages should be understood as legal advice of any kind. Any questions about legal assertions, conclusions, sources used or representations made in these pages will be re-directed to the person who made them. If you do want to get in touch with one of the authors, please write to us at firstname.lastname@example.org at any time.
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EDITOR'S NOTE By Naida Softic
ummer is upon us and, for many of our readers and contributors, it marks an exciting new milestone: the graduation! As it approaches and you naturally reflect on your accomplishments, we would like to thank you for making Lawyr.it one of them. It has grown and developed immensely with your support and each of you played a significant role in making that possible. We wish you many opportunities ahead and an exciting world outside of your comfort zone. For this issue, we have chosen topics which will hopefully generate dialogue among our readers and encourage them to take action. Let us run down this issueâ€™s articles which we deemed to be both timely and important! The Domestic focus section brings you articles about the influence of politics on the national practices of different European countries in the areas as diverse as education, finances and security, oil exploitation, antidiscrimination policies or criminal law. The area of criminal law is further explored from the aspect of criminal liability and the role of actio libera in causa. This section also includes the review of a very interesting concept of special explanatory clauses, explained through the right to private life as an emerging human right. In Reflections section, we present you an article about the emergency arbitration, a relatively new tool of the international arbitration and its emerging importance in some of the most respectable arbitration institutions in Europe. The section also brings you an insight into a different kind of intervention and sovereignty under the Constitutive Act of the African Union. A different perspective on the concept of sovereignty is given in the article about the position of the states in the era of globalisation. The International focus is once again on the applicable European Union legislation, this time in three very different areas: trade and market regulations, voting rights for prisoners and the damages in cross-border motor vehicle accidents. Although the topics seemingly do not have much in common, they offer a valuable insight on the functioning of EU as a sui generis system in its different components. The section also includes the preview into the international perspective and controversies related to human rights in the extradition proceedings. The Interviews section features an interview with Ms. Monika Prusinowska, an Assistant Professor at the China-EU School of Law, a Sino-European law school founded by the European Union and the Chinese government. Ms. Prusinowska talks about her beginnings and about what sparked her interest in ChinaEU relations. The section also brings you a very interesting interview with Mr. Ryosuke Shimazu, an Associate Director in Debts Capital Markets at Emirates NBD in Dubai, on the emerging topic of Islamic finance and banking and the role of law in its development. Their stories encourage students and young lawyers to be aware of ever-changing legal environment and be information literate in such circumstances. More thoughts on qualities which make a good lawyer can be found in our Question of the Issue section. As always, this section brought together a number of respectable young lawyers and law students who are yet to follow their footsteps. This issue welcomes articles from guest authors on hot topics we identified as relevant in our previous issues. One of them is the cross-border healthcare as a key challenge for pharmaceutical non-discriminatory practice. The second one is Islamic extremism and anti-terror legislation in the Philippines. We encourage you to follow up on their work and send us your thoughts on these issues. In the end, whether you have chosen law as a career or simply as a temporary pursuit, think of it as a license to be curious. We will continue to support you and share your stories. 4
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IN THIS EDITION Briefing Babeș-Bolyai Law School of Cluj-Napoca: third place at the European Human Rights Moot Court Competition (p.8) National Moot Court Competition on Criminal Law ‘Traian Pop’ – held by our local partners, ELSA Cluj-Napoca (p.16) Opportunities for law students: what’s next (p.20)
Domestic Focus Balázs v Hungary. The recognition of institutional racism in anti-Roma violence cases (p.24) English Security Interests and European Financial Collateral: An Empirical Comparison (p.27) The Norwegian Model. An indicative of the National Oil Companies’ successful performance? (p.30) Corruption – infringement in the Criminal Law or national phenomenon? (p.34) Will Ethnic Segregation in Bosnia and Herzegovina’s Education come to an end? (p.38) Limiting the Power of Politics: The Landmark Judgment of the Polish Constitutional Tribunal (p.43) The special explanatory clauses - the right to private life (p.48) Actio libera in causa and criminal liability (p.52)
Reﬂections In an era of intense globalisation, are states becoming obsolete and losing their power and sovereign control? (p.58) Sovereignty and Intervention under the Constitutive Act of the African Union (p.64) Emergency Arbitration under ICC and SCC Rules: a comparative study (p.69) Guest: The phenomenon of cross-border healthcare: a key challenge for pharmaceutical practice (p.74) Guest: Anti-Terror Law in the Philippines: A Long Shot Approach (p.79)
International Focus The influence of Human Rights Violations on the Extradition Proceedings (p.86) Applicable law for direct and indirect damage in cross-border motor vehicle accidents (p.90) Single market of EU: Keck or not Keck? This is the question (p.94) Prisoners’ right to vote under EU law (p.98)
Professional Spotlight Interview: Monika Prusinowska (p.104) Interview: Ryosuke Shimazu (p.109)
Question of the Issue QoI: What qualities do you think a good lawyer should have? (p.116)
Devil's Advocate Should a claim for disgorgement of profits be allowed under Article 74 of the United Nations Convention on Contracts for the International Sale of Goods (CISG)? (p.122) 5
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BRIEFING Babes-Bolyai Law School of Cluj-Napoca: third place at the European Human Rights Moot Court Competition
A team of three third year law students from the Babeș-Bolyai Law
School of Cluj-Napoca has participated in the European Human Rights Moot Court Competition held February 15-18 at the European Court of Human Rights in Strasbourg. With a lot of hard work and dedication, Marina Fortuna, Alexandros Bakos, and Sabrina Matei made it to the final and won the third place. The Lawyr.it team contacted them and they accepted our kind invitation to share their unique experience with us. We also had the pleasure to talk to their coordinating teachers, Miss Cristina Tomuleț and Professor Radu Chiriță, whose impressions can be read in the following article. Enjoy the read! Raluca-Andreea Trîncă-Găvan
The Lawyr.it team congratulates you on your performance. Participating and winning an award at an international competition implies hard work and dedication. We would be delighted if you could tell us about your experience at this contest. To start with, why Human Rights? Marina: Thank you very much. We are thrilled by the fact that our colleagues and professors were very responsive to the news of our success and expressed their sincere congratulations to all of us and we would like to thank them once again on this occasion.
Secondly, beyond the notoriety and attractiveness of such a concept lies a much more profound analysis. It is an analysis which must be made in order to find not only a solution to a conflict between state and individual, but likewise to a conflict between politics and standards of human rights which must be upheld. It even delves into questions of applied ethics (i.e. – the question of in vitro fertilization or the right to free speech as opposed to the efficient administration of justice). Additionally, I think that no single case resembles another. There is something novel, no matter how small, with every new judicial decision of the Court. That’s what constitutes its main challenge. There is no predetermined solution. And, as a student, I think that the field of human rights is one of the most important ones for the development of judicial reasoning, because of its constantly novel challenges.
Why human rights? Because it is a sensitive subject, it is wearisome, it is difficult in some aspects, it requires tenacity and commitment, and as the words speak for themselves: it is human, it is about human and for human. Despite the fact that I am a law student, in fact the ‘rights’ aspect interested me less in this regard. At least, that’s how things As for the experience, although the academic aswere at the beginning. pect of it was challenging and rewarding, there Alexandros: First of all, thank you for your words was something more important that left me with a feeling of optimism. The people I have met were and thank you for this opportunity!
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people who really believed in the evolution and application of this field. Against the backdrop of contemporary geopolitical problems, which could put this field under scrutiny, people acted as if this was only an obstacle which can be overcome and, thus, continue with the evolution of European society, in a parallel line with that of the human rights field. Sabrina: Thank you very much! The field of Human Rights has been an area of interest for me after studying the European Convention on Human Rights (the ECHR) in the second year of my academic studies. What draws me the most to this particular branch of law is its originality as compared to the other domestic legal areas. The system of the Convention is a compact one, being engulfed in the bigger system of International Law. However, the ECHR extends its protective shield throughout the Member States of the Council of Europe and accomplishes its mission with the aid of the European Court for Human Rights (the ECtHR). This means the system of the Convention directly concerns the domestic law of each Member State, as the ECHR is directly applicable and the Courtâ€™s decisions regarding violations of rights and freedoms are compulsory for the States. All these features have made me perceive the field of Human Rights as a dynamic, enthralling and challenging one.
to participate in a moot and why I chose particularly the Human Rights MCC. Alexandros: I think that one of the most rewarding experiences for a student, not only academic-wise, but also from a social and psychological point of view, is the participation in such competitions. It is a great exercise for a future practitioner, as well as an opportunity to evolve as a person. It gives insight into what kind of work ethic is needed in the field of law and it changes the perspective of a student, mostly prepared through theoretical work. Thatâ€™s what determined me to participate in such a competition. Sabrina: The challenge. I had not been acquainted with this HRMCC before learning about it from my team colleagues and our coach. At first, I became enthusiastic about participating after looking into the competition, but I wanted to keep my mind devoid of emotions when making the final decision. It was an important process of analysis for me because I knew that if I took this opportunity it would mean hard work and a great deal of prioritizing while juggling with my academic studies. I was driven by the subject matter, I liked the perspective of us being selected for the Oral Round in Strasbourg and I was not able to refuse the valuable, irreplaceable experience, regardless of what the result would have been.
Lawyr.it: It is said that the only place where Lawyr.it: What drove you to participate in the success comes before work is in the dictionary. Human Rights MCC? Could you tell us how you prepared for this conMarina: I was driven by the inspiration and ex- test, from the very start until the last round? citement to do something beyond the typical Marina: First and foremost, after having received schoolwork of a student, something that would the case, we have explored it and dug in the minor shift the mundane schedule and most importantdetails, trying to clarify both the factual aspects, ly, something that could change certain aspects of as well as the legal questions it posed. It took quite myself, as a prospective professional in the field some time, because there were things that seemed of law, as well as a human being. I believe this anunclear even after the seventh reading. Next, we swer encompassed both the reasons why I wanted
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BRIEFING gathered to share our views upon the case and had a few spicy debates regarding the way the case should be approached. When we finally outlined our strategy, we made two memorials: one for the Applicant, one for the Respondent, and finally, after we were through with our winter exams, we started to prepare for the oral rounds. As regards to this preparation, we would meet and speak in front of our coach or use the empty rooms in our faculty and the lectern that our professors (unfortunately) use very rarely, which we found actually very helpful for our rehearsals. Alexandros: Oddly, it involves two very different stages of preparation. Firstly, there is the part when the written submissions are prepared. For this, research must be made – reading case-law, treaties, articles and everything which could provide relevant information - the case must be analysed and known very-well. Usually, this is the easier part of the two, where, through constant and sustained work, the written submissions should take the form imagined at the beginning. Secondly, there is the preparation for the oral proceedings part, if the team qualifies for it, which is much more difficult, at least from my point of view. Only then you notice aspects of the case that hadn’t been noticed before. You might even come to a point where your perception about the case takes a 180 degrees turn. Sometimes, it may get frustrating and you might think that the work you have done so far was in vain. However, after a while, you do clear your mind, you get a deeper understanding of the facts and you sort out the aspects of the oral proceedings – working on your speech, on your presentation, on your posture, on everything which could play a role in the jury awarding you and your team more points. It is, at the same time, a point where teamwork plays a large part. Juries within Moot Court Competitions tend to appreci16 10
ate proper teamwork and even insist on it. And, in the end, right before pleading, you get nervous and start thinking about it and how to control it. But, in the end, you manage to clear your emotions from your head and start realizing how rewarding the experience actually is. Sabrina: For a high-level competition I believe the key is an appropriate strategy. And thanks to our coach, Ms. Cristina Tomuleţ, ours was a successful one. This competition is divided into two phases: the Written Round and the Oral Round. Any team studying law in a European University may submit written conclusions regarding a specific case that is given by the organising committee. The case revolves around the Convention and the teams have to identify possible violations of human rights (for the Applicant submission) and to counterargument these alleged violations (for the Respondent Government’s submission). We started preparing for the Written Phase in October and our first step was reading the case over and over until we could thoroughly grasp the facts. The second step was to identify which of the Articles of the ECHR applied to the case. We did this by meeting and by discussing ideas. Afterwards, there was the research stage. We read as much as we could on the subject, namely environmental matters in the case-law of the Court. It was a difficult task to set the next steps of our strategy as the Convention does not provide the right to a healthy environment, meaning we had to think out of the box, to study case-law and to understand how the Court applies the Convention in this area. We also sent Clarification Questions to the author of the case. Next, we divided our work and set the next steps: we had to write the two submissions having the
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same general structure, that we established ourselves according to the Court’s specific procedure. We worked firstly on the Admissibility Section that is we debated in our submissions why the Court should/shouldn’t analyse the application. Then we worked on the Merits of the case, where we debated the violation of certain Articles of the ECHR (Articles 6 par. 1, 8, 9, 13).
my determination a few days before our flight to change a substantial part of my 17-minutes speech, which I had to learn all over again. As to our experience in Strasbourg, my first speech was hte most challenging because I was really stressed about the judge’s questions, as this was the most unexpected part of the oral presentation.
Alexandros: Striking a fair balance between the We were informed that we had qualified for the work done for preparing for the competition, the Oral Round in January 2016. We started preparing work needed for your academic field and the time for the next phase. This time, our work was even one spends doing leisure activity. harder. The oral round entails not only knowledge Sabrina: The main challenges were mostly linked of the case, but of the Court’s case-law in general. to my lack of experience with International The skills required for pleading in front of an InMCCs. For me it was mainly the lack of time that ternational Court are more than knowing the arput me under pressure, as we had to deal with exguments by heart. We practised our public speakams while preparing for the Oral Round. In the ing skills, our knowledge of the Court’s protocol, first phase I could say that finding the appropriour adaptability skills under pressure and we had ate legal arguments was the biggest challenge. to mold our submissions into legal pleadings. Two The case was tricky so we had to pay attention to of the team members pleaded the Applicant’s part maintain coherence and cohesion of arguments. and two the Respondent’s part. But the real challenge for me was the Oral Round. Lawyr.it: What were the main challenges that Another thing that is quite important when pleadyou had to face? ing is the speed of reaction to your opponent’s Marina: The biggest challenge for me, prior to arguments. When pleading, we had to produce the oral rounds, was collecting my thoughts and arguments on the spot, to answer a great deal of 17 15 11
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BRIEFING questions from the jury while trying to finish the pleading in the time allocated, to pay attention to the opponent, to use effective non-verbal communication with the jury and the opponent, to adapt our pleading on the spot. All these were taken into account by the jury while assessing our performance. It was not only a test of human rights knowledge, but also an under-pressure test. The jury were very cutting when asking questions; they tried to trap us in order for us to make mistakes. We later found out at the end of each pleading that they did this on purpose. It was part of the game. But we learnt: from their feedback, from our feedback, from our coach’s feedback. We improved our performance each day. Lawyr.it: How about your future plans regarding
human rights? Do you consider a future career in human rights? Marina: My dream is to pursue a career in international law and I would love it if working in the field of human rights would be part of it. Alexandros: Yes, I certainly hope to get to have such a career. It goes hand-in-hand with international law and diplomacy, as regards my career objectives, considering that the human rights field is a sub-system of international law and that politics are deeply involved, as well. Sabrina: I would like to become a judge, so the career I chose does certainly involve thorough knowledge of human rights. I believe that domestic law needs the innovation brought by the ECtHR, as citizens need the protection of the
From left to right, Cristina Tomuleț (coach), Alexandros Bakos, Marina Fortuna and Sabrina Matei, representing Babeș-Bolyai University at Strasbourg. 16 12
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Convention to be put into action by national judges. They are the first enforcers of the Convention as a valuable instrument for safeguarding our fundamental rights and freedoms. Lawyr.it: You represent examples of successful students. Could you give some piece of advice for all the students who are interested in human rights? What should they do in order to succeed in this area of law? Marina: I encourage everyone to dream big and start small, step by step. Being in the field of human rights sounds fancy, but it is a challenging field, which requires much dedication. I think that this kind of commitment may be made and should be made by those who have a lot of enthusiasm and empathy, believe in a better world, believe in people, in their capacity for change, and finally yet importantly, are ready to fight quite the battle. If you are one of them, take chances and believe in your talent and your capacity to do a great job. What I have also learned during this experience is that we are offered a great education here, and that our minds work pretty much in the same way as the minds of people who study at some of the world’s most prestigious universities, or at least we have just the same tools at our disposal and we should use them wisely. As a last remark, I would like to leave a message to all the students out there: whatever you do, be it in the field of human rights or any other field of law, do not close the doors that open in front of you and invest in the relationships that you are gifted with along the way, as they are one’s most valuable possessions. Alexandros: Firstly, I think that it should be taken into consideration that luck played an important part in this success as well. We had caught some good days and we felt inspired in those days,
which were considerable aspects as well. Secondly, what I realized is that Romanian students are very well-prepared, not only from the point of view of having large quantities of information, but ability-wise as well. They are taught how to think about the law and a lot of them do not see themselves for who they are. I think that the only piece of advice I could give them is just to go for such experiences. They have all the tools needed to succeed. Sabrina: To dare. To step out of their comfort zone. To try and fail. To do it again. Success is not a finish line. When deciding to participate, my incentive was not success. It was the question: ‘Can I do it?’ I believe that if we only do things in the hope of being successful, we risk disappointment and frustration. A passionate person will always be successful. Because when you do what you love, it’s not the result that drives you to keep working. Quite the contrary. Failure is sometimes the better incentive. I’ve learnt success often comes to you when you don’t expect it. Probabilistically, we sometimes succeed and sometimes fail, due to a multitude of factors. So, we should keep working until success finds us. And when it does, we should just keep working. Lawyr.it: How was the experience of coordinating a student team at such an important contest? Cristina Tomuleț: It was challenging and rewarding. We began our work by meeting and discussing possible approaches to the case. During the next phase, after lots of research, the team members wrote the two submissions – one for the Government and one for the applicants. After sending the two submissions, we almost forgot about the contest because we did not expect to qualify for the final oral round. When we found out the good news, we kept asking ourselves if the organizers hadn’t made a mistake. Before going to Stras17 15 13
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BRIEFING bourg, we started preparing for the oral round. I listened to the oral pleadings of the team members and made different suggestions with the aim of improving their public speaking abilities. The most important thing is that we had a lot of fun during the entire experience.
I was very impressed by the fact that they prepared a lot on their own for the competition, not needing me to constantly check their progress. Their initiative and attitude throughout this process proved that they were genuinely interested in this competition.
We left for Strasbourg not having a clue about what was going to happen there, but we embraced the adventure. The team had one debate match per day and I enjoyed watching them and writing down every positive or negative detail. After every match, we would go back to the hotel and discuss our strategies for the next day.
Lawyr.it: How would you raise the students’ interest in human rights? Cristina Tomuleț: I think students’ interest in human rights comes naturally, given the fact that this field is primarily concerned with the well-being of persons and cannot be approached from a purely legal point of view. During seminars, I often tell the stories behind various judgments of the European Court of Human Rights. I think hearing these stories makes students understand that law is real and can impact lives, both positively and negatively. The field of human rights is special because it often disregards law for the sake of human beings and this appeals to most students.
Advancing to the Quarter Finals and to the Semi Finals took us by surprise because we felt far more inexperienced than the other teams. One thing that we learned after our stay in Strasbourg is that idealising students from other European universities is wrong. Another important thing that I personally learned is that great things happen when you least expect and prepare for them. On these Lawyr.it: In your opinion, which is the cause of lines, I believe the main reason for our success this high interest for human rights among stuwas the fact that we were not obsessed with windents? ning or rankings. Radu Chiriță: I believe that the high interest of the Lawyr.it: How did you notice the interest in hustudents comes as a result of the fact that this field man rights of the three students who represented is more concrete for a student than for example BBU Law School? the field of administrative law. It is easier to imCristina Tomuleț: First of all, the initiative for agine and to mentally juggle with notions like the participating in this competition was not mine. freedom of speech in the TV commercials, rather Marina Fortuna approached me last summer and than with the suspension of the execution of a tax asked me if I was willing to help her and Alex- debt. This is a false imagine however, as in the andros Bakos to prepare for the competition. I professional life the level of excitement of the law agreed and searched for another team member. I branches becomes equal. remembered Sabrina Matei from my workshops Lawyr.it: How does professor Chiriță see a good and asked her to join us. When we started workstudent? ing, I noticed that all three were really passionate about human rights and willing to give their best. Radu Chiriță: Certainly, a good student is not one
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with just the capacity of reproducing the lessons learnt as accurately as possible. Many times, the best professionals are not really the students who had the highest grades in schol. A good student is, in my opinion, one who succeeds in learning three things. Firstly, to apprehend not really the rules of law, but the principles that lie behind them and the functioning of a legal system. Secondly, one should have the creative capacity to imagine legal solutions for new problems. Thirdly, he is the one who manages to develop a sufficiently critic spirit and a curiosity-driven intelligence in order to get to the point where he questions everything and everyone, even the professor. What would you advice those that are pursuing a career in human rights?
Prof. Radu Chiriță
Radu Chiriță: I believe that everyone in the field of law pursues a career in human rights, because our role, as actors of the legal system and/or judicial system is to ensure the protection of the human rights for everybody. The lawyers and the judges have shown up when human rights have appeared, up until that point the world did fine without them. If someone wants to pursue a career only in the matter of human rights protection, then my advice would be to never forget the reason for which these are a part of the European civilisation, because the easiest thing is to use the law against justice. By Raluca-Andreea Trîncă-Găvan
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BRIEFING National Opportunities Moot for Court lawCompetition students: what's on Criminal next Law ‘Traian Pop’ – held by our local partners, ELSA Cluj-Napoca Our partners at ELSA Cluj-Napoca held their now annual National Moot Court Competition on Criminal Law, which took place between April 23 and 24 at the Cluj Court of Appeal. It was a highly expected event that brought together 12 teams of students from different Cătălin Sabău cities all around the country, such as Craiova, Timișoara, Sibiu, Bucharest and last but not least, their own Cluj-Napoca. The jury was formed of three different specialities of law. Judge Mihai Ghica, in his first appearance at this event, said after the first few rounds: ‘I was really impressed to see that all of them came really prepared, although there were some slight differences, but in the end that is the nature of a competition. Overall, I got a really good impression after these first few rounds’. The other two are wellknown among law students in Cluj-Napoca, both being teachers at Babeș-Bolyai University, Faculty of Law. The first one of them is prosecutor Rareș Ciaușu who works at DIICOT (Directorate for Investigating Organised Crime and Terrorism) and the other being lawyer Sergiu Bogdan who is the founding partner of the law firm, ‘Sergiu Bogdan & Asociații’. Sergiu Bogdan and Rareș Ciaușu are not in this state for the first time, both being part of the jury last year as well.
the one that wrote the cases with which the teams had to work both for qualification, but also in the final. About coming back next year, Sergiu Bogdan had this to say: ‘We always said that if this were to be a successful event, which it is, we would make room in our budget every year. In other words, for us this is a long-term project. This is just the start of a long and fruitful collaboration which will definitely take place next year as well.’ The qualification and sorting process was a long and difficult one. There were 60+ teams that were interested in the event and 30 that actually sent their written pleas, with Sergiu Bogdan saying that ‘it was a very nice surprise to see that there were 60 something teams that were interested in this event and from those 60, 30 to actually write something and research their info. That is a beautiful sight to see.’ So it was understandable to see that for the first time, there were so many teams, 12, both the organisational team and Mr. Bogdan having a lot of work sorting them out.
The format of the competition was a bit changed from the usual Moot Court Competitions. The organisers went with a 20 minutes plea from the plaintiffs, followed by another 20 minutes plea from the defendants. Afterwards, those were followed by a 10 minutes response from the plaintiffs and another 10 minutes response from the defendants. All this time, the jury could ask questions and enquire further about the case to quiz the contestants. The first day, the proceedings began at 9:30 with an opening speech from Mr. Mister Sergiu Bogdan was also the main sponsor Bogdan with the actual debates starting not long of this event, being the only financial sponsor and after. The organisational team made sure that after 16 16
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every round there was a 10-minutes coffee break for the contestants, jury and for the public who attended. After three rounds, the jury and the contestants took a lunch-break where we managed to ask the jury a few questions. Mr. Ciaușu was very impressed about how the pleas did so far in comparison to the ones in the past years. ‘I believe that the interest in the contest has risen and so did the pleas, which is a good thing. And I expect for them to keep on rising, both the interest and the quality of it’. In comparison with the actual pleas in the courtrooms, all three of them highly praised the ones heard so far in the contest, Mr. Ghica saying that ‘Their pleas are better overall than the average ones we hear day by day. But we must understand that a lawyer who is pleading in front of a jury has more than one case, sometimes even ten or more in a fiveday spawn. All in all, the level at which the pleas
were at was a very-high one’. About the contestants, Mr. Ciaușu had to say only inspiring things, him having great memories about the past editions. ‘Every one of them wants to be prepared for what is coming in the future years. Those being the ones that want a career in the juridical system, which requires an active participation in courtroom, not so much being able to write documents. A good and handy exercise for any law student I would say’. Asking them if they believe that this kind of events are beneficial only for the students, and not for them, they all strongly affirmed that they also have gains from it. Mr. Bogdan liked to emphasise on the fact that in this branch it is very easy to get stuck in old conceptions, but it is good to hear new ones, in order to keep up. ‘Certainly it helps us too. Because sometimes you already have
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BRIEFING a well stuck perception about a thing, that being how reasoning works, but you sometimes hear new points of view and fresh opinions which raise questions and makes you wonder. That is because they make these assumptions from nothing and start their pleas from scratch. Without a doubt it is beneficial for us too, that is why with great pleasure I always make time for this event’.
posed of Nicolae Irina & Marian Ariadna from Bucharest, the plaintiffs and Dudaș Celia & Matache Alexandru from Cluj-Napoca, the defendants.
After all was done for the day, the organisational team made sure the other contestants were in for a treat as ELSA Cluj-Napoca held the annual ‘Balul Juriștilor’, a galla in which the best members were After coming from the lunch-break, another three rewarded for their activity. That gave the contestdebates were held until around 19:00. Afterwards, ants a chance to have fun and relax after a hard the jury went back to deliberate and came back and long day. with the results about 15 minutes later. The teams The next day, the proceedings began as early as that were to reach the Sunday final were com10:00. The contestants were eager to begin and so
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was the jury. The courtroom was filled with both family and friends of the teams, but also with neutral public that came only for the beauty of it. The final debate lasted nearly two hours, almost one hour over the program because the arguments were so intense and well-constructed. The jury and the last four had a very intriguing discussion on the case, but in the end there had to be only two. After almost two hours, the jury retreated in the chambers to deliberate. They came back after a while, holding a list with the winners. Mr. Bogdan, the main sponsor and member of the jury had to say that every contestant deserved to be there and this competition showed that they are the best 12 teams in the country. They also needed to mention that the decision was really hard to make, given the absolute incredible performance from all of them.
definitely. While my participation would be beneficial for both parts, why not?’. Daiana Avășan, the coordinator of this event, was very excited about how the contest turned out. ‘From my point of view, the event was very successful, the great feedback we received from the jury, the contestants and even the public standing as proof for that. If we are talking about the next year’s edition, I believe we should reconsider the structure of it, given that on Saturday there were six debates, each of one hour. That was really tiring for the jury, as well for the contestants and even the attendance. The idea of debates being held at the same time is something we are looking into for next year.’ By Cătălin Sabău
The winners were Dudaș Celia and Matache Alexandru from Cluj-Napoca, with Nicolae Irina and Marian Ariadna from Bucharest coming just short, in the 2nd place. The judges also gave out a third place for the teams that played in the first day. The pair that won the 3rd place was formed of Szanto-Petria Bianca and Sîntimbrean Roxana from Cluj-Napoca. They each were awarded prizes in money, but the jury had to congratulate Lucaciu Diana also, who took home the ‘Best Advocate’ prize, given exclusively by Judge Mihai Ghica. The National Moot Court Competition on Criminal Law ‘Traian Pop’ came to a conclusion. Every party had only good things to say about it, the jury being very pleased by how it turned out, every one of them saying that they will return next year if they were asked to, Mr. Ghica saying ‘Yes,
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BRIEFING Opportunities for law students: what's next June June 8, 2016: Russian speaking internship in NGO skills
its sources and subjects, and questions of jurisdiction and immunities, state responsibility and the responsibility of international organisations will also be analysed. Graduate students, academics, professionals working in international sectors, and others who might be interested in the topic are invited to apply. The participation fee is €750, including course materials and housing, or €550 without accommodation.
The European Human Rights Advocacy Centre (EHRAC) is inviting Russian-speaking applicants to apply for a four-month internship placement at its headquarters, at the Middlesex University. Interns will be given substantive and administrative tasks related to June 25, 2016: EU Law and Integration SumEHRAC’s work as an NGO. Postgraduate students mer Academy and recent graduates are invited to apply by June 8, 2016, by sending a CV and a cover letter to ehrac@ The UBT Summer academy on European law and integration, which will take place July 6 – 14, 2016, mdx.ac.uk. aims to offer participants essential information on inJune 20, 2016: Convention on Refugees in stitutional and substantive of European Union law, as Central and Eastern Europe (1912-2001): well as its links with the international law, specifically Call for Papers referring to European integration. Bachelor and MasThe 2016 Annual Convention of the Leibniz Gradu- ter students specialised in Law, European Integration, ate School will be held at Marburg, Germany on De- Public Administration, Political Science and other cember 8-9, 2016. It offers the opportunity to discuss Social Science are invited to apply by June 25, 2016. the history of refugees in Eastern Europe, as well as June 30, 2016: UNICEF Internship Prothe way the knowledge on refugees has influenced gramme the interaction with host societies. PhD students and Post-doctoral scholars are encouraged to ap- UNICEF is offering an internship programme in ply, by submitting an abstract of no more than 350 various areas of its mandate, in the USA, for the words by June 20, 2016, as well as a one-page-CV to year 2016. The programme will last between six and email@example.com and victoria.harms@ sixteen weeks, but it can be extended for up to six herder-institut.de. Papers should focus on topics re- months if needed. Masters or undergraduate students lated to the perception, integration, and adaptation of that have completed at least two years of their studies, professional, scholarly, scientific, artistic and cultural with excellent academic records and good knowledge of UNICEF’s working languages are invited to apply. knowledge and skills. Past professional experience will be taken into acJune 20, 2016: Public International Law Sum- count. Applications are open online by June 30, 2016. mer Course June 30, 2016: Vienna Model United Nations The Faculty of Law, Economics and Governance of Utrecht University organises a Public International The Vienna Model United Nations will take place July Law Summer Course, which will take place in the 31 – August 4, 2016, at the UN Office of Vienna. This Utrecht city campus, The Netherlands July 11-15, year’s topics are ‘Human Rights and Private Military 2016. The course will analyse the role of international Companies’, ‘Nuclear Terrorism’, ‘Genetic Manipulalaw in responding to global challenges, such as the tion and Gene Therapy’, ‘Combating Human Traffickones in Ukraine, Syria, Iraq and climate change nego- ing’, ‘The Global Employment Crisis’. Interested partiations. The nature and function of international law, ticipants are invited to apply by June 30, 2016 (if they
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don’t need a visa). The participation fee is € 190.
June 30, 2016: Deadline to submit abstracts UN Food and Agriculture Organisation Infor the The 3rd Women in War and at War ternship Conference The Food and Agriculture Organisation of the United The third Women in War and at War Conference, Nations (FAO) is offering a paid internship scheme, organised by The Open University Law School, The either within its Headquarters or in its decentralised University of Warwick and Aberystwyth University offices worldwide. Recent graduates or students who will be held on September 15-16 at The Open Univer- have completed at least two years of undergraduate sity, Milton Keynes. studies in a field relevant to the work of FAO are invited to apply. Interns will receive a monthly stipend up Abstracts of a maximum of 250 words should be sub- to the amount of US $700. A working knowledge of mitted by June 30, 2016 to womeninatwar@gmail. English, French or Spanish is required and the knowlcom. Authors of selected abstracts will be informed edge of or Arabic, Chinese or Russian, is considered by July 25, 2016. Conference registration will open on an asset. The selection process is open throughout the July 25, 2016. year and the assignment usually ranges from three months to a maximum period of six months. July July 1, 2016: Bucharest Summer University The Bucharest University of Economic Studies, together with its partners, is organising the 12th edition of the Bucharest Summer University. The courses will take place between the August 14-28, 2016 and the summer experience will include a weekend of visiting and sightseeing through the country. This year’s topic is ‘Public Value, Politics and Public Management in the European Union’. Interested participants can apply for a full scholarship by July 1, 2016, or a partial or total payment (€ 290 and 590, respectively) by July 12, 2016.
Internship at the United Nations Office on Drugs and Crime
The United Nations Office on Drugs and Crime selects unpaid interns on an ad hoc basis. The goal of the Programme is to offer students from different academic backgrounds a practical experience through work assignments within the international environment of the UN. In order to apply, students must be enrolled in a graduate or postgraduate university and be available for a minimum of two months. Applicants must also be fluent in at least one of the working languages of the United Nations. The internship will July 31, 2016: International Jacques Leroy take place in Vienna. Prize: Business and Human Rights Internships at the Organisation for SecuThe Union Internationale des Avocats organises the rity and Cooperation in Europe 7th International Jacques Leroy Prize – Business and Human Rights, which focuses, this year, on, the im- The OSCE is offering unpaid internships from one to pacts of climate change on Human Rights and on the six months to young people interested in working in solutions companies offer. Law students under 30 the organisation’s sphere of interest. Interns can work are encouraged to participate, by submitting a writ- in one of their offices in Viena, Warsaw, Prague or the ten entry in English, French or Spanish on the topic Hague, as well as with the OSCE’s missions in Alba‘Impacts of climate change on Human Rights: what nia, Armenia, Bosnia & Herzegovina, Croatia, Kosolutions are the companies offering?’. Papers should sovo, Serbia, Montenegro, Ukraine. Candidates must be sent to UIA, 25 rue du Jour, 75001 Paris-France or be in their last year of studies, or fresh graduates, and by mail: firstname.lastname@example.org by July 31, 2016. The must speak English fluently. The age limit is 30. winner will be rewarded with free registration for More opportunities can be found on www.lawyr.it, in the 2016 Budapest – Hungary Congress, a cash prize the Opportunities rubric. of € 1,000 and a year’s free membership in the UIA. By Georgiana Caramihai
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DOMESTIC FOCUS Balázs v Hungary. The recognition of institutional racism in anti-Roma violence cases
In an earlier article, I have
argued that there are two main problems with the current standards of identifying and treating hate crimes by legal means in Hungary. The first is the tremendous extent of institutional racism and the lack of professional preparedness of the authorities Emma Várnagy compared to international standards. The second problem is part of the corresponding section in the Criminal Code, which allows for a problematic interpretation, (Várnagy, 2016) by allowing prosecution and courts to use minority protective measures precisely against these marginalized groups. I have dealt with this problem in the aforementioned article and here I will discuss a recent case of the European Court of Human Rights (hereinafter ECtHR or the Court) against Hungary, which concerns procedural issues in detecting and prosecuting hate crimes. The ruling in ECtHR, Balázs v Hungary, 2015 (Application no. 15529/12) was delivered in October 2015 and finalised in March 2016.
In what follows, I will lay out the facts of the case, introduce some of the most important factors from the Court’s case-law and examine how they are applied in the present case. In the second part I will look at a third party intervener, European Roma Rights Centre’s proposals and critically analyse the judgment in light of ERRC’s recommendations. As a conclusion, I will offer my view on a possible way forward, taking into account the vast moral debate that is partially outlined in the article. 24
The facts of the case stem from a grapple between a young man and three others on the streets of Szeged, in 2011. The three were insulting the applicant on racial grounds, when a fourth man, claiming to be a police officer (in fact a penitentiary officer) arrived and, upon the applicant’s questions regarding the officer’s use of vulgar language, started beating the applicant. The incident was followed by a criminal complaint, asking the prosecution to initiate the investigation for the offence of ‘violence against a member of the community’. Considering the evidence of openly racist comments posted on the perpetrator’s Facebook profile, where he explicitly stated that he ‘had been kicking a gypsy in the head’ the day before. This process was eventually discontinued due to lack of evidence to establish beyond doubt the causal link between the racial hatred and the fight, the latter of which the perpetrator was convicted for disorderly conduct. (The section on hate crimes and the section on disorderly conduct in the Hungarian Penal Code are apparently worded in the same way, the latter not making any reference to the victim belonging to a protected group. The maximum punishment for disorderly conduct as a misdemeanor is up to one year imprisonment, whereas violence against a member of the community is punished as a felony by imprisonment not exceeding three years.) Subsequently the applicant filed a complaint to the ECtHR contending that the Hungarian authorities had failed in their obligation to conduct an effective investigation into the racist attack which he had suffered. He relied on Article 3 (prohibition of torture) and of the Convention (prohibition of discrimination).
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role is to rule on the contracting states’ responBefore exploring why this specific judgment is of sibility under the Convention, still referred to a a dual importance, let us devote a few words to high standard of proof to acknowledge the racial explain some generalities of the Court’s Articles 3 motivation(Rubio-Marín, Möschel, 2015:889). and 14 case-law. Prohibition of torture is the only absolute right in the Convention, meaning that Therefore, it remains a question of how findings there is no possible situation in which a deroga- of substantial violations will come about in Artion from this can be allowed. However, the Court ticle 3 and 14 cases. However, the Court’s ruling has held from the beginning that ill-treatment in the case of Balázs v Hungary is important on must attain a minimum level of severity to fall the one hand, because it realises the difficulty of within the scope of Article 3. As reiterated among marginalised people seeking redress in situations the Court’s general principles on the applicabil- where the authorities are likely biased. On the ity of the article, this minimum severity is relative other hand, by stressing in the judgment the neby definition and it depends on the specific cir- cessity of a vigorous investigation into allegations cumstances of the case, with explicit reference to of racist violence against Roma and condemning the underlying intention or motivation. State par- the Hungarian authorities for their failure to do ties have an obligation to protect everyone within so is a big step from a national point of view. Altheir jurisdiction from ill-treatment, as well as to though massive assistance is likely to be necessary criminalise and effectively investigate allegations to perfect the situation, third party intervener of ill-treatment. The article on prohibition of proposals of the European Roma Rights Center discrimination, however, does not have an inde- (ERRC) seem to have been acknowledged by the pendent standing. In any case where discrimina- Court. This initiated a strong effect on both native conduct is involved, the article has to be read tional and international implementation of this in conjunction with another article, although the communication. application does not imply a substantive violation of that article. The leading authority on the The ERRC in its intervention urges the Court exprocedural aspects of Article 3 read in conjunc- plicitly to acknowledge the phenomenon of antition with Article 14 is EctHR, Nachova and Oth- Gypsyism, as defined and recognised by other ers v Bulgaria, 2004 (Application no. 43577/98). Council of Europe bodies. According to the EuThe Court held that any evidence of racist ver- ropean Commission against Racism and Intolerbal abuse is highly relevant to the question of ance, anti-Gypsyism is a ‘specific form of racism, whether unlawful, hatred-induced violence has an ideology founded on racial superiority, a form taken place. This statement was also reiterated in of dehumanization and institutional racism nurthe present judgment of Balázs. Treating racially tured by historical discrimination, which is exinduced violence on an equal footing with cases pressed, among others, by violence, hate speech, that have no racist overtones by failing to make exploitation, stigmatization and the most blatant distinctions where the situations are essentially kind of discrimination.’ (ECRI, 2011) This spedifferent is particularly destructive of fundamen- cific form of racism underlies both the very fact tal rights. (ECtHR, Balázs v Hungary, 2015, para of anti-Roma violent events and the breaches of 52, 61) However evident the above reasoning may equal treatment in the procedures that follow. seem, the ECtHR case-law on anti-Roma violence This latter phenomenon should also be explicitly has not made much doctrinal progress. In fact, the acknowledged as institutional racism, which, acGrand Chamber decision in Nachova and Others cording to The MacPherson Report represents v Bulgaria, 2004, while noticing that the Court’s ‘the collective failure of an organisation to provide 25
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DOMESTIC FOCUS an appropriate and professional service to people because of their color, culture, or ethnic origin’ (MacPherson Report, 1999). Due to this failure, Roma applicants face serious difficulties convincing the authorities ‘ beyond reasonable doubt’ about their rights being violated. Shifting the burden of proof was among Judge Bonello’s strategic propositions to improve the Court’s assessment of anti-Roma violence cases. This solution was set out in his strong dissenting opinion in Anguelova v Bulgaria, (Application no. 38371/97) a case similarly important in Article 2 and 3 jurisprudence as Nachova. Lessened burden of proof should be applied, at least, in cases where ‘a member of a disadvantaged minority group suffers harm in an environment where racial tensions are high’. (Möschel, 2012). The problem of compelling allegations of victims from vulnerable groups to pass such a high standard arises both at domestic and international levels. (ERRC, 2015, p.16). ECtHR acknowledges the heightened burden on vulnerable groups in interaction with public authorities. As a result, a facilitative measure was recognised in its recent case law by allowing the omission of private prosecution as a requirement of exhaustion of domestic remedies. This is an important step because finding otherwise would risk the applicants’ exposure to reprisals on behalf of the authorities. Moreover, it would also imply that the officials do not have a serious duty to duly investigate discriminative violence cases. (ERRC, 2015). Taking this idea one step further, the Court should consider whether a failure in carrying out an effective investigation in general was the result of institutional racism (ERRC, 2015). These are just some of the underlying facts, which show various instances of continuing discrimination against vulnerable groups even after violent attacks have actually taken place. It is extremely important to notice that violence itself is only a partial manifestation of deep rooted racial discrimination and negative attitudes towards Roma
amounting to anti-Gypsyism in Central-Eastern European countries. This fact is exactly what Judge Kjølbro overlooks in his dissent in the present judgment. He is right insofar the ‘ Convention cannot be interpreted as requiring the prosecutor to indict and press criminal charges against a person, but he seems to be blinded to the threats of institutional racism when demanding that the Court accepts the findings where the investigation performed at domestic level has been effective in the sense of gathering all the relevant evidence’.(Balázs v Hungary, p.24). It also arises from Kjølbro’s dissent that he differentiates ‘between violence against a person who is of Roma origin, and violence against a person because of the persons Roma origin’and urges his colleagues to recognize ‘ that the fact that a person has expressed views that may be interpreted as racist does not imply that everything the person does is racially motivated’ (Balázs v Hungary, p.25). These statements may give rise to massive scholarly debate over whether criminal law can be viewed as a viable instrument of combatting discrimination or on the validity of various theoretical standpoints, such as character theory (versus choice theory) or the offense principle (versus harm principle). Nevertheless, we need to realize that an ECtHR judgment, by the Court’s operational nature, is a powerful tool in calling out worrying tendencies among member states and issuing a desired direction towards remedying that tendency. In this regard, it is the Court’s moral obligation to condemn member states, even in issues which are political, just as it is states parties’ obligation to condemn harmful attitudes in the society, even if those might gain a popular momentum at certain times. By Emma Várnagy Central European University, Budapest
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English Security Interests and European Financial Collateral: An Empirical Comparison 1. Introduction
The importance of secu-
rity interests in the commercial world need not be understated. As Sir Roy Goode (2009) explains, enterprises live (and sometimes die) by credit. Security interests help reduce this credit risk and protect Kal Leung the priority of the securityholder over other creditors in the event of the debtor’s bankruptcy. I will argue that traditional security interests under English law such as the equitable charge, coupled with freedom of contract, are adequately flexible for the needs of the financial market. Nevertheless, I will argue that incorporation of financial collateral arrangements through the Financial Collateral Directive (FCD) 2002/47, allows English law to remain competitive and attractive to financial institutions. This article will first examine the current flexibility of traditional security interests under English law, and then briefly discuss the advantages offered by financial collateral arrangements.
2.1 The Pledge The pledge is the oldest form of security where the creditor takes possession of the debtor’s asset as security until payment of the debt. As powerful as the pledge once was, the limitations are apparent. A pledge cannot extend to purely intangible assets such as patents nor can a creditor use the asset whilst in his possession. A traditional pledge is further undesirable in that the secured asset is inaccessible by both the debtor and creditor without explicit agreement. From a macro perspective, this inability to deal with assets is a deadweight on market liquidity. These disadvantages are equally applicable for the contractual lien which functions in the strict sense the same as a pledge. 2.2 The Mortgage
2.Traditional Security Interests
The mortgage involves the transfer of ownership from the debtor to the creditor where the asset would be reconveyed upon payment of debt obligations. First and foremost, the non-possessory nature of the mortgage allows the security interest to be extended to both tangible and intangible assets overcoming the difficulty faced by the pledge. Furthermore, English courts of equity readily recognise the assignments of debt and other contractual rights which allows for the transferability of mortgages.
As explained by Millet LJ in Re Cosslett (EWHC, Re Cosslett Contractors Ltd, 1999), there are only four kinds of consensual security under English common law: the pledge, the contractual lien, the mortgage, and the equitable charge.
In the House of Lords decision of Kreglinger (UKHL, Kreglinger v New Patagonia Meat and Cold Storage Ltd, 1913), Lord Parker explained the flexible relationship of a mortgage with contract law: ‘There is now no rule in equity which precludes a 27
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DOMESTIC FOCUS mortgagee, whether the mortgage be made upon the occasion of a loan or otherwise, from stipulating for any collateral advantage, provided that such collateral advantage is not either unfair and unconscionable or… inconsistent with or repugnant to the contractual and equitable right to redeem.’
speaking traditional security interests) sufficient flexibility for financial institutions in their own right. The want of a substitution mechanism as seen in the pledge and mortgage is addressed in the concept of the floating charge itself. Until the charge is crystallised, the debtor has the necessary freedom to use the asset(s) for other purposes other than as a security granting mechanism.
Thus contracting parties may reasonably agree to whatever terms they so wish through the mort- The want of a margining mechanism can be adgage, in so far as it does not infringe upon the eq- dressed by shrewd contractual drafting with reuitable right of redemption. gards to the circumstances of automatic crystallisation. Because security interests become relevant A mortgage overcomes the right of use problem only upon the debtor’s insolvency, a floating faced by the pledge, because of its transferral of le- charge allows for the flexibility of margining until gal title. But, as a security interest in itself, it does its crystallisation. not accommodate flexible mechanisms such as margining or substitution. The issue of inferior priority is similarly answered in part by automatic crystallisation. A charge may 2.3 The Equitable Charge provide for automatic crystallization upon the occurrence of a pre-agreed event. For example, auEquitable charges may be fixed or floating. The tomatic crystallization occurs if the debtor comfloating charge, a ‘nineteenth century liberal crea- pany fails to pay a sum due, or allows its external tion’ (Wood, 2007, p. 260), allows a company to borrowing to exceed a certain amount - factors create a charge over a designated class of assets in which often indicate a debtor’s looming insolvenwhich the debtor has or will acquire an interest cy. Other problems of priority under insolvency in the future whilst retaining freedom to use the law arise equally under the financial collateral arasset(s). A fixed charge, on the other hand, attach- rangements and require a separate discussion ales to a specific asset, but does not allow trading or together. usage of the charged asset; its main advantage lies in its high priority upon the debtor’s insolvency Lastly, the requirement of floating charges to be under English law. registered under English law is not overly burdensome and serves policy purposes. It may be seen The ingenuity of the floating charge is that the as a deterrent against careless lending and as precreditor receives a security interest, yet the debtor vention against overextension of credit to a hopeis still left with the freedom to manage the charged less debtor. Registration of a charge in English assets until crystallisation. This paper believes can also be achieved cheaply and simply online that it is this feature, coupled with the large unfet- through Companies House for a fee of £10 per tered concept of freedom of contract in English charge as detailed on GOV.UK (2016). law, which allows the floating charge (and broadly 29
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3. Financial Collateral Arrangements
rangements. This codification of a financial collateral exception to the general in equal portions Whilst traditional securities are sufficiently ad- principle is commendable both for its utility for vantageous, English commercial law has rarely creditors and, on a macro level, for its confinebeen content with ‘mere sufficiency’. The float- ment of systemic risk. ing charge and the legal trust for example, were both creations of English law that have allowed 3.3 Right of Use for more efficient transactions. Financial collateral arrangements, under the European financial With regards to security financial collateral arcollateral regime, similarly allow for a more liq- rangements, the FCAR allows for a right of use uid and efficient market. They also increase credi- for the collateral taker. This is extremely useful tor confidence by virtue of its recognition of title for the purposes of refinancing. Whilst implied transfer collateral arrangements, and its valida- under title transfer collateral arrangements, the tion of close-out netting and introduction for se- new invention of right of use allows for enormous curity financial collateral arrangements for right flexibility for companies to shift capital and assets of use. Whilst financial institutions can function depending on their business needs. perfectly with traditional security interests, any legal jurisdiction(s) which allow for such arrange- 4. Conclusion ments with other things remaining constant are much more welcoming from the perspective of a For the reasons discussed, English law is perfinancier. fectly functional with the traditional securities of pledge, lien, mortgage and charge, but by offering 3.1 Elimination of re-characterisation risk additional flexibility to financial institutions, it is able to retain its competitive edge as a preferred The FCD, as transposed into English law as the legal system upon which global commercial Financial Collateral Arrangements Regulation transactions are based (Singapore Law Academy, (FCAR), notably eliminates the risk of re-charac- 2016) (Cuniberti, 2014, p. 459). terisation of title transfer collateral arrangements. Whilst Ho (2011) argues that the risk of re-char- I personally believe that the FCAR’s recognition acterisation in England of such arrangements has of title transfer arrangements and close-out netalways been low, the codification of such a posi- ting especially helps promote the intangible and tion is invaluable from a financier’s standpoint by indispensible element of investor trust, and for knowing that repurchase agreements and securi- such a reason, is more advantageous for any comties lending agreements will face minimum risk petitive financial system. of re-characterisation. By Kal Leung 3.2 Validation of Close-out Netting Final year, University College London On the occurrence of an enforcement event (i.e. an event of default), the FCAR offers legal protection of netting and set-offs ensuring that national rules of insolvency law do not override such ar-
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DOMESTIC FOCUS The Norwegian Model. An indicative of the National Oil Companies’ successful performance?
The main focus of this
article orbits around the question whether the National Oil Companies (NOCs) are beset by problems when not using the Norwegian Model in governing the hydrocarbon resources? Could the Norwegian model be enforced Lavinia-Petronela Tănase in other countries? What is the cause-effect relation between the non-implementation of such a separation-of-functions model and the inherent problems that NOCs are faced with. Main characteristics of the Norwergian Model and its application in the Kingdom of Norway Norway represents one of the most effective nations worldwide regarding petroleum resources management. This important petroleum producer decided in the early 1970s, that the most successful scheme for highly efficient oil and gas-related activities shall be the clearly defined division of oil sector functions. Norway displayed strong sympathy for the instauration of the Ministry of Petroleum and Energy, the Norwegian Petroleum Directorate (NPD) and the National Oil Company, called Statoil. As a rule, the Ministry shall govern the petroleum legislation and policy-making (e.g. award exploration and production licenses), while all technical and regulatory matters (e.g. gathering data on hydrocarbon activities, collecting fees from oil operators, advising the Ministry on technical matters) shall be coordinated by the NPD. Furthermore, all extensive commercial 30
operations both in Norway and abroad would be pursued by the National Oil Company. This model`s resounding success relies upon the highly stable political situation and performant bureaucracy of the state. Fundamentally, for implementing the separation of functions within the governance of the oil sector, the state needs to prove that it has developed a strong institutional capacity and a competitive political system (Thurber, 2010). Kingdom of Norway have stated that this governance model has been built upon their effective and efficient previous petroleum exploration and production experience, large investments in training the human capital into becoming flawless oil and gas professionals. This proactive attitude stands as an irrefutable proof that Norway has taken some very prominent steps in its becoming one of the world`s leading oil and gas producers. Its amazing, qualitative oil and gas discoveries in the early 1970s and its favourable position in the northern part of Europe have substantially contributed to this situation. Moreover, Thurber and Istad (2013) argue that there has been a sine qua non (indispensable) link between the separation of functions model and the conversion of Statoil into a truly efficient and well-structured NOC. In this way, Al-Kasim states that this Nordic country has focused on preserving control over its oil resources in order to counterbalance the ‘power and ambition of Statoil’. However, the state`s institutions and Statoil have worked together towards developing an economy based on oil activities. Hence, the Government Pension Fund Global emerged by collecting oil revenues and securing them for the entire population of Norway, not just for a small richer group (Leroen, 2012). Fur-
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thermore, the government allowed Statoil to take long-term approach towards technological development and its organisational culture, thus emphasising innovation instead of commercial gain. As a matter of fact, even the Natural Resource Charter (2014) endows the Norwegian model in its first precept, by clearly laying out that the natural resources should be managed in such a way as to primarily benefit the citizen `through an inclusive and comprehensive national strategy, legal framework and competent institutions`. Also, the sixth precept brings the idea to light that NOCs should develop their commercial activity upon well-established mandates. Variations in the application of the Norwegian Model in other parts of the world
1953. Brazil initiated the transition after carefully creating its human and institutional capacity (Thurber, 2010). The time factor seems crucial, since by the ANP`s establishment, Petrobras had already gained the state of a powerful world competitor. Also, by that moment, the country`s bureaucracy had developed into a stable one, being able to oversee the NOC`s activities and create the perfect environment for its focus on mainly commercial endeavours (Thurber, 2011). The objective of the separation of functions was to create a level playing field and determine Petrobras to become more commercial in its approach, following the long period of military ruling (1965 â€“ 1985) when the NOC exercised all the three functions. These days, however, Petrobras is no longer a successful example, as corruption, poor financial decisions, and huge amount of debts refrain it from maintaining its leading position among the world`s NOCs. Specifically, after the discovery of the so-called `pre-salt oilfields` (the oil lies under a two kilometres thick layer of salt, in the ocean), Petrobras embarked on what was the biggest corporate capital expenditure program in the world (Lahey, 2016).
Even though Norway has had a positive experience with the separation of functions regarding the governance of its oil and gas sector, it does not mean that this constitutes a precedent for all countries that endeavour to pursue this model. Practically, each country must be analysed according to its political, legal, and institutional specificities and also human capital development. To put it simpler, commercial activities are likely Lack of influence in Africa? to go wrong due to a lack of legislative and institutional stability (Rodrik, 2008). On the other edge point stand Nigeria and Algeria who have obviously failed in trying to reform A success in Latin America? their current systems and implement this model. Hence, Nigeria, a country of low institutional caThis model has been successfully implemented in pacity and high political competition, initiated the world by only a couple of oil producing coun- the formal separation of functions one year before tries, such as Norway and Brazil. Brazil, a country Norway, in 1971. Theoretically, the Department which once had high institutional capacity and of Petroleum Resources (DPR) exercised regulavibrant political competition, took the first step in tory responsibilities, while the Nigerian National applying the separation of functions model by cre- Oil Corporation (NNOC) undertook all commerating the Agencia Nacional do Petroleo, Gas Nat- cial activities in the oil sector. However, due to the ural e Biocombustiveis (ANP) (National Agency large political control by the country`s patrons, for Petroleum, Natural Gas and Biofuels) in 1997, the DPR was prevented from pursuing its powlong after the creation of its NOC, Petrobras, in ers correspondingly. The main purpose was for 31
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DOMESTIC FOCUS the NNOC to incapsulate all three functions, so the political domineers would not lose future personal gains secured through the contracting process (Heller, 2010). Unfortunately, Nigeria did not have the fertile soil for the implementation of such a strict model, since it did not bear a strong civil service at the beginning of the oil-related development. Also, it did not invest in training professionals throughout time (Nwokeji, 2007). Moreover, the personnel migration from the NNOC to the DPR enhanced the know-how transmission and the unrelinquishable dependance between them. Even though it has struggled for more than 50 years with reforming the governance of the hydrocarbon resources, Nigeria still has a long way to achieving performance through separation of functions. According to Thurber (2011), a similar situation existed in Algeria, which seemed to be willing to carry out the transition to the Norwegian model, but it was impeded primarily by the political actors who benefited from the existent system. In 2005, even after the creation of two governmental agencies, namely(National Agency for the Valorisation of Hydrocarbon Resources (ALNAFT) and The Authority for Regulation of Hydrocarbons (ARH), their roles remained for-
mal, without having any beneficial action on the National Oil Company`s SONATRACH`s commercial activity (Entelis, 1999). Total disregard in Kingdom of Saudi Arabia, Angola and Venezuela? On the other hand, there are countries that do not need to adopt the Norwegian model as their oil development process has only been marked by triumphs over the years. Angola and the Kingdom of Saudi Arabia (KSA) are the two participants in this category, two countries with low political competition and low institutional capacity, but very fruitful governance of hydrocaborns. Angola, even though steadily affected by corruption, has triggered economic growth and reliable return-revenue to the government through its multi-tasking agent â€“ SONANGOL â€“ which executes impeccably all three functions. Heller (2012) agrees that due to the Civil War that took place in the country from 1975-2002, Angola was led by a small tight-knit group of people who stimulated the flood of foreign investments in the country, in order to secure safe revenue return to the government. Consequently, one of the main
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perks of the NOC was the development of a new class of technocrats and skilled managers that led the company towards successful commercial operations. Similarly, KSA represents one of the most important examples, which proves that the lack of the Norwegian model`s application does not automatically imply poor oil governance. Saudi Arabia, largely known as the world`s most important oil producer, has a history completely differing from that of all the other statesâ€™ (Valerie, 2005). Saudi Aramco, the NOC, practically compresses all the three functions, with insignificant government control. As the managers of the NOC are closely related to the Al-Saud Royal Family and the relentless human resources exchanges between the Ministry of Petroleum and Saudi Aramco, it is impossible to make a clear distinction between their functions (Stevens, 2008). Basically, Saudi Aramco has captured all the prerogatives of other governmental institutions in governing the country`s hydrocarbon resources. The success lies within the rallying between the management of the NOC and the leadership of the country, while continuous investment in human capital and technology development is being pursued. This analysis of NOCs seems undeniably important as, nowadays, they have monopolised almost 73% of the world`s oil reserves, regardless of their global geographical position. Specifically in Venezuela`s case, we shall state that the NOC has encountered many difficulties due to the lack of powers` separation within the state. Thus, Petroleos de Venezuela (PDVSA), has failed to conduct thriving commercial operations â€“ as it is a state-controlled company that handles the petroleum policy on behalf of the president. The former ruler, Hugo Chavez, has taken control over the company, transforming it from a commercially managed company into its agent (Hults,
2007). Chavez`s reform to modify the constitution has put a lot of pressure on the company and lowered its performance as a production agent by 30%. Moreover, the fact that the Venezuelan government has focused primarily on using the NOC as means of funding and implementing the presidential initiatives, has determined a low level of overall performance. By contrast, Saudi Aramco has not encountered any obstacles in its becoming one of the largest oil and gas companies worlwide while not implementing the Norwegian model. However, unlike PDVSA, Saudi Aramco has been granted the liberty and autonomy to conduct its commercial activities, following the `western professional practices and a strong professional ethos` (Boscheck, 2008). Conclusion For a proper implementation of the Norwegian model, the state`s institutional capacity and political unrest have to be taken into account. As we have seen, many countries have tried and failed to adopt it, mainly due to their unwelcoming prerequisites. This model is highly recommended for underpinning the successful governance of a state`s hydrocarbon resources, but cannot be considered irreplaceable. Angola and Saudi Arabia, which have managed to maintain their leading positions in the world`s oil market without a separation of functions, stand as proof in this respect. Nevertheless, in countries like Venezuela, not only the lack of the Norwegian model has determined the disastrous performance of the NOC, but also the almost totalitarian system of governance of the state. Whereas in Brazil, the corruption and huge amount of debts transposed Petrobras from the world`s leading NOC into a sinking one. By Lavinia-Petronela TÄƒnase LLM Oil and Gas Law with Professional Skills University of Aberdeen, United Kingdom 33
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DOMESTIC FOCUS Corruption – infringement in the Criminal Law or national phenomenon?
In the European context,
as well as in the national one, corruption has always represented an antisocial, unethical, and illegal behaviour affecting the welfare of the society by favouring the interests of a limited number of individuals. Andreea Mădălina Arapu
As our democratic society aims towards an ideology based on liberty and progression, normality is highly associated with a fast growth of the living standards and the wellbeing of the community. Consequently, this leads to an accelerating desire for swift enrichment, gaining personal advantage and material assets. In this manner, what we define as ‘normality’ gains its significance through the necessity of possessing something. The sensible question which may arise is whether non-participation in the process of stopping corruption and our indifference make us co-authors or participants in crimes, or our endeavors to combat this phenomenon is a benefit to the whole society?
Corruption is not to be taken as a phenomenon which appeared in our present society, its beginnings coinciding with the formation of the concept of society, this behaviour being accepted as a cultural tradition. It is encountered in the smallest and most insignificant actions, such as giving a gift to a doctor, a teacher, a mayor, or any officer who has fulfilled its attributions properly, these ‘gifts’ being used as means of motivation, for facilitating the effectiveness of their work. This practice is not only linked with leadership, corruption being pervasive in small groups with private interests, the purpose being a common one: obtaining some advantages, be they material, juridical, political, through usage of illegal means such as: bribery, compulsion, blackmail, menace, leverage.
This antisocial behaviour is one of the most harming of them all; society needs protection from both the lawmaker, and from any public and private institution, which are active in our present society. It is not only the worth of the community or the integrity of the employees which are being prejudiced. Corruption has an effect on a deeper level of society’s credibility. It begins to decrease once corruption becomes a part of it and the natural balance is lost while individuals lose their idenThe Romanian Law, as well as the legal literature, tity. As a consequence, individuals are more likely defines some aspects of the phenomenon of corto form smaller groups with private interests. ruption as gaining or obtaining some advantage (usually a material one) by making use of a poCharacteristics and juridical practice sition of power, despite the rights of others. The cases of corruption can fall into the category of In specialised literature, we encounter the con‘natural infringements’, as Caesar Beccaria defines cept of petty corruption, or the action each citithem to be, since these infringements of the law zen takes in order to solve the issues which arise can be encountered in present day society, and between him and public or private employees, they can be severely punished (Bogdan, 2014, without affecting the wellbeing of the society. p.413). 34
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Similarly, there is also the term of grand corruption which consists in producing harm in the well-functioning of legislative, executive, juridical branches , but also in external affairs with other states, including major acts of corruption done by political employees with a higher function, such as: ministers, magistrates, dignitaries, and leaders of central and local public institutions (Bogdan, 2012, p.105).
In Romania, there have been several major acts of corruption, both in the political domain, as the files ‘Bribery at Cluj’(’Mită la Cluj’ for detalails, see www.gazetadecluj.ro), ‘ICA’( for detalails, see www.mediafax.ro), or ‘Aunt Tamara’ (‘Mătușa Tamara’ for detalails, see www.mediafax.ro), seem to demonstrate, as well as in the military one: ’The Motorola Business’ (‘Afacerea Motorola’from A different approach appears in the dissimila- 1990, ‘The Puma Business’ (‘Afacerea Puma’) from tion made between black corruption, corruption 1995, or the file ‘Tofan’ from 2000 (for detalails, which is condemned by all the society, grey cor- see ‘Quotation’ (Lupescu), 2015, p.1932-1933). ruption, infringements which are condemned by only one part of society, and white corruption or The file ‘The Suitcase’ (‘Valiza’) is a well-known acts of corruption which are partially tolerated. case of corruption in Romania, in which the own‘Quotation’ (Angheni,) 1992, p.111. er of a football team offered a sum of money to each team player of University of Cluj, in order to In spite of it being severely punished in Romanian win the game against the other team, CFR 1907 Criminal Law, this violation is frequently met in Cluj, as this would have led to having his footboth our today’s society and in the behaviour of ball team win the championship title. In spite of former societies. We are not facing a new phe- the fact that CFR team won that game and the nomenon because this is prevalent in most of suitcase containing the money did not reach its our institutions, as for example in the educational destination, the National Anti-Corruption Direcsystem, juridical system, politics, health system, torate’s prosecutors instituted legal proceedings and army This reality is demonstrated through against them, followed by the High Court of Casthe numerous accusations of corruption, but also sation and Justice’s decision to issue a three-year through the constant necessity of the lawmaker to sentence in prison for the infringement of bribery augment the means of punishment. and forgery. (Supreme Court of Romanian, criminal punishment, no.156/04.06.2013). The press plays a considerable role in both fighting against corruption and promoting this behaviour Although negative examples can continue, we can in society. Freedom of speech is a fundamental easily notice that elements of petty corruption, right, essential for a democratic society, but this as well as of grand corruption, are frequently encan be used as weapon in the process of disguis- countered in our society. This proves a slight deing and progressing with acts of corruption, by pendency of each person to solve problems conconcealing the actual happenings, and present- cerning their rights in an illegal manner, ignoring ing false deeds as being genuine, or by promot- rules and moral principles. ing corrupt political figures. For these reasons, the press should assume a significant place in fighting In the practice of the Courts, fighting against against corruption, as freedom of speech holds corruption should begin with defending the funthe same importance in society, as fighting against damental rights in a legal lawsuit. These are: (1) 35
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DOMESTIC FOCUS the presumption of innocence, (2) the right to a fair trial, (3) equality of arms, and (4) contradiction. Without these guarantees, all these files and lawsuits would represent only an instance where some corrupt individuals can escape without punishment, while others are encouraged to proceed. In this manner, we only return to the principles of the Inquisition: the denouncer pursues its own corrupt goals and the lawmakers represent just executors of a juridical ideology, in which the punished one comes to be ‘executed’, denunciation being sufficient, without the right to a fair trial. The right to a fair trial of the person convicted for corruption and measures to combat this phenomenon are equally important, because this right is definitely a fundamental one , representing ‘an ideal of genuine which respects the human rights’ (Renucci, 2009, 378).
current society, through which a citizen’s problem can be solved conveniently. Another way through which corruption can be fought against is the collaboration between states. The joint actions should consist in means through which there would exist the guarantee of certain rights and fair actions in the process of extradition or criminal inquiring of those implicated in corruption acts which would concern different states. Thus, by adopting general rules respected by people who occupy high functions in such states, they would be also respected at a national level due to those members’ seriousness and responsibility, citizens being more inclined to repress this criminal conduct. Consequently, both rules and obligations, would be unbiased for all the citizens, regardless of their rank or job title, aspects which would promote their safeness, hence, repression of criminal conduct.
Means of opposing the phenomenon of corruption The same principles and rules are to be applied on a national level, by setting up specialised instituFor combating and eliminating corruption, this tions which are subject to the same legal actions, phenomenon must be understood as a negative being capable of devotion and impartiality, their behaviour. The lawmaker should give an extensive sol purpose being to combat corruption, since definition of it, which needs to encompass all the they represent fundamental constitutional princicriminal activities that seemingly do not pertain ples and individual rights, which encourage the to this criminal conduct. curbing of this phenomenon. The Romanian lawmaker created lengthy periods of punishment as a mechanism to oppose corruption. The law also established a series of precautionary actions such as the special or extended confiscation and the definition of the public employee, its scope of infringements being easily confused with the one of a private employee. This legislative action reinforces the importance that our study holds in demonstrating the existence of corruption in all the public domains, this being easily taken as a method of adapting to the 36
Guaranteeing impartiality for the servants of justice is also important, as well as ensuring sufficient guarantees which secure the credibility of these principles, such as constant remuneration, examinations based on competitions and transparency, protection, and security in case of pressures brought by corrupt officials. Furthermore, there should be major changes in the educational system, in order to have citizens educated about means of deterring the phenom-
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enon of corruption. It would be beneficial to citizens, who are relying on the help which public institutions would ensure, the fairness of every employee, as well as raising awareness of individuals that corruption represents an antisocial, destructive, unfair behaviour.
highly significant question which was also asked by Cesare Beccaria in the eighteenth century, and it would help us fight against the phenomenon of corruption:
‘Do you want to prevent crime from happening? Let the laws be clear, simple, so that all the strength Lastly, as it has been previously shown, the press of society can be focused on protecting them, and plays an essential role in influencing and edu- not even a part of it to be used with the purpose of cating the masses. In order to make sure it ac- destroying them’ (Beccaria, 2001, p.139). complishes this purpose, the protection and the independence of the press need to be assured. By Andreea Mădălina Arapu Corruption cannot be eliminated through fear and punishments, but by educating and inform- 4th year, Faculty of Law, Babes-Bolyai University, ing each individual of its repercussions over time. Cluj-Napoca, Romania 4. Conclusion To conclude, although corruption in our society represents more than just an infringement of the Criminal Law, I consider advising and informing the individual a fundamental step which can be taken in regards to fighting against this worldspread phenomenon. Provided that once people realise the seriousness of this criminal conduct corruption will naturally stop, individuals need to perceive this as a misconduct which goes against human conscience. The lawmaker’s responsibility, as well as the one of any other law practitioner, resides in the process of informing and educating individuals, in addition to forming some unequivocal and efficient laws, or creating settings for identification and rectification of this behaviour. Other means of tackling the issue consist in presenting positive examples of people who succeeded through integrity and creating objective criteria that need to be met in order to be promoted in different public functions.. Another essential matter would be to try and find an answer to a 37
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DOMESTIC FOCUS Will Ethnic Segregation in Bosnia and Herzegovina’s Education come to an end?
ties. Local students used the school buildings for teaching, while other students, mostly returnees, used different improvised facilities improper for teaching. In 1997, the Federal Ministry of Science, Education, Culture and Sport temporary established a model called ‘two schools under one roof ’. In ‘mixed’ cantons with Croatian and Bosniak population, schools got divided into two parts: Croatian and Bosniak. Accordingly, pupils got segregated in public education. The plan that was supposed to be implemented for one year is still in force nineteen years after. The designed plan assumed that, after the first phase of distrust and possibly hostility, the children would interact and participate together in curricular and extracurricular activities. This decision was justified by the will to overcome war divisions among Bos1. Introduction niaks and Croats ‘not step by step but millimetre by millimetre, without compromising the system’ According to the Constitution of Bosnia and Her(Halimović, 2014). zegovina (BiH), BiH entities (Federation of Bosnia and Herzegovina (FbiH) and Republika SrpThe phenomenon is best described by The Municska (RS)) are responsible for education policies. ipal Court in Mostar in its judgment from April RS is a strongly centralized entity, while FbiH is a 27, 2012 regarding the aforementioned issue. ‘Osdecentralized one, consisting of ten cantons, each novna škola Stolac’ and ‘Prva osnovna škola’ are representing a separate governing entity. Accordlocated in the town of Stolac, populated by Croat ing to the Constitution of FbiH, the cantons have majority and a Bosniak minority. The schools opprimary competence in education. The Ministry erating in the same building are physically dividof Education and Science of FbiH only performs ed by walls and fences into two parts. They have coordinating activities and is in charge of impleseparate entrances. Teachers have two separated menting education policies on the state level. assembly halls. There are two different Student’s Councils and Parent’s Councils. In ‘Osnovna One of the problems that emerged for returnees škola Stolac’, teaching is conducted by Croatian after the war was the denial of access to education curriculum and is supervised by the Institute for for their children. This was conducted by local education in Mostar, while Bosnian curriculum is authorities as a way of blocking any attempt of reapplied in ‘Prva osnovna škola’, and supervised by integration of returnees into the local communito Article 2 of the 1989 Convention on the Rights of the Child, ‘States […] shall respect and ensure the rights […] to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardHarun Išerić ian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status’.
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the Pedagogical Institute of FBiH. The schools work in two shifts. In the first shift of Prva osnovna škola, teaching is conducted for students from the first to the fourth year of study. In first shift of Osnovna škola Stolac, teaching is conducted for students that are attending the fifth to the eighth year of study. The Court notes that the administrations of the two schools ‘consciously decided that younger students of one school would be taught in first shift together with older students of second school, with intention to that, if students already had to meet in the school yard, among them there would be little or no contact at all.’ (Municipal Court in Mostar, case no. 58 0 Ps 085653 11 Ps, April 27, 2012) In addition, the Court noted that as classes are doubled, one for Bosniaks, other for Croats, there are no special classrooms for certain subjects. ‘By the simple fact that there are no special classrooms for subjects like biology, chemistry, physics, children are deprived of the width of adopted knowledge or skills because there are no supplies and equipment that the classrooms certainly should have.’ (Municipal Court in Mostar, no. 58 0 Ps 085653 11 Ps, April 27, 2012) The Court also stated that ‘Bosniak children do not have equal right to education as the Croatian children because they take classes in inadequate classrooms. Children of other ethnic groups cannot attend classes in their native language.’ (Municipal Court in Mostar, no. 58 0 Ps 085653 11 Ps, April 27, 2012) The court refers here to the rights of Serb children to be educated in their mother tongue. Today, 54 schools operate in this way in Federation of BiH (Antidiskriminacija, 2014). They exist in two cantons where the population is divided by half between Croats and Bosniaks. In 2009, UNICEF conducted a research called ‘Divided schools in BiH’. The results regarding the views of the parents indicate that the perception of this problem
is different. It varies from non-recognition of it to the fear of assimilation (UNICEF, 2009). 2. Review of Constitutional and Legal Principles and Practices ‘Two schools under one roof ’ exist for almost twenty years. They are present only in cantons with equal Croatian and Bosniak population: Hercegovački-neretvanski canton and Srednjobosanski canton. Until 2004, such schools had existed also in Zeničko-dobojski canton. In 2007, the Minister of Education of Srednjobosanski canton, Greta Kuna, commenting on the possibility of Croatian and Bosniak children attending some classes together, stated the following: ‘You cannot mix apples and oranges. Apples go with apples, and oranges with oranges’. (Karabegović. 2012) The Constitution of BiH and the Constitution of FbiH guarantee the right to education. Additionally, BiH Constitution confirms exercise of all rights and freedoms without discrimination. European Convention on Human Rights has a special place in Bosnian Constitution: The rights and freedoms set forth in the European Convention on the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other law. BiH signed and ratified Protocol 12 of ECHR (general prohibition of discrimination). Annex I of BiH Constitution lists international human rights agreements that are being applied in BiH. These are, among others: International Convention on the Elimination of All Forms of Racial Discrimination and Convention on the Rights of the Child. The constitution of FbiH in Annex I lists the same international agreements. Therefore, these three international agreements 39 31
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DOMESTIC FOCUS have legal strength of constitutional provisions.
on the Rights of the Children, 2012, p. 8)
International community urged BiH to eliminate the phenomenon of ‘two schools under one roof ’. Namely, UN Special Reporter on Right to Education, in its Report to the General Assembly of UN in 2008, stated that if students are neither given opportunities nor encouraged to build strong networks of friendship, tolerance and mutual respect as a basis of the educational process, the country risks failing to build a peaceful and developed society. ‘Special reporter believes that division in national ground presents unacceptable practice.’ (UN Special reporter on Right to Education, 2008, p. 24).
The Council of Europe Commissioner for human rights in its report from 2008 stated its concern for the education in BiH. According to the Commissioner: ‘The policy of separating children according to their ethnicity can only lead to the strengthening of prejudice and intolerance towards others and lead to further ethnic isolation….Ethnically based and divided education system is an obstacle to sustainable return.’ (The Council of Europe Commissioner for human rights, 2008, p. 26).
The Committee on the Elimination of Racial Discrimination in its concluding observations on the ninth and eleventh periodic reports of BiH in 2015 expressed its concern about ‘significant ethnic segregation within the educational system’. The Committee recommended that BiH takes all necessary measures to ensure that the system of ‘two schools under one roof ’ is ‘not leading to segregation in education and to increase the number of administratively and physically unified schools, where pupils are taught together on the basis of the same curriculum, while respecting their own language and cultural specificities.’ (The Committee on the Elimination of Racial Discrimination, 2015, p. 6)
The Commissioner underlined this issue in the 2010 report: ‘Division along ethnic lines in the education system today are present more than before. Apparently they are actively supported by leading political figures (The Council of Europe Commissioner for human rights, 2011, p. 9). The European Commission against Racism and Intolerance report on BiH (2010) urged the authorities to ‘bring to completion as a matter of priority their work to resolve all remaining cases of the ‘two schools under one roof ’ (The European Commission against Racism and Intolerance, 2010, p. 10).
The European Union in BiH Progress Reports from 2014 stated that BiH has to eliminate ‘two schools under one roof ’ as ‘division based on ethnicity and discrimination in public schools are a serious concern and an obstacle to the society, esCommittee on the Rights of the Children in its pecially in the context of respect of fundamental concluding observations of the Combined sec- human rights.’ (The European Commission, 2014, ond, third and fourth periodical report of BiH p. 24) (2012) requested an action from BiH in order to ‘immediately stop the segregation of children The elimination of ‘two schools under one roof ’ in schools on the basis of nationality, interrupt- is an obligation for the authorities under BiH ing the so-called policy of ‘two schools under one Framework Law 18/2003 on Primary and Secroof ’ and mono-ethnic schools.’ (The Committee ondary Education. The Article 4 states that every 40
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child has an equal right to access to education and equal opportunities for participating in appropriate education without discrimination on any grounds. In 2009, BiH has adopted the Law on prohibition of discrimination. According to the Law, one of the basic forms of discrimination is segregation. The Article 17 mentions the collective lawsuit for protection from discrimination: ‘Associations, bodies, institutions and other organizations established in compliance with appropriate regulations, that have a justified interest for protection of interest of a certain group, or deal with protection from discrimination of a certain group in scope of their activities, can file a lawsuit against a person who violates the right to equal treatment, if it is probable that defendant acts violate the right to equal treatment of a larger number of persons belonging to a group whose rights are protected by a plaintiff ’. Accordingly, non-governmental organizations wishing to put an end to any form of discriminatory behaviour can take legal action (Topić, 2012). 3. Federation of BiH Supreme Court decision
in recognising and exercising rights and freedoms in education on equal basis just because they belong to a different ethnic group. It was also stated in the lawsuit that the defendants discriminate children, students of primary school and high school. Municipal Court in Mostar in its judgment stated that the defendant discriminates children by organizing schools and adopting and implementing school’s curriculum based on children’s ethnicity. Students were divided in schools in the Hercegovačko-neretvanski canton according to their ethnicity. Court ordered Hercegovačkoneretvanski canton to end discrimination by setting up single, integrated, multicultural schools with full respect of the right of children to be educated in their mother tongue. Defendant schools were ordered to create, by integration, the basics of multiculturalism in schools and education of children regardless their ethnicity, according to a single teaching curriculum in their native language. The Cantonal Court in Mostar, the appellate court, accepted the appeal of defendants. First instance court judgment was revoked and lawsuit was dismissed as untimely. The Appellate court questioned plaintiff ’s legal standing and stated that neither parents, students nor teachershave addressed Vaša prava BiH with request to provide protection because they are discriminated. ‘Plaintiff cannot wish better conditions of education in defendant schools and be a bigger guardian of student’s rights than their parents, who did not address it, to protect their children rights.’ (Hercegovačko-neretvanski canton court, no. 58 0 Ps 085653 12 Pž,June 11, 2013). Municipal Court in Mostar has already discussed this issue.
In February 2011, an NGO ‘Vaša prava BiH’ filed a lawsuit against Hercegovačko-neretvaski canton to the Municipal Court in Mostar stating that the practice of dividing children in primary and secondary schools on ethnic ground is a clear example of segregation of children based on their ethnicity. Vaša prava BiH filed this lawsuit agains Osnovna škola Stolac and Osnovna škola Čapljina. In this lawsuit, Vaša prava BiH questioned schools’ curriculum as their goal was segregation of children in ethnic ground. The curriculum resulted in low quality of returnee’s children education since the teaching process was conducted without the necessary teaching materials. Segregation is reflected in the fact that children are excluded and limited By examining the Statute of Vaša prava BiH, the 41
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DOMESTIC FOCUS Court found that Vaša prava BiH among other things is engaged in ‘advocating and raising awareness on human rights and civil society’ and admitted its full authority to submit lawsuit in accordance to the aforementioned Article 17 of the Law on prohibition of discrimination in BiH. Referring to the plaintiff ’s closing arguments, the Cantonal Court stated that lawsuit mostly concerns scope of political problems, and that the Court ‘is not obliged to solve political problems.’ (Highlighted by Author) (Hercegovačkoneretvanski canton court, no. 58 0 Ps 085653 12 Pž, June 11, 2013). In the opinion of the Cantonal Court, the mere fact that seven year old children are being separated according to their ethnicity and enrolled in different, mono-ethnic schools is a political problem. The Court even raised a question whether ‘two schools under one roof ’ represents discrimination at all: ‘Nobody is forcing children to enrol in a school that they do not want. On the contrary, enrolment is free and optional.’ (Hercegovačko-neretvanski canton court, no. 58 0 Ps 085653 12 Pž, June 11, 2013).
Twenty months after the Supreme Court of FbiH decision, the segregation did not end as the students still attend divided schools. Therefore, the main challenge is the implementation of the aforementioned judgment. It is a challenge for executive authorities, children, parents, teachers and society itself. The abolition of segregation and discrimination is in the best interest of each child, because it increases the quality of education and creates a culture that respects human rights and fundamental freedoms of all citizens.
On the other hand, ‘two schools under one roof ’ lead to ethnic divisions in all spheres of society – in culture, health, and public services and so on. There are three steps towards the unification of the schools ‘ (1) Administrative and legal unification of schools, (2) Establishing a unified approach to education and uniform conditions for all students, (3) Full integration of divided schools - the establishment of multi-ethnic divisions.’ (Federation of Bosnia andHerzegovina, Coordination of ministers of education and science in FbiH, 2012, p. 26 –29). Unfortunately, until now, the authorities did not take a single step in order to make this Finally, Vaša prava BiH filled a revision to the possible. Supreme Court of FbiH. The Supreme Court delivered a judgement (Supreme Court of FbiH, no. By Harun Išerić 58 0 Ps 085653 12 Rev August 29, 2014) which revoked the decision of the Appellate Court and 4th year, Faculty of Law, University of Sarajevo confirmed the Municipal Court in Mostar’s judgment. ‘The Court of first instance delivered a lawful judgment when it stated that defendants discriminated children and ordered undertaking of all necessary legal actions to end it.’ (Supreme Court of FbiH, no. 58 0 Ps 085653 12 Rev August 29, 2014). 4. Conclusion
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Limiting the Power of Politics: The Landmark Judgment of the Polish Constitutional Tribunal K47/15 Parliament, the initiation of the unprecedented EU Commission procedure under 2014 Rule of Law Framework, and the unfavourable for the Polish government Venice Commission Opinion. 2. Content
The Polish constitutional crisis, also referred
to as the rule of law and democracy crisis (Ash, 2016; Berendt, 2016; Schulz, 2016; Veser, 2015), centres primarily on the paralysis of the Constitutional Tribunal. The Constitutional Tribunal, a sole guardian of the Constitution, has found itself in a stalemate since autumn 2015 when the Law and Justice Party (PiS) came into power. The conservative Party has crippled the Tribunal by the non-acceptance of the three Tribunal’s judges elected by the previous Sejm (Lower Chamber of the Polish Parliament) and by the amendments to the Constitutional Tribunal Act, which effectively disabled its functioning. Such actions have provoked vociferous domestic and international reactions. For instance, it has triggered the following reactions: widespread protests around Poland, the creation of the Committee for the Defence of Democracy, criticism espoused by academics and NGOs, the ’debate about Poland’ in the European
This article will try to illustrate one of the consecutive attempts of the Constitutional Tribunal to defend itself from the powerful influence, which the ruling political party has tried to put upon it. The recent judgment K47/15 of 9th March 2016 appositely summarises this attempt and presents the opposition of the Constitutional Tribunal to accept changes in the Act regulating its functioning. The uniqueness of this judgment is apparent, as for the first time the Tribunal refused to apply the Constitutional Act, as amended, which caused the ruling party to object to publish the judgment. That has caused a very perilous situation, leaving Poland with a dysfunctional institution, pivotal for the proper functioning of the rule of law and democracy in the country. In the first part we will present the questioned legal basis for the delivery of the judgment K47/15, which is the major point that the ruling party (PIS) refers to. Subsequently, we will turn to the argumentation, which the Tribunal used to justify the delivery of the judgement. In the same part we will also include the Tribunal’s analysis of the constitutionality of the December 22, 2015 Act amending the Constitutional Tribunal Act. In conclusion, we will offer our point of view on the matter, supporting the independence of the Constitutional Tribunal. As long as we acknowl-
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DOMESTIC FOCUS edge that the Constitutional Tribunal in Poland is closely linked with politics (its members are chosen by the Sejm), we can hardly imagine that a Tribunal can be controlled, and in effect subordinated to any political party by making changes to the Act, which constitute the basis for its operation. 2.1 Judgment K 47/15. The questioned legal basis for the judgement. In the judgment K47/15,the Tribunal scrutinised the joint motions of the Commissioner for Citizen’s Rights, the National Council of the Judiciary, the First President of the Supreme Court, and the group of Deputies regarding the constitutionality of the December 22, 2015 Act amending the Constitutional Tribunal Act (later ‘Amending Act’). The questioned areas pertained chiefly to the issue of independence of the Tribunal from the legislative, which changed its functioning among other things by rising the quorum requirement to thirteen (of fifteen) judges and majority requirement from simple to qualified (two thirds) in taking the decisions initiated by an application. The ruling on the problematic matters is not dubious, but the procedure itself. Namely, the Constitutional Tribunal, while delivering the K47/15 judgment, did not obey the provisions introduced by the ‘Amending Act’ putting itself in a breach of Article 197 of the Constitution stipulating that ‘the organization of the Constitutional Tribunal, as well as the mode of proceedings before it, shall be specified by statute’. The judgment was taken by the panel of five judges and passed by the simple majority of votes, which disregards the requirement of thirteen judges quorum and two-thirds majority laid down by Article(s) 1.9 and 1.14 of the ‘Amending Act’. Moreover, the judgement was 44
passed in contravention of the obligation of the Tribunal to deliver judgments in chronological order and no earlier than three or six months (in the situation of cases examined by the full bench) before the delivery of a notification to the parties concerned as prescribed by Articles 1.10 and 1.12 of the ‘Amending Act’ respectively. It is clear that the Tribunal would not be bound by these provisions after this judgment - if it declared them unconstitutional. However, it is doubtful what constituted the legal basis for the a priori nonapplication of the Constitutional Tribunal Act as amended on December 22, 2015, in view of the presumption of the constitutionality of statutes. Did the Tribunal act contrary to the law in this case and infringed the principle of legalism and Article 7 of the Constitution saying that ‘the organs of public authority shall function on the basis of, and within the limits of, the law’? The Law and Justice Party referred to the judgment as a private meeting of judges and not an official sitting of a Constitutional Court and announced that it will not publish it (Ziobro, 2016). This,in fact, means that the judgment cannot be binding in other similar cases, and that the only party that will refer to it is the Tribunal itself. Although judgments of the Constitutional Tribunal are final and applicable in other cases (Article 190.1 of the Constitution), they also shall be published immediately, in order to produce such effects (Article 190.2). The non-fulfilment of this, at first sight, not important, and one may say ceremonial procedure (publishing the judgment), happened for the first time in almost ‘thirty years of democracy’ in Poland. On one hand, it violated the well-worn constitutional conventions, referred by the Judge Marek Zubikin K34/15 as established European and international standards, and on the other hand triggered a serious legal conundrum.
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2.2 The reasoning of the Tribunal
portance, also eliminates any form of its control before its entry into force.
The Tribunal’s judgment K 47/15 can be considered as unprecedented for two reasons. Firstly, it decided for the first time to set aside certain provisions of the Constitutional Tribunal Act, which form the basis of its operation. Secondly, it supplemented the disregarded provisions of the Act with the direct invocation to the Constitution and the Constitutional Tribunal Act notwithstanding the ‘Amending Act’. The Tribunal substantiated its reasoning in the following way:
The elimination of the possibility of control during the time between publication of the act and its entry into force is dissonant with Article 2 of the Constitution- ‘Poland is a democratic state ruled by law’ and Article 188.1 empowering the Constitutional Tribunal to control constitutionality of statutes- considering that several important bodies announced objections. It became clear that the legislator’s intention was to circumvent the law and hamper the work of the Tribunal.
1. The omitted parts of the Constitutional Tribunal Act brought in by the ‘Amending Act’ were indeed the parts that constituted the subject of the scrutiny. In the Tribunal’s view, it is not allowed for the regulations to be the basis and the subject of scrutiny in the same time.
Having established a legal basis for the method of operation (modus operandi) in the case, the Tribunal concluded that the Constitutional Tribunal Act as amended on December 22, 2015 (Amending Act) is overall not in conformity with the Constitution due to the flaws in the legislative process. Additionally, although not required to do so, the Tribunal employed the principle of teleological interpretation of the statutes and turned to explain which particular changes brought about by the ‘Amending Act’ conform/or not to the Constitution. The Tribunal resolved as follows:
2. The invocation to Article 195.3 of the Constitution that stipulates that ‘Judges of the Constitutional Tribunal, in the exercise of their office, shall be independent and subject only to the Constitution’ and the employment of this principle in exchange for challenged parts introduced by the ‘Amending Act’ does not expressly undermine the 1. It rebutted from the beginning the accusation presumption of constitutionality of statutes. of the prohibition of being a judge in its own case (nemo iudex in causa sua) as not applicable. There 3. The Tribunal was compelled to proceed in that is namely no other organ responsible for the analway, as Article 5 of the ‘Amending Act’ of De- ysis of the constitutionality of statutes than the cember 22, did not prescribe any period between Constitutional Tribunal. No law provides that the the promulgation of the law and the time the law Act of the Constitutional Tribunal is of a different, takes effect (vacatio legis). In other words, it pro- special nature or that it should be exempt from vided that the Amending Act comes into force on such analysis. the same day. Such premise, if not based on a vital state interest, not only is in conflict with the idea 2. In the same time, it emphasised the general imof confidence in state and public organs (Vertrau- portance of the Constitutional Tribunal Act. Acensschutz)- by letting the people get acquainted cording to the Tribunal, the wording of the Act with the introduced law, but what is of crucial im- after December 22 amendments, i.e. Article 80.2 45
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DOMESTIC FOCUS of the aforesaid Act, requiring the examination of the cases in regard to their arrival date cannot be considered as an absolute principle. For the reasons that the Constitutional Tribunal judgements are final and of a universally binding application (Article 190.1 of the Constitution) and that the Constitution does not foresee any mode of control or undermining of the ruling due to the procedural flaws, it is very important that any potential doubts as to the basis of its adjudication (the operational provisions of the Constitutional Tribunal Act) are examined prior to the application of the material aspects. It flows from the tenet that the Tribunal’s clear-cut intension was to explain whether the foundations of the foresaid Act are sound. This was done in order to avoid future complications, if it turned out that it examined the cases, which arrived before, operating on the basis of the flawed law. Additionally, it held that the ‘temporal restrictions’ introduced by the legislature on December 22 hinder the independence of courts and tribunals guaranteed by the Article 173 of the Constitution and fall short in drawing a distinction between the time needed for the examination of a case and the number of cases that arrive at the Tribunal. The legislator assumed that all cases are comparable and require the same time for their examination, which is wrong as the cases vary due to their specifics and the matter of urgency. A good example is Article 224 of the Constitution which makes clear that ‘If the President of the Republic has made reference to the Constitutional Tribunal for an adjudication upon the conformity to the Constitution of the Budget or interim budget before signing it, the Tribunal shall adjudicate such matter no later than within a period of two months from the day of submission of such reference to the Tribunal’. 46
3. By the same token, the Tribunal rejected the constitutionality of Article 87.2 of the amended Act of the Constitutional Tribunal, which specifies that a case cannot be heard earlier than three or six months (full bench cases) before the delivery of notification to the parties in the case. The Tribunal again assessed these provisions as arbitrary and dysfunctional, finding no sound justification for adjourning cases, which might be ready earlier for hearing. It constitutes, therefore, an unfound interference in the Tribunal’s sphere, violating Article 173 of the Constitution, and blatantly contradicts the duty of the examination of a case without unnecessary delay by the court, which referred to the Tribunal with the question of law. 4. As to the duty of adjudicating in the full bench, which comprises a minimum of thirteen judges and demands a two-thirds majority in the cases initiated by an application, enshrined in Article(s) 44.1, 44.3,and 99.1 of the Constitutional Tribunal Act, as amended on December 22, the Tribunal took also a negative approach. It pointed out that the aforementioned postulates fail to assure rectitude and efficiency of the functioning of courts and tribunals in that they neither guarantee independent and impartial nor efficient (without unnecessary procrastination) examination of a case. The engagement of the judges in one case precludes a parallel examination of another case. The arguments espoused by the legislator that the increase in a number of the adjudicating bench reflects the higher quality and the objectivism of the rulings is therefore highly controversial. It directly undermines the credibility and professionalism of adjudicating bench of five judges and puts in question the recognised method of ruling in a single judge formation widely employed in
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administrative, civil and criminal procedures in Poland. The previous system of the adjudicating bench composed of five judges seems to be wellbalanced and envisages the possibility of the replacement in case of an illness or abstention from a case in which a judge cannot sit, which is hardly convincible as far as the adjudicating bench composed of 13 judges is concerned. Referring to the obligation of the Tribunal to pass a judgement by two-thirds majority in cases initiated by an application, as envisaged by the amended Art 99.1 of the Constitutional Act, it contradicts Art 190.5 of the Constitution, which similarly stipulates that the ‘Judgments of the Constitutional Tribunal shall be made by a majority of votes’.
ings before it, shall be specified by statute.’ In addition, though it seems incompatible with Article 8.2 of the Constitution, which excludes a direct invocation to the Constitution if the problem matter is regulated by other provisions - in this case, Art 197. The Venice Commission confronted with situations where there is no applicable law in relation to Constitutional Tribunals always recognised their pivotal importance as parts of solid democratic states and opined in favour of effectiveness of this institutions. In the Romanian case (CDL-AD(2006)006) in 2006, the Venice Commission held that the lack of required quorum due to the recusals cannot lead to ‘inability of the Court to take a decision’.
It took a similar approach in the Albanian case (CDL-AD(2009)044), where, in its third party opinion for the Constitutional Court of Albania, stated that the Albanian Constitutional Court is competent to examine the law, which affects the judges of the same Court, providing that: ‘the authorization of the Court derives from the necessity to make sure that no law is exempt from constitutional review, including laws that relate to the position of judges.’ The reason for the decision of the Constitutional Tribunal and the Venice Commission should be advocated as it would seem ludicrous to accept the opposite assumption as to which any government would be capable of effectively hindering the Tribunal’s role.
The actions orchestrated by the Law and Justice Party (PiS) clearly affect the proper functioning of the Tribunal. Significant from the legal point of view were the changes introduced by the December 22 Act amending the Constitutional Tribunal Act (‘Amending Act’), in the result of which the Tribunal was forced to adjudicate on the basis of unconstitutional provisions. The Party tried first to place out with the Tribunal’s cognition the flawed Act by its entry into force on the same day after President’s signature and subsequently set legal traps regarding its functioning by introducing requirements of a two-thirds majority and a quorum of thirteen judges while producing a judgment initiated by an application. The unprecedented steps taken by the Tribunal in order to re-establish an efficient way of proceeding must be acknowledged, even though they, prima facie, may not run in compliance with law - in this case with Article 197 of the Constitution stipulating that ‘the organization of the Constitutional Tribunal, as well as the mode of proceed-
By Sava Jankovic and Sumeet Jalgaonkar Phd studies at Dundee Law School
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DOMESTIC FOCUS The special explanatory clauses - the right to private life. Romanian legal provisions and the case-law of the ECtHR
aim is to analyse the meaning of private life focusing on the clauses which, in the terms of the Romanian Criminal Code, make some intrusions into private life aspects not to be qualified as crimes. Within my analysis, in order to create an eloquent comparison, Oana Dumitru I will draw your attention to some meaningful solutions given by the Romanian Courts of Law and by the European Court of Human Rights.Nowadays, it can be easily noticed that people have a big appetite for information. Having this in mind, it is clear that there is a high risk of intrusions into private life. The doctrine has found that there is no dull or negligible information for the human curiosity (Pavel & Turianu, 1996, pp. 10-11). I like to start by mentioning that this crime is provided for in the Article 226 of Romanian Criminal Code, and it has no correspondent in the previous Code.
tive obligation of our state was created in order to incriminate the acts which consist of intrusions in the private life. For this very reason, the legislative power has made efforts to drastically penalise these intrusions. The sources of inspiration for this legal provisions are to be found especially in Articles 8 and 10 of the Convention, but also in the foreign provisions,such as the laws applied in France, Spain, Portugal, or Italy. (Dobrinoiu et al, 2012, p. 209) Having these sources of inspiration in mind, I will focus on the analysis of the explanatory clauses which make the intrusions to not be qualified as crimes.
In a democratic society, each person has a public life as well as a private one. The right to private life tends to protect the stability of personal life and results from the notion of liberty. This is also the source of difficulty in establishing its limits of application (Sudre, 2006, p. 312). In its negative aspect, this right imposes an abstention from all kinds of intrusions in the private life (Ungureanu & Munteanu, 2011, p. 73). It is indisputable that each person, even a well-known, public one, has the right to privacy, to a legitimate hope of protection and respect of the aspects of his or her private Starting with the ratification of the European life (Rennuci, 2009, p. 249). Convention of Human Rights by Romania in 1994, the need for protection of this fundamental It has been stated that â€˜antagonic liberties can right has been noticed incriminal legislation too. neutralize the right to private lifeâ€™ (Ungureanu & In spite of this, a legislative intervention has lately Munteanu, 2011, p. 74). In order to avoid this efbeen introduced, after 20 years from the ratificafect, it is necessary for us to find out a just balance tion of the Convention and numerous convincbetween the different values at stake. This is also tions in Romania by the ECtHR for the violation the aim of the explanatory clauses from the Roof the Article 8 of the Convention. As a direct efmanian Criminal Code. The right in discussion fect of the Convention, in our national law, a posi48
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has a variable geometry, it is not an absolute one. In spite of this, the right to privacy and to private life belongs to everyone because we are all equal in the face of law, yet the manner in which we analise the intrusions will be different depending on the victim of the crime. By analysing the legal text, we can easily notice that the intention of the Romanian legislator was not to interfere in the way mass-media plays its role in a democratic society, but to defend people whose private life could be subject of intrusions. This conclusion is based on the analysis of the explanatory clause which states the fact that the act of detecting and recording an action of public interest which is significant to the community’s life is not considered a crime. In addition to this, the text provides as well a deolontogical view of the limits imposed for the intrusions into private life. It also sets the limits of the reasons regarding the public order which can sometimes justify the intrusions. In this way, the legislator has tried to make the national law compatible with the derogation clause fromArticle 8 of the Convention. In the following lines I will focus on the study and analysis of the special explanatory clauses. In this way, we signal the fact that the legislator equipped the national provision with some explanatory clauses which make some of the intrusions into private life not qualified as crimes. One reason for this is that un unlimited incrimination of intrusions could mean the total infringement of freedom of expression of the press, as well as the infringement of the right to information. According to the fourth paragraph of Article 226 of the Romanian Criminal Code, the first explanatory clause states that the action comitted by a person who has participated to the meeting with the victim during which the sounds, the conversations or the photographs were recorded/taken
is not considered a crime if he or she is able to prove a legitimate interest. Such an interest exists when we are talking about the protection of important values, material or moral ones in our state (Dobrinoiu et al, 2012, p. 213). For example, such a legitimate interest could exist in the case of a recording in which the victim admits to have intimate relations with the offenders’ wife, when the reason for doing this is to use the recording in the court for a divorce (Dobrinoiu et al, 2012, pp. 213-214). In order to use this clause, one’s legitimate interest has to be very serious in order for it to be protected over the victims’ right to private life. This fact was emphasized by the ECtHR in numerous decissions such as Bărbulescu v. Romania (2016). Furthermore, I consider that, in this case, the information no longer has a private character for the author of the action. According to the Convention and to the constant case law of the ECtHR, the state has no positive obligation to punish this type of intrusion since it is a legitimate one and takes into consideration the conditions imposed by the derogation clause of Article 8 of the Convention. The restriction of the limits of private life is done in order to protect the others’ rights and freedoms too. The second explanatory clause states that if the victim acts explicitly with the intention of being seen or heard by the offender, the intrusion is not considered a crime. In this context, the very person who claims to be the victim of the crime is the one who exposes herself publicly, which means that there is no reason to protect her. An example could be the situation in which the victim widely opens her window and gets undressed while looking at the offender, who is also her neighbour. In this situation, the action of taking photographs of the victim is not considered a crime (Dobrinoiu et al, 2012, p. 214). I reckon that, in this case, we are talking about the victim’s consent. For this reason, the protection of her private life is not justi49
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DOMESTIC FOCUS fied. The victim exposed herself, so the issue is no of interception measures in the circumstances longer of a private nature, but of a public one. provided by the Article 226, by prosecutors and police during prosecution, but under the condiGiven that public life is not protected by crimi- tions of Articles 138-154 of the Romanian Code nal provisions, its elements can be analysed and of Criminal Procedure. For this hypothesis, the discussed without resorting to the technical as- special explanatory clause is redundant, because pects of criminal law. This perspective takes into the action is allowed by the law. If the conditions consideration the right to information which is impossed by the law for using such measures are guaranteed by our Constitution and reiterated in not satisfied, it can be resorted to the justifying numerous provisions contained within different clause. However, in my opinion, this law could fields. become the source of abuse coming from the prosecutors, which would certainly be punished Another justifying clause relates to the statement by the ECtHR. that the intrusion is not considered a crime if the offenderis witnessing a crime or contributeswith Likewise, according to the last explanatory clause, proof in order to apprehend a criminal. In this the act of detecting and recording an action of case, there are two antagonistic social interests in public interest which is significant to the comconflict - the individual’s right to private life and munity’s life is not considered a crime. However, the proper administration of justice. By examin- the disclosureof the action has to be more advaning this clause, it can be concluded that the legis- tageous than the prejudice caused to the victim. lature considered that the social interest concern- This very last condition’s aim is to solve the coning the proper administration of justice is higher. flicts which can occur between the right to private life and freedom of speech, as applied in the case Technical surveillance measures ordered to pre- of the press, which certainly plays an important vent criminal acts or to facilitate prosecution role in each democratic society. are considered to be interfering with private life, which is guaranteed by the Article 226 of the Ro- According to the Convention, the states also have manian Criminal Code. In Klass and others v. the obligation to protect the freedom of speech. Germany (2000), the ECtHR specified that the However, if Article 10 of the Convention recogprerogative of the state to secretly surveil its citi- nises the right to reveal information to the public, zens is a feature of a police state and can be tol- in its second paragraph it provides that the right erated only if it is absolutely necessary in order in discussion can be subject to some conditions, to protect the democratic institutions. The Court restrictions or penalties which are also provided imposes three cumulative compulsory conditions by the law. These restrictions represent necessary which are to be taken into account in order to jus- measures which have to be taken in a democratic tify the interference: the intrusion has to be pro- society in order to protect other people’s rights vided by law, it must pursue a legitimate aim and this is also the aim of Article 226 of the Romanian it has to be necessary in a democratic society in Criminal Code. In the Court’s case-law, Gunorder to achieve its aim. narsson v. Iceland (2005), for example, indicated that the disclosure of real information, relating In our national legislation, the law allows the use to the way in which some high officials made use 50
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of their competence cannot be considered as an unjustified intrusion into their private life even if their reputation is damaged. Also, in our national law, it has been considered, for example, that there is a public interest with a great significance to the community’s life in the act of photographing a mayor in his mistress’ house during some catastrophic flood during which he was under the obligation of coordinating measures in order to secure the people’s safety and their evacuation (Dobrinoiu et al, 2012, p. 214). However, the incidence of this explanatory clause is conditioned not only by the existence of a public interest and the significance to the community’s life, but also by the existence of some greater public advantages than the prejudice suffered by the victim.
commited a crime. Even if the national legislation allows the access of mass-media to information concerning the case, the Court did notfind any legitimate justification for this intrusion. The first complainant was under arrest so there was no risk of escaping from being held liable or responsible, which is why the dissemination of his photograph could not be justified by the request of public support for the act of catching him. Furthermore, it cannot be argued that the judicial procedure was a public one because at the moment of the disclosure the trial had not begun. Having these conclusions and circumstances in mind, the dissemination of the first complainant’s photograph, taken from his file, did not have a legitimate justification. The Court stated that Russia had violated Article 8 of the Convention (Chiriţă, 2013, Taking all these things into consideration, my pp. 16-17). opinion is that the individual’s right to private life is limited especially by the public’s right to infor- In conclusion, given the realities of our daily life, mation. However, the balance between them is I argue that the intervention of the legislature in very fragile. I find that the judgement Khuzhin this very field was of utmost necessity. The develand others v. Russia (2008)is illustrative of this opment of technology as well as the interest of statement. The complainants are three brothers humans in private aspects have created so far unwho were arrested in 1999 under the accusation just situations, mainly due to the previous lack of of having kidnapped and tortured a person. In the provisions concerning this behaviour. By ratifydays preceding the trial, during a talk-show, a na- ing the European Convention on Human Rights, tional TV program has dissaminated some pho- Romania has assumed both positive and negative tographs of the complainants. After this, a local obligations in order to protect its citizens’ private newspaper has published an article on this very life and their freedom of expression, although it case. The three brothers filed numerous com- is true that Article 226 of the Romanian Crimiplaints but the prosecutor informed them that, nal Code has its drawbacks.With regard to the futaking into consideration the national legal provi- ture, we look forward with interest to our national sions, they had the right to disclose information courts’ solutions in order to urderstand how the of the case and transfer it to the journalists. The explanatory clauses are interpreted according to Russian Government did not justify in any way ECtHR’s case-law. this interference withprivate life. In the Court’s By Oana Dumitru vision, though, when a phograph is published in Faculty of Law, Babes Bolyai-University, the context of an ongoing criminal procedure, it is Cluj-Napoca, Romania compulsory for the authorities to find some reasonable justifications for the interference with the This article was a 1st prize winner at the ELSA private life of the person who is accused of having Essay Competition on Criminal Law (2016) 51
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DOMESTIC FOCUS Actio libera in causa and criminal liability
Introduction A person who commits a crime must be held responsible for his or her actions if the crime is committed with a certain form of guilt, in an unjustified and illicit manner. Thus, crimiMaria Neștiut nal liability (i.e. being held responsible for an illegal behaviour that causes harm or damage to someone or something) is a legal consequence of committing criminal actions under certain conditions. But how can one identify these conditions, especially considering the fact that one’s responsibility does not eliminate liability nor reduces it? The aim of this article is to give an answer to this question from the perspective of criminal responsibility and the situation called actio libera in causa.
ever, determines a very strict interpretation of the notion. Consequently, this article will review and analyse doctrinal, legal and jurisprudential matters concerning the evolution of the relation between responsibility and liability connected to the actio libera in causa issue. Examples will be offered for a better understanding of this approach, along with the jurisdiction of Romania’s Supreme Court, and a comparative view of the actio libera in causa in different legal systems in Europe. 1. Subjective liability with reference to the concept of responsibility Holding a person responsible for criminal actions also means finding a way of imputing these actions as illicit in a subjective manner. Criminal law has faced a shift in approach when the personal imputation of a crime was finally considered an element of the criminal action’s structure by abandoning the psychological theory of responsibility (Streteanu and Nițu, 2014, p.409). An important distinction was made between objective and subjective liability, as the objective way involved making a person criminally accountable for causing social harm without establishing guilt. It pertains tothe application of punishment for actions and their consequences in cases where the person being held accountable did not or could not have foreseen the consequences. However, objective liability is the manifestation of a rather primitive approach, since already the Code of Hammurabi separated the intentionally committed crimes from the culpable ones (Mirișan, 1996, p.19).
This last notion is defined by a German doctrine as a situation in which the subject is self-inducing alcohol intoxication with the aim of committing an offence later, while being in a state of incapacity. Even so, he will remain liable for the offence due to his previous guilt in self-inducing the irresponsible state (Foster and Sule, 2010, p.356). The action libera in causa may be a basic principle in some continental legal systems, but it is in fact an exception from a generally accepted rule, according to which the subject’s intentional position is analysed at the very moment of the crime, and Responsibility is defined as one’s capacity of unnot earlier in time. This exceptional nature, how52
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derstanding the value, the consequences of his or her actions, and determining – in an intentional way – the free will by which conscious choice is to be made between many possible circumstances. Contrary, irresponsibility implies a total lack of psychological capacity of will and understanding in a certain situation (Streteanu and Nițu, 2014, p.416). The Romanian Criminal Code includes causes which eliminate the possibility of imputing one’s criminal action, two of which are irresponsibility and complete intoxication with psychoactive substances, such as alcohol and drugs. According to a well-known scholarly work, the traditional approach towards the action libera in causa is roughly the same as the approach we can find in German law (Shute and Simester, 2002, p.147). The generally accepted solution, and in my opinion the most coherent one, is to strictly analyse the subject’s intentional position regarding the result of his or her actions referring to the moment or the point when the subject caused the irresponsible state in which the crime was committed. Actus reus non facit reum nisi mens sit rea is a Latin maxim, which means that the act is not culpable unless there it implies a guilty mind as well. On the other hand, the lack of voluntariness is not simply a ‘mens rea’ (meaning proof of fault and culpability) negating defence, but provides something more: the defence negates the ‘actus reus’ (meaning the external behaviour or conduct which is prohibited by the criminal law) required for the crime (Shute and Simester, 2002, p.148).
nates imputation), according to various voices of legal literature, only covers the situations in which the subject did not self-induce the irresponsible state (Streteanu and Nițu, 2014, p.416). This is an affirmation requiring an observation, as it is uncertain what will be the subject’s fate if the irresponsible state and the actio libera in causa committed were not intentionally induced, but only culpable. What will be the solution if the person should have or could have predicted the consequences of his or her actions, but culpably did not? Indeed, this is a gap of the mentioned legislation, which should be de lege ferenda, covered (here, the Latin maxim is a concept proposing a legislative improvement, what the law ought to be, opposed to what the law is at the present moment – a view to the future law). That is because the legality principle, which prevails in criminal law does not allow the judge to extend the meaning of law beyond its legal interpretation, and, in our matter, only pertains to intentionally induced states.
In order to give the issue a clearer and more practical view, an example shall be provided. A wants to kill B, but he is afraid that he might not have the courage to fulfil the deed. In order to overcome his scruples he gets intoxicated and then – in a state of incapacity – carries out the manslaughter. As A’s intention covered getting into an irresponsible state, as well as killing B, both actions were linked to one another by his intent. Furthermore, he had sufficient capacity of guilt at the moment when he initiatedthe chain of events (Foster and 2. The legal frame of reference in Romania’s leg- Sule, 2010, p.356). Thus, he can be considered liislation on the matter able for manslaughter in connection with the action libera in causa. This is the first hypothesis Nevertheless, Romania’s current legislation denies tackled in which the intention covers the whole this perspective, since Article 28 of the Criminal chain of causalities. Code (which shows one of the causes that elimi53
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DOMESTIC FOCUS Thus, the element of guilt, which is missing at the time of the commission of the offense, is hypothetically brought forward when the offender intentionally got into alcohol intoxication. In other words, he must show ‘double intent’ or as it is called in the German legal system, ‘Doppler Vorsatz’. According to Foster and Sule (2010), the commission of the whole crime is actually commenced at this first point (getting intoxicated). I cannot agree with this argument largely because in my view, this affirmation implies that some actions, which can barely be considered preparatory acts for the following crime, are in fact acts of commencement. This is a perspective offering the possibility for deeper consideration, since some general elements of a crime’s structure (in our case, preparatory acts) are not generally punished, but only in some exceptional circumstances where the law clearly prescribes so. 3. Questionable court cases The previous demonstration reflects on a rather simple problem: the intention that covers the whole chain of causalities. The delicate and problematic issue is basically the situation pertaining to a person culpably self-inducing the irresponsible state. In order to depict the problems with this perspective of the action libera in causa, a Romanian author refers to two cases of the Supreme Court (Mirișan, 1996, p.102).In one of them, the judges decided that the person is not irresponsible by the interpretation of Article 28, even if – at the moment of the crime – he was completely incapable due to the complete self-induced inebriation. In fact, the subject was suffering from a psychological disease, which, combined with alcohol, resulted in his irresponsible state of mind. 54
In the other one, a person suffering froma severe and complex disease called encephalitis with a strong potential of epilepsy has consumed a certain amount of alcohol and, in that background, lost his sense of mind and committed a crime. The problem with both cases is the lack of analysis concerning the internal and subjective position of the person at the moment of the consumption of the substances. The value of the person’s culpable attitude is not enhanced, but a comfortable solution is given as simply ‘not irresponsible’ in the light of the interpretation of Article 28 from the Romanian Criminal Code, because it is considered to be a ‘complete voluntary drunkenness’,while the voluntary aspect in this case is extremely doubtful. Examining this last case, we can see that encephalitis is a severe medical condition that involves a problem with one’s brain–its neurological symptoms include intellectual disability, nervousness, mental confusion and sometimes convulsions. With a strong potential of epilepsy, this condition is basically worse and can affect all of the body’s functions, including the cognitive and visual ones and also the behaviour, in a severe way. Confronted with these facts, can anyone argue that the ‘drunkenness’ is voluntary? There can certainly be found hypothesis where the subject has no guilt at all, being thus very far from the intention which Article 28 speaks about. The irresponsibility is caused first of all by the person’s severe medical condition, which may or may not have been worsened by the alcohol consumption. Also, if there was guilt on the person’s behalf, the law instance does not analyse the person’s possibilities and real determination regarding the understanding of those unlawful consequences following his or her actions of consuming certain
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substances, such as alcohol. This might be disastrous for the hypothesis of the action libera in causa, because it comes to the application of an absolute and indisputable presumption of guilt, determined merely by a person consuming certain psychoactive substances in a givenamount. Such a presumption cannot be accepted under any circumstances in a legal system directed by constitutional (criminal) principles, such as the legality principle and the presumption of innocence (Article 23 of the Romanian Constitution and Article 6 of the Human Rights Act). Therefore, these kinds of solutions, which ignore the person’s previous form of guilt in the action libera in causa situations, represent a tendency to open a path for objective liability in criminal law, which is absolutely unacceptable. 4. A brief comparative law perspective
actually the achievement of the German’s doctrine and jurisprudence, and in this system the actio libera in causa can be committed both intentionally (corresponding to Article 77 of the Romanian Criminal Code) and culpably. This last aspect, involving one’s culpable attitude, is not regulated in Romanian legislation and represents a serious gap and problem for those commenting on the actio libera in causa. Conclusion To conclude, I strongly believe that there is a need for the legislator’s intervention in covering the gap in the Romanian Criminal Code concerning the many possible situations of the actio libera in causa and especially the completely voluntary self-induced irresponsible state, where the person did not intend to do so, but is culpable for inducing this state or for committing a resulting offence. There is a significant need for a legal basis of analysis and decision on this matter in the Romanian legal system, which could be solved, in my opinion, by finding inspiration in the German legal approach of the actio libera in causa matter.
The issue of a person’s criminal liability for an offence committed as a result of self-induced alcohol intoxication (or another state of irresponsibility) is tackled in most European legal systems. To provide an instance, the Swedish Criminal Code states that if the subject could have avoided the By Maria Neștiut irresponsible state, and thus committing the offence, he will not benefit from the legal causes of Faculty of Law, Babes Bolyai-University, Clujimpunity. The actio libera in causa is also regulatNapoca, Romania ed by the Rome Statue of the International Criminal Court, which only excludes the possibility of This article has been awarded the 2nd prize at benefiting from exoneration if the person volun- the ELSA Essay Competition on Criminal Law tarily intoxicated himself. (2016) Thus, the Statue is trying to prevent the dishonesty of some individuals by creating an incapacity state to cover the commission of certain crimes. Finally, in the German criminal legal system, the actio libera in causa was lifted upto a higher position, namely, it became a principle of law. This is 55
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REFLECTIONS In an era of intense globalisation, are states becoming obsolete and losing their power and sovereign control?
This paper deals with
the characteristics of the term sovereignty as well as state power. Its aim is to find out whether the sovereign position of the states is changed in terms of an era of globalization. We can demonstrate this by answering the quesMonika Martišková tion whether the Slovak Republic lost its sovereignty when accessing the European Union. In this paper, the accession of the Slovak Republic into the European Union and the transmission of part of its sovereignty are also mentioned briefly. The reader can find the definition of sovereignty within the interpretation of the Constitutional Court of Czech Republic, and the possibility for Member States to withdraw from the European Union. Last but not least, the article is finished with the cogitation about the power position of nation states.
to the EU was organised, and the affiliation of Slovakia to the EU was supported by 92,46% of the participants (Karas, Králik, 2012). Since the Treaty of Accession had already been signed, the referendum was only declaratory in nature. After that, Article 7 of the Constitution of the Slovak Republic was amended, and thus legally binding acts of the European Communities and the European Union obtained priority in application over the laws of the Slovak Republic. The Constitutional Court of the Czech Republic in its decision, file nb. Pl.ÚS 19/08, stated that the European Union is a unique, sui generis entity, which is not included in the basic state theory categories. ‘Integration character, in this respect even in the case of the European Union, can ultimately bring protection and strengthen the sovereignty of Member States to external, particularly geopolitical and economic factors; in example also to the newly emerging globalsuperpowers, where it is difficult to estimate the future value priorities that are willing to build and afterwards obey a new order of globalized world. ‘ (file nb. Pl.ÚS 19/08, point 102).
1. The way of the Slovak Republic to the loss of 2. The transformation of the term sovereignty sovereignty Regarding the loss of sovereignty, the Slovak Republic decided freely to relinquish part of its sovereignty by applying for the European Union (further on abbreviated as ‘EU’) membership at the European Council in Cannes on June 27, 1995. Arguably, the transmission took place on April 16, 2003, when the Slovak Republic signed the Treaty of Accession at the summit of the Council of Europe in Athens. One month later a referendum on the Slovak Republic’s accession 30 58
The Constitutional Court of the Czech Republic clarified the line of the development and transformation of sovereignty: ‘It is generally considered that the state and its sovereignty are undergoing transformation and that no state is nowadays such a consistent and separate organization as assumed in the past classical theories. Even legitimate sovereign power of the state must necessarily follow the ongoing trends and try to approach them, understand them, and
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gradually subordinate this spontaneous process of globalization lacking the hierarchical organization of a democratic legitimacy’ (file nb. Pl.ÚS 19/08, point 105). ‘It may be inferred that, similar to the Czech Republic, the Slovak Republic did not have a very choice in its decision to enter the EU. These two countries, likewise others did, decided this way only to fulfill expectations to avoid falling behind other countries of Europe and to accommodate with the evolution of our continent. This way they could become part of the coupled European countries with the aim of gaining power and becoming full-fledged players on the world stage. Sovereignty of the modern democratic state is not in itself a purpose, it is merely a tool for the realisation of fundamental values. Competencies were freely transferred by the states to ensure a proper functioning in the pre-agreed manner. This means that there is no weakening of the sovereignty of the state, but rather the result can be a strengthening in the common practice of an integrated entity. The European Union has further developed its concept of shared sovereignty, and thus Member States may continue to govern as sovereign states, or at least partially, and their competences can temporarily or permanently be transferred (file nb. Pl.ÚS 29/09, point 145). It is assured that EU Member States can act as ultima ratio (the last resort) and may review whether an act of the institutions of the EU deviates from the powers that the Member States transferred to the European Union.
The Lisbon Treaty explicitly provides for the possibility of re-transfer of powers to the Member States in a situation where it is no longer necessary for them to be carried out by the EU. It also regulates the possibility to withdraw from the EU – in Article 50 of the Treaty on the European Union, referred to as withdrawal clause. ‘The explicit articulation of this option in the Lisbon Treaty is a strong confirmation of the principle States are the Masters of the Treaty and the continuing sovereignty of Member States’ (file nb. Pl.ÚS 19/08, point 106). As the Slovak Republic voluntarily handed over part of its sovereignty, it can take it back the same way. One could argue that thisindicates the fact that the Slovak Republic never even lost its sovereignty. When the state can take its sovereignty and comepetences back by withdrawing from the EU, it means that the sovereignty still belongs to the state. However, it can be pointed out that one of the most significant questions is not the theoretical but the practical possession of sovereignty by the Member States.
The idea of continuing sovereignty can even stand on the assumption that the sovereign state is the one who has the power to set its own competences. There are two ways that the EU could not prevent the Member State from exercising its competence. The first is that the competences of the Member States are kept by them. The second option – if the competences of Member States were passed o n the EU – is that the EU cannot extend its competences without the consent of Beyond the proposals, the Constitutional Court the Member States. In this case, Member States of Czech Republic added that national sover- remain sovereign. eignty is in no way disturbed by the creation of 3. Does the EU threaten the power positions of inter-state system of collective defense. If it was nation states? so, the Czech Republic would have lost its sovereignty on the day of signing the contract on ‘The law is a command, expression of the will of common defense, when accessing the North At- sovereign ‘ (Loughlin, 1992, p.73). Is it not the lantic Treaty Organization. EU that is becoming sovereign with regards to 59
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REFLECTIONS its legislative power, which is so strong that it is a the legal system is based on the decision, not on legitimate means to oblige the Member States to the norm ‘ (Procházka, 2013, p.340). enact EU legislation? 4. To whom should the power belong? Regarding the application of laws, the principle People as citizens of a state decided to pass along of the priority of EU law is applied, whereas the part of their freedom into the hands of their state, treaties do not contain any provision that would which became sovereign and afterwards it has solve the conflict between national law and EU surrendered part of its sovereignty in favour of a law. This principle was designated by the Eurohigher entity. It was therefore correct to allow the pean Court of Justice in the case Costa v. ENEL. citizens of the state to express their opinion in The main reasons for the application of the prinsuch an important step as the transfer of nationciple of the priority of EU law are its direct apal sovereignty was. In principle, people should plicability and direct effect, which must not be govern. The famous quote of Winston Churchill: endangered by the discretion of national courts. ‘Democracy is the worst form of governance exThe EU law cannot be challenged by any national cept of all the others that have been tested from rule or principle, otherwise the transfer of pow- time to time’ (Langworth, 2011, p.574) suggests ers from the Member States to the EU would not that people are still trying to keep alive this best make sense (Karas, Králik, 2012, p.122, 124). EU known form of government, although the perlaw is an independent source of law and there- fect democracy is an unreachable goal. fore cannot be overcomed by the legislation of The historical example of how the power of the the Member States. This is due to its special napeople can be too dangerous is Athens in its ture. ‘Only when it is promoted as the highest golden age, when the public opinion was dilaw by all national courts of the Member States, vided on the question of helping Sparta, which EU law can be considered effective’ (Procházka, had been destroyed by an earthquake in 464 BC. 2013, p.337). Ultimately triumphed the opinion that Athens Advocate General Karl Roemer, in his opin- cannot allow ‘the loss of the second horse in the ion from December 12, 1962 on the Van Gend common yoke of Hellas as not to cripple along’ en Loos case, attributed the crucial importance (Zamarovský, 1990, p.314). An important expanof national constitutional justice in finding the sionary step should have been the Sicilian experight way to determine the impact of the found- dition in which most of the army was destroyed. ing treaties on the national jurisdictions of the ‘That was too much that flocked to Athens at one Member States. He found that one of the rea- time, and not without blame, and especially not sons for the rejection of the direct effect is that without mistakes of their leaders and the people; the constitutional rights of the Member States, the first repayment for errors was a coup d’etat particularly with regard to the relationship be- (seizure of power), a second was enemy blood tween transnational and international law and revenge and third military defeat ‘ (Zamarovský, subsequent national legislation, are not uniform’ 1990, p.327). Weakened Athens was attacked by (Procházka, 2013, p.341). Kahn and Schmitt Sparta and was destroyed. claimed that the ‘Whole legal order is based on What contributed to this defeat came from the a decision of the sovereign. Like any other order, 30 60
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REFLECTIONS inside of Athens, from the decisions of its inhabitants. Thus, the greatest desire for the application of the most perfect democracy caused the eclipse of democracy. All steps were voted by the people’s assembly, despite the fact that politicians explained people what nonsense it is to ‘bet everything just on one card’ (i.e. Sicily). The power of the people, therefore, can also be devastating. However, it does not make the power of the people less important and determining. The expansion of the EU secured new sources of power that multiplied its inner strength. But what is the real power of Europe today? The Slovak Republic, as well as many other countries on the European continent, lost part of its sovereignty for which it has gained many benefits in areas such as agriculture, economy, monetary union and justice- Slovakia has also become part of a common European area of security, freedom and justice. Yet, it is likely that the European Union is under pressure to fall apart. Stronger states will not stand for the protection of a union of states, but for their own sides. The states will defend their interests, they will not fight for the states the existence of which, so to speak, ‘they do not need’. It all flows from the feeling that Europe is not ours. This can be evidenced by the example of the participation in the elections for the European Parliament When the percentage of people who take part in the elections is rather negligible, there can be no social contract between the EU and its citizens. Citizens are giving up their right to decide through their ignorant approach towards EU institutions, and their passive attitude is saying: ‘Do what you want’. The idea of the United States of Europe could therefore be an option to safeguard the stability of the EU. Only a single federal state of EU could create a strong entity. Thus, as in the United States, where it does not matter if someone 30 62
is from New York, Texas, or California, for their federal state they would proudly stand under any circumstances. However, in the future of Europe the centrifugal tendency of the states is much more expected, and, even today, euroscepticism can be observed. Also, the more the central government tries to centralize its power, the more the individual parts of the government are trying to break away. Europe’s problem is that it does not have a homogeneous population, Europeans do not feel being one nation, there is no appropriate level of fellowship –as it is for Americans. And this fellowship is difficult to be created only on the basis of some power-organizational scheme. The European Union has to focus on meeting its original objectives, such as peacekeeping, economic cooperation, and the free movement of citizens. If the EU will expand too much at the expense of the Member States, the centrifugal tendencies will spread, and the EU’s efforts to widen its external force will result in the disintegration of the internal strenght. In addition, the Member States would take back their sovereignty, which still truly belongs to them as Article 50 of the Treaty on the European Union states. 5. Cogitation as the ending Sovereignty serves primarily as an ideological doctrine that seeks to defend the power position of an entity. Within the EU, talks about the sovereignty of nation states are increasingly arising. Does this happen because these states feel that their position of power is being threatened by the position of the EU? There are also some theorists such as Karl Raimund Popper, who argued that the concept of sovereignty is completely useless and even harmful. Popper did not ask who holds the highest power, which means who is to govern. A fun-
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damental question for him was how state power should be limited. Plato solved this problem of political theory by promoting the governance of ‘the best’, ‘the wisest’, ‘native rulers’ and ‘those who have mastered the art of government’. This is understandable, since people are not likely to choosethe less qualified candidates. But how can they know that ‘those unqualified’ are not the ones they have chosen? The society should therefore be well-prepared for this possibility and take into consideration the fundamental question: ‘How can we organize the political institutions in order to avoid the situation in which the bad or incompetent rulers can cause too much damage?’ (Popper, 1994, pp.113-114). The answer to this question can be given to us by the theory of checks and balances, which will oversee the power of the sovereign. Last but not least, I would like to mark that nothing can be seen the same today and forever, and the same way in the minds of everyone. As time goes by people change, and they see the law in new light and in another way. Future events may bring unexpected aspects considering the particular provisions of our laws, and what people read one way before, now they read it with a completely different meaning. One should never forget the famous motto ‘Historia magistra vitae est’, in order not to repeat the mistakes of the past. We hope that the whole concept of the European Union will be in the end prospering for the Member States, not destructful. By Monika Martišková 5th year, Faculty of Law, Trnava University in Trnava, Slovak Republic
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REFLECTIONS Sovereignty and Intervention under the Constitutive Act of the African Union 1. Sovereignty
African nations were eager to enjoy their newly acquired freedom and sovereignty when they established the Organization of the African Unity (hereafter OAU). Hence, they inscribed sovereignty as the baHenok Gebeyehu sic tenet of the OAU so that they can ‘easily’ guard their domestic affairs against outside intervention. The OAU Charter stated protection of sovereignty, territorial integrity, and independence of member states as the principles of the newly established organization. Sovereignty is a concept that stands for an independent state that has the right to handle its domestic affairs without any external interference. However, in the current international setup, sovereignty becomes a ‘second-order norm’ and it is not as important as it used to be. Makinda, Samuel, and Okumu (2008) split the concept of sovereignty into three. The first one is ‘juridical sovereignty’ that is conferred by the international recognition for states (ibid). ‘Empirical sovereignty’ is the other type of sovereignty that bestows states power over their domestic resources and affairs (ibid). According to this type of sovereignty, a government has a license to do whatever it wants to do on its citizens. In this Westphalian conception of sovereignty, the domestic affairs of the country are sacred and left for the concerned government only. The third conception is ‘popular sovereignty’ (ibid). 30 64
This is the recent formulation of sovereignty as the responsibility of states towards their citizenry and the international community. In contemporaneous global setup, sovereignty entails responsibility on the government to protect the life and safety of the citizenry. State authorities are also liable for the failure to observe their duties towards their citizens and to the international community through the United Nations (hereinafter UN). Therefore, responsibility to protect is an obligation ‘erga omnes’(an obligation that states owe to the international community). The International Commission on Intervention and State Sovereignty (hereafter ‘the Commission’) expressed the idea of sovereignty with a ‘less confrontational idea of responsibility to protect’ (Peters, 2009, p. 8) to evade the routine sovereignty-intervention tension. Sovereignty presumed the capacity of governments to effectively administer the country and protect the citizenry. Hence, the new dimension of sovereignty imposes a duty on the government to protect citizens from avoidable harms. The concept entails that, if the state fails to protect its citizenry, the responsibility to protect them will be borne by the international community. The new formulation of sovereignty as a responsibility to protect is enshrined in the Constitutive Act of the African Union (hereafter ‘the Constitutive Act’ or ‘the Act’). Article 4 , letter (h) as amended by the Protocol on Amendments to the Constitutive Act of the African Union bestows a right to the African Union to intervene to avert mass atrocities (war crimes, genocide, and crimes against humanity) or/and a serious threat to legitimate order. The Act revisited the West-
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phalian notion of sovereignty and the absolute non-interventionism in the African continent. The revision transferred the concept of sovereignty from state to human security. 2. Non- Intervention The principle of non-intervention is a natural consequence of state sovereignty. Pursuant to Article 2, (4) of the UN Charter, states have a duty to respect the territorial integrity and political independence of any state. While this provision prohibits intervention by another member states, Article 2, (7) of the Charter prevents the United Nations from intervening in the domestic affairs of any state. With the same token, Article 4, letter (g) of the Constitutive Act condemns the interfering in the internal affairs of another state. However, in the contemporaneous global set-up, the concept of absolute non-interventionism has changed. In the emerging consensus, the state sovereignty and territorial integrity are not absolute blockades against intervention. On the other hand, responsibility to protect should not be a Trojan horse for the interveners’ selfish interest. It should be tailored for halting conscious shocking mass atrocities or restoring peace and stability. The international community may intervene into another state under the name of responsibility to protect to prevent or stop grave crimes like war crimes, genocide, and crimes against humanity. 3. The Emerging Intervention Intervention may be considered ‘an unacceptable assault on state sovereignty’ (Kioko, 2003, p. 818) if a state intends to live in line with the Westphalian principles. However, on the new global stage where the concept of sovereignty reconstructed in terms of responsibility of states to shield their people from mass human rights violations, at times, intervention is a necessary and an acceptable evil.
The principle of sovereign equality of states is provided under Article 4, letter (a) of the Constitutive Act. Member states are also prohibited from interfering in the internal affairs of any country. However, the non-interference principle has relativised by allowing the African Union to intervene in member states to put a stop to grave human rights violations (war crimes, genocide, and crimes against humanity) and to restore peace and stability when a serious threat to legitimate order happens. Intervention is institutionalized by the Constitutive Act of the African Union under the name of responsibility to protect. The principle of the responsibility to protect emerged from the work of Francis Deng and the report of the International Commission on Intervention and State Sovereignty (Williams 2007). Its incorporation in the Constitutive Act of the African Union is stimulated by the failure of the Organization of the African Union to end the scourge of major human rights violations in such countries as Uganda, Central African Republic, and Rwanda. The Act is the first international treaty that explicitly recognises the right to intervene in the internal affairs of a member state. Intervention is considered as any action against the state without its consent directed at the political independence, territorial integrity or sovereignty of the nation. It may take different forms as perceived by the ICISS report as ‘actual or threatened political and economic sanctions, blockades, diplomatic, and military threats, international criminal prosecutions’, and military intervention (ICSSI, 2001, p. 8). However, in the African setting, the Constitutive Act seems to envisage a military intervention. This is because the acts that invite intervention pursuant to the Constitutive Act are crimes that are ‘likely to occur in the context of armed conflict’ (Kindiki, 2003, p.9). Because of that, military intervention is an apt form of intervention to address these 65
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REFLECTIONS heavy breaches of laws. Yet, a military intervention should only be preferred as a last resort when the other less-intrusive mechanisms have failed. Interventions that take place with the invitation of the host country are out of the boundaries of the conception of intervention by the ICISS and by the Constitutive Act. The notion of intervention gained the present currency mainly due to the ICISS Report. Besides, the Constitutive Act is short of criteria except setting forth the just causes that warrant intervention. Therefore, it is pertinent to discuss the six conditions pointed out by the Report that must be observed before launching a military intervention. These criteria are ‘right authority, just cause, right intention, last resort, proportional means, and reasonable prospects’ (ICISS, 2001, p.32).
However, the Constitutive Act went as far as to include war crimes and serious threat to legitimate order. War crimes, as part of mass atrocities and grave human rights violations, fall as a ‘just cause’ pursuant to the report. ‘Serious threat to legitimate order’ has no any international or regional definition and may be predisposed to abuse. Baimu and Sturman argue that this circumstance is not compatible with the other conditions enshrined under the Constitutive Act (2003).
Moreover, they stress that this condition focuses on state security and is a deviation from the humanized sovereignty concept (ibid). Prevention of mass atrocities is meant for the protection of the people from human rights violation, but prevention of ‘serious threat to legitimate order’ is inscribed to uphold state security. It may be difficult to imagine human rights and human secuAccording to the ICISS report, the UN Security rity without the prevalence of legitimate order. Council should grant a prior authorization for However, its seriousness may not warrant overthe intervention. This is a controversial point riding the non-intervention principle. of the concept of intervention. Despite the UN Charter and Commission empowerment of the The other element that the Commission incorpoSecurity Council to authorise a military inter- rated in its report is ‘right intention’. The primavention, the Constitutive Act, and the Protocol ry aim of the intervention should be to stop the Relating to the Establishment of the Peace and causes that triggered the intervention. IntervenSecurity Council of the AU do not envisage a tion should be tailored ‘to halt or avert human prior authorization. sufferings’ (ICISS, 2001, p.35). The occupation of territory and the overthrow of the regime may be In the ICISS report, ethnic cleansing and genoright measures to lighten the human sufferings, cide are the causes that may trigger an override but they should not be the primary intentions of of the non-intervention principle. The circumthe intervention. Restoring peace and stability is stances that are envisaged by the Constitutive another ‘right intention’ of an intervention unAct are genocide, crimes against humanity, war der the AU framework. crimes, and serious threat to legitimate order. This shows a certain dissonance between the re- The other criteria of the Commission dictate the port and the Constitutive Act. The crimes of eth- utilisation of military intervention as a last renic cleansing fall under crimes against humanity sort. Since military intervention is controversial and genocide as defined by the Statutes of the In- and a serious breach of state sovereignty, it must ternational Criminal Court and the Internation- be applied as a last option. Though it seems ciral Criminal Tribunal for the former Yugoslavia. cumstances that trigger intervention cannot be 30 66
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averted without military intervention, less intrusive measures must be exhausted before military deployment. Additionally, military intervention is only justified if it is proportional and has a reasonable chance of achieving its aims. 4. Normative and Practical Problems of Intervention Whether the intervention seen by the Constitutive Act is compatible with the UN Charter is a controversial point. Article 2, (4) of the UN Charter prohibits â€˜threat or use of force against the territorial integrity and political independence of any the stateâ€™. Contrasting with this provision, the Constitutive Act allows the use of force against any member state to prevent or stop mass atrocities or to restore peace and stability. Ostensibly, these points are not compatible. However, some commentators argue that the intervention envisaged by Article 4, letter (h) is not directed against the territorial integrity or political independence of the state, but rather to prevent mass atrocities or threat to legitimate order (Kuwali, 2015 and Kindiki, 2003). Therefore, the provision of the Act is not in contrary to the Charter.
curity Council. An intervention triggered by the reasons stipulated in the original Article 4, letter (h) of the Constitutive Act (war crimes, genocide and crimes against humanity) may be compatible with the UN Charter if it is meant for the maintenance of international peace and security and consistent with the purposes, principles of the organ, and authorized by the Security Council. Yet, neither the Constitutive Act nor the Protocol Relating to the Establishment of the Peace and Security Council of the African Union do contemplate an authorization of African Union by the Security Council before engaging in intervention. Kuwali argues that the Peace and Security Council of the AU is complementary to the UN Security Council (ibid).
Therefore, the AU may exceptionally act without authorization if the Security Council is unwilling or unable to show a green light. The latter may legitimatise the intervention ex post facto (after the intervention happened). However, Baimu and Sturman argue that an intervention taking place pursuant to the amended Article 4, letter(h) of the Act may transcend the UN Charter since the serious threat to the legitimate order Kuwali pointed out that the conditions seen of a country may not necessarily result in the disby the original Article 4, letter (h) of the Con- turbance of the international peace and security. stitutive Act (war crime, genocide, and crimes Still there are commentators who argue that inagainst humanity) are peremptory norms that tervention entails a moral duty of third parties to impose a duty on states either to prevent or stop intervene in the domestic affairs of another state their occurrence. Therefore, AUâ€™s intervention to to put an end to mass atrocities (Peters 2009, uphold a peremptory norm may not be against p.14). A moral duty as an exception to authorianother peremptory norm - prohibition of the sation may work for clear mass atrocities, but it threat or use of force. This latter argument may is also amenable to manipulation. Under the Afnot equally work for the condition of intervenrican Union, a moral duty may be an exception tion inserted by way of amending Article 4, letter to authorization for an intervention triggered (h) - to restore peace and stability when a serious by mass atrocities. However, it is still difficult to threat to legitimate order occur. consider a moral duty as an exception for authorThe other normative problem is whether the in- izing an intervention for the prevention of seritervention conceptualised by the Constitutive ous threat to legitimate order. Lack of conceptual Act needs a prior authorization by the UN Se- definition makes it susceptible to abuse. It is also 67
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REFLECTIONS a regression of the concept of sovereignty from but of the people. human to state security. The conditions envisaged by the original Article Besides the conceptual and normative problems, 4, letter (h) of the Constitutive Act (war crime, intervention under the African Union faces genocide, and crimes against humanity) are persome practical impediments. First, an interven- emptory norms that impose a duty on states eition demands a huge cost that goes beyond the ther to prevent or stop their occurrence. Therecapacity of the financially unstable African Un- fore, AU’s intervention to uphold a peremptory ion. Secondly, ‘logistical difficulties’ are another norm may not be against another peremptory impediment that poses a problem for the agree- norm - prohibition of the threat and use of force. ment of the military deployments from different Moreover, states have a moral duty to prevent countries (Kioko, 2003, p.822). Moreover, lack of mass atrocities. These arguments, however, may ‘political will’ that leads to disagreement to pass not equally work for the condition of interventhe decision for an intervention may be another tion inserted by way of amendment of Article 4, problem. letter (h) - a serious threat to legitimate order. 5. Conclusion In the international arena, sovereignty becomes a ‘second-order norm’ and it is not as it used to be. The African Union, too, has revisited the concept of sovereignty. The Constitutive Act of the African Union recognises the right of the Union to intervene in the domestic affairs of states in certain conditions. The circumstances that may prompt interventions are genocide, war crimes, crimes against humanity and serious threat to legitimate order. The Constitutive Act relativized the principle of non-intervention and humanised sovereignty.
Neither the Constitutive Act nor the Protocol Relating to the Establishment of the Peace and Security Council of the AU does foresee an authorization of AU by the UNSC before engaging in an intervention. Nevertheless, there is also a moral duty to prevent or minimise the fallouts of mass atrocities.
Therefore, AU may intervene without authorization or its action may be legitimatised ex-post facto. The inclusion of serious threat to legitimate order as one of the circumstances that may trigger intervention is amount to back-pedaling to the anachronistic concept of sovereignty from human to state security. This circumstance The responsibility to protect entails an obligaalso lacks an agreed upon definition and may be tion on the government to its citizenry and the manipulated to protect the government at the international community. The responsibility to expense of the people. the international community is an erga omnes obligation, which an obligation a state owes to By Henok Gebeyehu the international community as a whole. The huL.L.M in Human Rights, Central European Unimanisation of sovereignty permits to forgo the versity, Budapest, Hungary principle of absolute non- interventionism for the sake of human rights when a state is unwilling or unable to execute its obligations. Therefore, in the contemporaneous world, sovereignty may no more be the shield of the government 30 68
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Emergency Arbitration under ICC and SCC Rules: a comparative study
emergency arbitration, hereinafter EA, is a relatively new tool of the arbitration procedure and, consequently, the research on this topic is scarce. Nevertheless, more and more arbitration institutions continue to adopt this innovative mechanism. Oleksandr Zablotskyi International Chamber of Commerce (hereinafter ICC) and the Arbitration Institution of the Stockholm Chamber of Commerce (hereinafter SCC) have recently updated their rules, which now include EA as well. These respectable arbitration institutions are one of the most influential in Europe and have a high caseload. Both institutions’ rules are considered to be one of the most meticulous on the subject of EA. SCC and ICC also have approximately the same number of cases on EA.
of the ICC and SCC emergency procedures and their comparison, and (3) - exploring the limitations of emergency arbitration. The findings and practical recommendations are summarised in the conclusion. Mr. Michaelson (2014) has noted that historically, there was no procedure for applications upon an emergency basis before the referral to arbitration, or before the formation of the tribunal. Therefore, the applicant had to lodge an application to the local court for the relief, thus often ignoring the arbitration clause.
The first arbitral institution to present a solution for this problem was the ICC. In force since 1990, the Rules established for a Pre-Arbitral Referee Procedure allow parties to apply to a ‘referee’ for urgent provisional measures when difficulties arise in contractual relationships, prior to referral to arbitration, as noted on the ICC website. This is a procedure in many ways different from EA, however its aims are the same. Starting with 2010, most arbitration institutions have enabled EA in This gives an opportunity to compare their the- its modern form. oretical and practical implications for a better The emergency arbitration or ‘emergency prounderstanding of their characteristics. The main ceedings’ as in LCIA Arbitration Rules (2014), objectives of comparing both EA procedures are: ‘emergency relief ’ as in SIAC Arbitration Rules determining whether they have characteristics (2015) or ‘emergency measures’ as in ICC Rules inherent to general EA procedures or some spe(2012) is a special procedural tool in arbitration cial regimes, assessing similarity of their EA prodesigned to provide relief before the constitution cedures, finding main differences between both of the arbitral tribunal. Michael Dunmore (2015) procedures, examining the practical implications notes that an applicant should be able to demonof those differences, and providing recommendastrate the following thresholds in order to seek tions on the use of EA proceedings in general and emergency relief: urgency, at least a prima facie with regards to ICC and SCC. case on the merits, at least to the extent of the reThe general argument of the article commences as lief requested, and some concept of irreparable follows: (1) - a brief introduction of the emergen- harm. cy arbitration, including its history, (2) - analysis Unlike in the standard proceedings, where parties 69
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may employ as many arbitrators as they wish, EA has a sole emergency arbitrator. Mr. Michaelson (2014) describes the general process of emergency arbitration as follows: an emergency arbitrator immediately takes control of the process and very rapidly, in succession, organises the proceeding, issues a scheduling order, obtains submissions from counsel, undertakes a merits hearing if parties opt to, and renders a reasoned award – all within a matter of a couple of weeks. Such general procedure applies for EA`s both under the ICC and SCC Rules. Drafting the EA proceedings in ICC and SCC has involved some of the best international experts in arbitration. In both instances, the drafters have chosen a very detailed procedure with a moderate degree of flexibility. As a result, EA proceedings under the SCC and ICC Rules have deadlines for most steps the parties and the emergency arbitrator of the EA have to make. They range from the appointment of the emergency arbitrator to the delivering of his final decision. The deadlines are imposed in order for the award to be issued sufficiently quickly, so that overall effectiveness of emergency arbitration is observed.
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The award or order of the EA will be ignored under both the SCC and ICC rules in the proceedings of the following arbitration, if such commences afterwards. They also prevent the appointment of the emergency arbitrator in further proceedings related to the case. Such measures were adopted as precaution, made in order to ensure the impartiality of the emergency arbitrator. At the same time, both rules give certain flexibility to the parties when it comes to the challenges of arbitrators and conduct of emergency proceedings. Still, this flexibility is constrained by the deadlines set for the final decision, 5 days in SCC Rules and 15 in ICC Rules. The other major difference between ICC’s and SCC’s EA lies in the scope of their application. Unlike the ICC Rules, SCC Rules provide a retroactive opt-
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out. This is a unique feature of SCC Rules, which enables the use of EA provisions by the arbitration clauses, even before EA was included in the updated version of 2010 SCC Rules (i.e. in the arbitration agreements prior to 2010). Such feature was meant to encourage the use of EAs. According to the data provided by Bateson and Howlett and statistics on the SCC website, both SCC and ICC have approximately the same number of EA cases initiated between 2012 and 2014. However, considering the lower caseload of SCC, the percentage of EA cases is higher under its rules. This fact suggests that retroactive opt-out did achieve its initial aim.
costs of Emergency Arbitration. Under the ICC Rules, the emergency arbiter fixes and apportions the costs of EA proceedings. The SCC Rules have a slightly different provision. According to them, the emergency arbitrator can, but is not obliged to, apportion the costs in the final award, if one of the parties request him to do so.
The other major difference lies in the procedure of termination of the EA. According to Appendix II, Article 9 of the SCC Rules (2010), the EA is terminated when: arbitration is not commenced within 30 days from the date of the emergency decision, or the case is not referred to an Arbitral Tribunal within 90 days from the date of the emergency decision. When it comes to ICC Rules, the President shall terminate the emergency arbitrator proceedings if a Request for Arbitration has not been received by the Secretariat from the applicant within 10 days. In both cases, the applicant has to pay the
The other significant limitation is the inability of the emergency arbitrator to make orders against a third party. There is a a general need to notify the other party and no possibility to prevent it from hiding or harming assets by applying measures against the third party in EA. Thus, the application of EA is further limited. Neither rule can address this limitation, as measures against third parties are contrary to the nature of arbitration.
In general, the main differences between ICC’s and SCC’s EA lie in the scope of application, the time limits for appointment of the arbitrator (24 hours for ICC, 2 days for SCC), challenges to these appointments and the deadline for the final decision (15 days for ICC, 5 days for SCC). Also, the allocation of costs also differs, as well as the In general, SCC Rules on EA are less flexible. They overall costs of the procedure (ICC for US$40,000 specify the language for the request of the applica- [35,646€], SCC for €15,000). tion for the appointment of the emergency arbiThe EA is perceived as having several significant trator. According to Appendix II, Article 4 of the limitations, mostly caused by the nature of arbiSCC Rules, in case of a lack of jurisdiction over tration. The assessment of the ways the SCC and the dispute, the emergency arbitrator cannot be ICC Rules deal with limitations can help demonappointed. The ICC does not include such parstrate their utility. ticular provision. However, ICC rules include the main principles, which are designed to cover the Unlike in traditional litigation, it is mandatory to situations not described in the appendix dedicat- send a notice to the other party in order to initiate ed to EA. Both rules have different time limits for EA. This alerts the other party, giving it time to the challenge of arbitrator: SCC Rules–‘24 hours’ potentially cause the irreparable harm (e.g trans(Appendix II, Article 4, paragraph (3) of the SCC fer the assets to another account). Both the ICC Rules 2010), ICC Rules – ‘3 days’ (Appendix V, and SCC have tight deadlines, 24 and 48 hours reArticle 2, paragraph(1) of the ICC Rules 2012). spectively, in order to avoid such situations.
The biggest issue with the EA lies in the enforceability of the orders of the emergency arbitrator.
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REFLECTIONS The decision of the arbitral tribunal has to be final and binding to qualify for the enforcement under the New York Arbitration Convention. Whether an emergency arbitrator is an arbitral tribunal in the sense of New York Convention and whether its decision is final and binding is questionable. Mr. Dunmore (2015) notes that the emergency arbitrator is usually recognised as arbitral tribunal for the purposes of the Convention. However, the finality and binding nature of his decision is still disputed. The issue has been dealt with in different ways: by interpretation of the norms of UNCITRAL Model Law, understanding of the finality of the awards in terms of the issues they intend to address as noted by Mr. Simsive (2015) or implementation of new legislation, like in Honk Kong. Neither ICC, nor SCC has faced any serious issues with the enforceability to date. A study commissioned by the ICC in 2014 shows that out of the 10 first cases of EA, none has faced any problems with enforceability, though in eight cases an order was issued. The adoption of retroactive opt-out in SCC Rules increases the risks of EA decision not being enforced. The other party can claim that it did not agree to the EA in the arbitration clause and thus is not bound by its decision. However, such situations are purely theoretical and have not occurred in the known practice.
provide the retroactive opt-out, which means that even if the arbitration agreement was concluded prior to January 1, 2010, the parties still have the possibility to use it, provided they satisfy the criteria mentioned above. Though such move brought a more active use of EA under SCC Rules, it is also a risk, as the losing party may try to annul the order, claiming that arbitral tribunal has exceeded its authority. The other major difference is in the deadlines. The ICC Rules provide a more lenient schedule than SCC Rules. The emergency arbitrator has to render the decision in 5 days under SCC, unlike 15 under ICC Rules. At the same time, in both cases the deadline may be extended, when requested by the parties or by the arbitrator. This is a necessary precaution giving time for the emergency arbitrator to issue an impartial decision of good quality, in case one of the parties is trying to prolong the procedure or the case is complex.
Both procedures have a limited practical scope of use. It is not recommended to resort to EA when the opposing party is unlikely to comply with the proceedings due to the unavailability of the ex parte proceedings and is unlikely to comply voluntarily with the emergency arbitrator`s decision due to the problems with the enforcement of the EA order. However, in certain cases, where the Overall, the SCC and ICC Rules on EA have the confidentiality is important and the efficiency of general characteristics of EA provisions in other the only available court is doubtful, the possibility major arbitration institution. Under the SCC and to resort to EA can prove beneficial. ICC Rules, the EA proceedings can be initiated By Oleksandr Zablotskyi only when there is a need for urgency, some concept of irreparable harm and prima facie jurisdic- L.L.M in International and European Union tion. The order has to be rendered within a certain Law, Vilnius University, Lithuania time limit and the emergency arbitrator cannot participate in related arbitration proceedings. At the same time, both rules have certain differences, making them more or less relevant depending on the situation. First of all, SCC Rules 30 72
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SPECIAL GUEST The phenomenon of cross-border healthcare: a key challenge for pharmaceutical practice In this issue, we decided to go beyond the mere borders of law and explore its intersection with other areas, such as medicine and International relations. Therefore, we invited not one, but two authors to publish their works in our magazine. The first article is written by Nicoleta Spînu, a fifth year student at the Faculty of Pharmacy, Iuliu Hațieganu University of Medicine and Pharmacy, in Cluj-Napoca, Romania. Her article explores the impact of EU legislation on national law concerning cross-border healthcare. We hope you will enjoy the read! An important role in the cross-border healthcare is played by pharmacists, through which pharmaceutical activity is ensured, in particular pharmaceutical care. Therefore, community pharmacists are the most accessible healthcare professionals, often being the first ones, from whom the patient seeks advice from. The purpose of the following article is to outline the main aspects of the EU legislation that has had, and still has, a large impact on national law concerning cross-border healthcare.
Health systems remain to be discussed widely
today in terms of quality, efficiency and safety of services provided to patients in the European Union (EU) due to their importance in the current political landscape. Based on the idea of guaranteeing equitable access to EU citizens for medical treatments, EU Member States (MS) appear to establish and to implement a more effective and non-discriminative legal framework.
To begin with, according to the Treaty on the Functioning of the EU (TFEU), a high level of human health protection is ensured in the definition and implementation of all Union policies and activities. Furthermore, the EU encourages cooperation between MS, since the foundation of the community, for the purposes of improving the complementarity of their health services in cross-border areas, with respect to their own healthcare policies. The implications of cross-border healthcare and health insurance was explored in several cases, which involved EU citizens, who had requested for the reimbursement of costs after receiving health assistance in a MS other than
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the MS of affiliation. The reimbursement of costs was mainly discussed in the well-known Kohll - Decker procedure set up by the European Court of Justice (ECJ) and based on the principles of free movement of services and goods (ECJ, Kohll and Decker v. Luxembourg, 1998). The Luxembourg citizens, Mr. Kohll and Mr. Decker had both crossed the borders of Luxembourg for healthcare purposes: Mr. Kohll went to Germany with his daughter for orthodontic treatment and Mr. Decker bought a pair of glasses in Belgium. Subsequently, they asked their health insurance fund to reimburse the costs. In both cases, their health insurer refused, relying on Luxembourg legislation that required prior authorisation in order to obtain reimbursement for cross-border care. The ECJ ruled that a prior authorisation procedure for the reimbursement of cross-border care in another MS was an infringement of the free movement of (economic) services (an orthodontic treatment) and on the free movement of goods (the pair of glasses) (Peeters, 2012). These decisions of the ECJ determined the reflections and debates concerning cross-border healthcare framework across EU and have resulted in current regulations applied to this domain.
The cross-border healthcare Directive The Directive 2011/24/EC on patients’ rights in cross-border healthcare has a tremendous importance and contribution to EU Law. Its aim is to guide the national authority on the harmonisation the domestic framework by establishing rules for facilitating access to safe and highquality cross-border healthcare. ‘Cross-border healthcare’ in this Directive means ‘healthcare provided or prescribed in a MS other than the
MS of affiliation’ (Art. 3e). It gives the right to receive medical care or buy medicines or medical devices in another MS than the one in which the patient is socially insured, as well as the free choice depending on the need, condition, resources without requiring prior authorization from insurance institution from the country of residence.
The mutual recognition of prescriptions In relation to the cross-border medical prescriptions, in the situation when medicinal products are authorised within a MS and have been prescribed in that MS by a member of a regulated health profession, it should be possible for such prescriptions to be medically recognised and for the medicinal products to be dispensed in another MS in which the medicinal products are authorised. The European Commission (EC) adopted the Directive 2012/52/EC laying down measures to facilitate the recognition of medical prescriptions issued in another MS, including non-exhaustive list of elements that had to be found in medical prescriptions. The EU regulations for mutual recognition of medical prescriptions suggest the need for measures that ensure cooperation between health professionals from EU MS: measures to facilitate the correct identification of medicinal products or medical devices prescribed in one MS and dispensed in another, including measures to address patient safety concerns in relation to their substitution in cross-border healthcare where the legislation of the dispensing MS permits such substitution (Art. 10. 2 c). The non-exhaustive list of elements from medical prescriptions allows verifying the authenticity of the prescription and whether it has been prescribed by a health professional enti-
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SPECIAL GUEST tled with this right, applied only to prescriptions intended for the use in another MS. It gives the pharmacist the possibility to assure the patient about reimbursement costs at the return to his home country. At the same time, nothing should prevent MS from having further elements in their prescriptions, as long as this does not prevent prescriptions from other MS that contain the common list of elements from being recognised.
counselling to patients. Furthermore, the speciality of doctors matters as well. For example, the pharmacist can accept to deliver pantoprazole if only the subscription is from a gastroenterologist specialist. The identification of the prescribed product, where applicable is linked with Directive 2012/52/EC that conducts the common name used should be either the International Nonproprietary Name recommended by the World Health Organisation or, if such name does not exist, the usual common name. In contrast, the brand name of a medicinal product should only be used to ensure clear identification of biological medicinal products.
The non-exhaustive list includes four major headings for the authenticity of prescriptions, especially: the identification of the patient by surname, first name, and date of birth. From my point of view, the verification of personal information by the pharmacist should be done In addition, it is also necessary to mention by submitting the patient identity card, as it is pharmaceutical forms, such as tablets, supposithe most easy and accessible way of identity tories, solutions, the concentration, the quanconfirmation. tity, the dosage regimen. Regarding the authentication of the prescripPitfalls and issues concerning pharmaceutition: in the case of patients who are suffering cal practice from a chronic medical illness, the date when the medicines have been obtained for the first Following the idea of patient safety and conperiod of treatment is of great importance to tinuity of care in the cross-border healthcare ensure that the pharmacist does not modify the meaning, a lot of measures for improving this dose regimen and he contributes to the conti- â€˜journeyâ€™ are necessary to be taken into connuity of treatment applied. sideration. The pharmacists can assure about the presence of the required drug on the marThe identification of the prescribing health ket looking for the trade name of the asked professional by surname, first name, profesdrug in the Summary of Product Characterissional qualification, details for direct contact tics (SmPC) that includes the list of countries (email and telephone or fax, the latter both where Marketing Authorisation Holder (MAH) with international prefix), work address (inhas validated the authorisation of medicine. cluding the name of the relevant MS), signaHowever, the lack of medicines on the market ture (written or digital, depending on the mehas various reasons: the result of the importdium chosen for issuing the prescription) will export parallel procedure, epidemics characbe useful in case of confirmation of data, the teristics for specific country, such as endemic discordance with pharmacistsâ€™ considerations, goitre, different therapeutic answers due to for the understanding of abbreviations of the individual genotypes that can create inconvennames of drugs in order to provide adequate ience for the deliver the required medications. 76
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The pharmacist will ensure that the product will be used properly, correctly, and in case of pharmaceutical emergency services, if it is a chronic patient who does not have a prescription, the doses will be dispended in maximum 24 hours. Also, the prescription must not include restrictive drugs with modified release, the new drugs approved on the EU market or drugs used ambulatory, those that can cause serious side effects and require special care through the treatment. The pharmacist can change doses according to SmPC, but not the drug itself, the MAH being responsible for doses regimen in accordance with specific therapeutic indications. In the context of antibiotic resistance, the main role in determining the optimal therapy is patient’s medical history, his social and geographical background. The usual solution is given by the antibiogram - an antibiotic sensitivity test that shows the efficacy of antibiotics, but this is done in specialised laboratories with a minimum variable duration of 24 hours. It can create difficulties in choosing the right therapeutic class. Will it be necessary for the crossborder pharmacists to apply and learn the techniques for doing the antibiogram? If the answer is affirmative, it will be necessary to create an adequate working space, too, which will lead to additional costs. Or is the patient the one responsible for the argument in favour of the need for antibacterial therapy? This is because, in Romania, dispensing antibiotics remains not fully respected in the practice? Counselling becomes more and more a complex process.
they are written only in the country’s language. Due to the complex context of the society we live in, it is not enough for a pharmacist to master pharmaceutical professional skills, in addition to those stipulated in the Code of Ethics and besides proper continuous professional development and life-long learning. Knowing at least one EU official language is a must, especially for pharmacists who had graduated before Romania became an EU member. Organising courses on cross-border healthcare by the College of Pharmacists – the professional organisation of pharmacists – and including a subject in the curriculum of the Faculty of Pharmacy are solutions that would improve the quality of pharmaceutical services, and would also raise the interests of patients outside the residence country.
Provision of information for patients
Another major role in providing cross-border healthcare is played by the relationship between pharmacists and the National Contact Points (NCP). The Article 6 from Directive 2011/24/ EC rules that each MS has to designate one or more NCP for cross-border healthcare with the purpose of providing patients with information regarding the medical service providers, including the information about the terms and conditions of cost repayment and the procedures of evaluation. In Romania, NCP was approved through a Joint Order of the Minister of Health and of the Chairman of the Health Insurance National House (HINH) in March 2014. It was established as a specialised structure subjected to HINH and it is comprised in Currently, there are some MS in which a patient the organizational chart of HINH having no lewho comes from another country and speaks gal personality and with its own web page www. a different language than the national one (in cnas-pnc.ro. Romania, for example) will face difficulties in The European Commission’s Report on the reading and understanding the instructions as
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SPECIAL GUEST application of Directive 2011/24/EC has concluded that some MS have different NCP for inputs and outputs patients, other MS have NCP under the same umbrella. Some NCP are subordinated to the Ministry of Health, others subordinated to the Health Insurance House, and others are independent. At the same time, the survey shows that one in ten patients knows about the existence of NCP and less than 30% of the respondents know that they can get a prescription from their doctor to use in another EU country. NCP is a key factor which needed to be assisted in its contribution to the process of informing patients about their rights. Conclusion To sum up, Directive 2011/24/EC on patientsâ€™ rights in cross-border healthcare gives EU citizens more freedom and empowerment by providing them with more choices and information regarding their healthcare possibilities. It brought much more clarity and transparency
among patients and healthcare professionals, but also emphasises the differences between the health systems of EU MS. Cross-border healthcare transposed at national level has to be respected by all means, from mutual recognition of prescriptions, data privacy protection to non-discriminatory calculation of costs. The pharmaceutical practice is in continuous development, catalysed by health reforms. For situations of dispensing medicines and counselling a patient in cross-border healthcare it has to be written protocols describing steps that are necessary to be taken by pharmacists working in a community pharmacy. Such protocols shall serve as a reference that will facilitate their activity concerning medicines management. An ideal profile of a pharmacist that is involved in such healthcare might be built with the implication of all responsible authorities and stakeholders. By Nicoleta SpĂŽnu
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Anti-Terror Law in the Philippines: A Long Shot Approach The second special article from this issue concerns the intersection of law with politics and international relations in a country far away from Central and Eastern Europe: the Philippines. The author, Neil Y. Pacamalan, an Alumnus of Central European University, Budapest, Hungary, analyses the implications of the anti-terror law in his country. We hope you will enjoy the read!
The rise of Islamic extremism across the world
has sent shockwaves of panic to countries scrambling for deterrence to address this global menace. Responses vary, some countries opted for airstrikes and military actions combined with the revision of national security policies, others like the Philippines with limited military firepower responded by crafting anti-terror laws. This article argues however, that the anti-terror law of the Philippines causes more harm to civil liberties and freedom than secure the national security from violent extremism in Mindanao of Southern Philippines. The succeeding paragraphs describe challenges encountered to prosecute terror suspects amid the myriad of its anti-terror initiatives. This article offers possible solutions to improve governmentâ€™s anti-terror campaign Neil Y. Pacamalan and concludes with an assertion that to degrade groups. violent ideology in Mindanao, the government must invest in building communities that are Following 9/11 terror attacks, Philippines joined the U.S. - led coalition in the global war on termore resilient. ror. Six years into the alliance, Philippine enSince the onset of Muslim rebellion in 70â€™s, the acted Human Security Act 2007 (hereinafter remilitary solution remains the primary strategy ferred to as HSA) to address its own homegrown of the Philippine government to crush separaterror groups in Mindanao with links to JI. In tist movements in Mindanao. As expected in the latest survey, Philippines ranked the elevthe conflict, innocent civilians became collateral enth of 162 countries with the most number of damage and thousands of families are internally terrorism-related cases (Institute for Economics displaced. Unstable security in Muslim-domand Peace, 2015). With spiking incidents of kidinated areas in the region has spawned Islamic napping, involving locals and foreign nationals, radicalization among undeserved youth and some foreign embassies in the country including swelled the number of homegrown extremist 79
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SPECIAL GUEST the United States, have issued travel warnings to 2014). Due to a number of strict procedural retheir citizens to reconsider travelling to the re- quirements, law enforcement has been stymied and many provisions of the law have not been gion (US Embassy Manila, 2014). utilised, according to a report (U.S. State DepartHSA is the primary anti-terrorism law of the ment, 2014). The report cited the notification to Philippines – more than 80 years after the enactsubjects of surveillance before activities can bement of the country’s penal code. HSA has codigin and damages of approximately US $12,000 fied acts of terrorism that provide a maximum for every day of detention if an individual acpenalty of 40 years of imprisonment to the princused of terrorism is ultimately acquitted. The cipal offender. To strengthen its effectiveness, biggest setback ever on government’s anti-terror government complemented this with Terrorism campaign was the infamous ‘Mamapasano masand Financing Prevention and Suppression Act sacre’ in 2014, named after a place in central 2012 that penalizes groups or individuals fundMindanao, that resulted in the death of 41 elite ing terrorism. Since then the Philippines has exmembers of special action force tasked to appreperienced several bombings and attacks to civilhend a Malaysian terrorist, Zulkifli Bin Hir also ians by terror groups from Mindanao, very few known as Marwan, a key figure of JI. have been prosecuted. The rise of ISIS or Daesh in the Middle East and The seemingly poor performance of governthe growing appeal of its violent ideology among ment’s anti-terror campaign can be attributed to marginalized youth in the region has sent shivers the inherent weakness of the statute itself. At the down law enforcement spine. Local authorities onset, HSA was severely chastised of its constituand media have reported on-going ISIS recruittionality by rights advocates - domestic and inment in colleges and communities. The former ternational – with a challenge raised to Supreme president, Fidel Ramos, expressed concern on an Court. Rights advocates asserted that vague intelligence report that 100 Filipinos traveled to definitions and very broad provisions could be Iraq to become jihadists (Philstar, 2014). Fanabused by government. The UN Special Rapporning the fear of local residents was the latest vidteur was so concerned about the many provieo circulated via social media where leaders of sions of HSA that ‘are not in accordance with major terror groups in Mindanao pledged their international human rights standards,’ while a allegiance to ISIS (Rappler, 2016). The present known local human rights defender called on scenario in the region clearly indicates an omithe law as having a chilling effect on freedom of nous sign of uncertainty amid the enforcement the press. of HSA. It seems the law is ineffective. Though it survived the constitutionality test, For the Philippine government to gain the upper HSA is apparently losing the fight against terrorhand against violent extremism, two things have ism. To date, the government could only muster to be done: (a) overhaul HSA to make it more one criminal conviction- as an accessory not as effective, and delete some of its provisions that the principal offender- to a member of Al-Khothreaten fundamental rights, and (b) provide bar Group responsible for the 2008 car explosion concrete alternatives to violent extremism. In in central Mindanao (Department of Justice, 80
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the first approach, the government has to enrich the law with powers to counter the narrative of violent extremism through the internet. ISIS is powerful because of its proficiency in utilizing the social media to control and lure disgruntled individuals to the group. HSA was enacted when Al-Qaeda was still using traditional channels of communication. Some provisions of HSA have clear implications on constitutional rights, which include: Section 17 (Proscription of terrorist organizations, association or group of persons). This power of HSA is repugnant to the constitutional guarantee to association and freedom of expression. Government propensity to crackdown its critics is may likely to invoke HSA against legitimate dissent. In a country where the wheels of justice are moving at glacial speed, survival of suspect organization is at the mercy of state that regulates corporate existence. In this digital age, resorting to court proceedings simply to declare an organization terrorist is an archaic approach. The government can effectively monitor dubious organizations by allowing them to operate publicly. Reminiscent of martial law era decades ago, Section 18 (Period of detention without judicial trial) extended the lawful detention of persons accused of terrorism without judicial trial up to 72 hours, from 36 hours under the current penal statute. Civil rights lawyers are well aware that a lot of things can happen to the safety of an innocent person if the state is given a free hand to decide the fate of its citizens. What the government should do is intensify its intelligence and information gathering, and ramp up its security sector network. Section 50 (Damages of unproven terrorism) is a product of hasty and lopsided legislation that may only
encourage extremist groups to operate with impunity. The clear mandate of this provision is for law enforcer to convict all persons indicted of terrorism, and if unsuccessful, agents of the law be fined with prohibitive damages. This provision dissuades police officers from performing their task for fear that they would drain the resources of the state, should they commit error of judgement in law enforcement. Finally, Section 2 (Declaration of Policy) in relation to Section 53 (Anti-Terrorism Council, hereafter ATC) is an empty incantation. In Section 2, government recognizes the holistic approach to address terrorism, which includes multi-sector participation, and yet the seven-member ATC – the implementing agency and policy-making body – does not have representation from private sector, when local communities are the primary stakeholders of anti-terror campaign. Government should make the composition of ATC more diverse to include representatives with strong community engagement and who have complete understanding of the cultural nuances in strifetorn areas of Mindanao. For the second approach, the government must implement well thought-out alternatives that spur resilient communities. Based on the demographics, militant fighters pursue the path of extremism due to poverty and limited opportunities for better life. To be effective, government programs must be sustainable and inclusive. Women groups have proven to be effective in local peace initiatives, and empowering them to maximizes their full potential will help reduce social tension. It is argued that this is exactly what the government has been doing in Mindanao since the enforcement of HSA. The present administration of President ‘Noynoy’ Aquino has been harping on the gains of his administration to jumpstart inclusive economic growth in 81
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SPECIAL GUEST the countryside. Empirical data, however, provides the contrary. Of the 16 poorest provinces in the country, nine provinces are in Mindanao, (Philippine Senate, 2014) and nine of the top ten illiterate villages, are also found there (The Standard, 2014). Since Islamic extremism is an offshoot of a strict interpretation of Islam, moderate and reformist voices of Muslim community must be included at every stage of community intervention. The use of military and law enforcement personnel to the take the lead in program implementation should be strongly discouraged. Militarization in Mindanao has been in place since the beginning of Mindanao war in 70’s. Any program that reeks of military or police involvement is not a soothing balm to the frayed nerves of residents caught in the conflict. The global security of 21st century is largely defined by the surge of Islamic extremism. The emergence of ISIS or Daesh - the self-declared caliphate of Islamic world – as the most vicious jihadist organization now occupying large swathes of territory in Syria and Iraq, has caused tremendous strain on the resources and attention of western countries and their allies determined to stem the flow of their citizens streaming into the Middle East to fight for ISIS. In today’s race to global jihad, ISIS or Daesh is leading the pack with its barbaric campaign that draws interest from youths across continents. ISIS terrorist propaganda through social media has found adherents from other extremist groups across the globe including the backwater of Mindanao. The on-going shelling by the U.S.-led coalition on ISIS strongholds provides instructive lessons to national governments that military action is inadequate to address violent ideology.
In Mindanao, violent extremism has been in its midst since the 70’s, and massive militarization has accomplished one thing: mushrooming of more extremist groups. It’s time to rebuild communities ravaged by conflict, amplify moderate voices of Muslims, and understand how to design counter-messaging on terrorism via the internet. The youth champions in the region must be encouraged to get involved in social media to push more information out to counter the narratives of violent extremism. The government can alleviate the plight of its citizens in Mindanao through sustainable development initiatives that harness the region’s agricultural potential, as well as proactive laws. More importantly, for HSA to effective against terrorism, the law must be overhauled and its provisions must consistently adhere to the universal recognition of fundamental rights and freedom. Democracy will not flourish in a hostile environment, and government has to be reminded that a marketplace of ideas is essential to maintaining mutual trust and cooperation in the fight against extremism. By Neil Y. Pacamalan
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INTERNATIONAL FOCUS The inﬂuence of Human Rights Violations on the Extradition Proceedings: Controversies in the Case of Julian Assange
Introduction The interface of human rights and extradition is widely experienced as a domain of ‘tension’ between protective and cooperative functions of international legal assistance. Protective functions are evidently most Vesna Stefanovska important when risk of life or torture of a requested person is at stake (Silvis, 2014). However, in the last decades, human rights started to put barriers for enforcing extradition proceedings. The modern trend to expand human rights and to eliminate traditional barriers to individual standing has been set in and groomed further by an incremental number of general, specific, global, and regional human right instruments and international treaties.
The case of Julian Assange is just a clear example of the tension that exists between human rights and extradition, between the protective function of the human rights over the fugitive i.e. Julian Assange and the process of extradition which should aim to bring Assange to justice before the Swedish authorities. This article will try to explain the influence that human rights have over the procedure of extradition. We should be aware that some of the human rights impose an absolute bar to extradition. In that manner, the issues that exist between human rights and extradition will be explained through the analysis of the case of Julian Assange.
1. The thin line between extradition and human rights Mutual relationships between human rights and extradition are often characterized as ‘tension’ between protective and cooperative functions of international legal assistance. Generally, this problem can be approached and viewed from three perspectives. First, these relationships can be described in the rule-exception terms. Second, it could be argued that only one side sets the goal or the objective while the other has to yield by making necessary concessions. Third, and the most appropriate, the coexistence between the interests, needs and values involved in the international cooperation in criminal matters, on the one hand and the protection of human rights, on the other, should be sought and based on a reasonable compromise which would avoid the critical point beyond which human rights become unbalanced and constitute an obstacle to the cooperation in the fight against crime (ibid). The goals of extradition and human rights are completely different in context of their purposes and achievements. The purpose of extradition as an institute of international criminal law is to surrender the fugitive criminal from one state to another in order to serve a sentence or to be subjected on a trial for committed crime, by any means necessary (Rebane, 1995). For the authorities of the state that seeks extradition who look on a fugitive like a criminal offender, according to them he does not have any rights – he lost his rights when he committed a crime and for that purpose justice must be satisfied and the fugitive should be extradited. For human rights standards, the situation is com-
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pletely different, fugitive although is a subject of extradition, he has rights that must be respected, contrary, his extradition to the requested state will be impossible if there are reasonable grounds that the fugitive may be subjected to death penalty or to torture and other degrading treatment or punishment. Under certain conditions, human rights bars to extradition may be overcome if the requested State obtains assurances from the requesting States. This has long been the practice, in particular, where the requested State opposes the death penalty. States are obliged to ensure that international standards of human rights protection and redress for breaches of those rights are applied to all within their jurisdiction, whether that person is a victim of a ‘terrorist’ act or a suspect of such an act (Alegre, 2004). Human rights, however, do not only provide protection for individuals against action by State agents interfering with their rights and freedoms. Human rights law also requires the State to take positive action. The obligation to protect means that, in certain circumstances, the human rights obligations of a State ‘will be fully discharged if individuals are protected by the State, not just against violations of [human] rights by its agents, but also against acts committed by private persons or entities’,including terrorist groups (UNODC, 2014). The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights
2. Facts and legal aspects in the case of Julian Assange The case of Julian Assange has tested not only issues regarding extradition and preservation of human rights, but also the boundaries of the law relating to embassies and diplomatic immunity. Julian Assange became familiar to the world audience when he made international headlines in early 2010 when WikiLeaks published classified U.S military video showing a 2007 attack by Apache helicopters that killed a dozen people in Baghdad, including two Reuter’s news staff. Later that year, the group released over 90.0000 secret documents detailing the U.S – led military campaign in Afghanistan, followed by almost 4000.000 internal U.S military reports detailing operations in Iraq (Ahlander and Faulconbridge, 2016). Subsequently, after releasing these classified materials, US government initiated a criminal investigation, which targeted Mr. Assange with espionage charges. Moreover, the US military has officially labeled Julian Assange as a wanted individual and an ‘enemy of the United States’ (Dorling, 2014).
In 2010, during his trip to Sweden, it was reported that Julian Assange sexually assaulted two Swedish women. After his return to the UK, Swedish prosecutors issued a European Arrest Warrant (EAW) for accounts of rape, sexual molestation and unlawful coercion, demanding Assange’s extradition and return to Sweden in order to proThere is a well known dilemma regarding the ceed with the investigations (Soliman and Gohar, question should state sticks to the obligation to 2015). extradite or to safeguard human rights and which of these two should prevail? This dilemma is quite In June 2012, having lost all appeals against expresent in the case of Julian Assange, mainly be- tradition, Mr. Assange took refuge at the Ecuacause of the opposing views of the UN Working dorian embassy in London and in August 2012, Group on arbitrary detention from one side and the Ecuadorian Government announced it was the position of Great Britain and Sweden from granting ‘asylum’. However, it cannot be denied the other side. the fact that the Constitution of the Republic of Ecuador clearly recognizes the right of asylum 87
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INTERNATIONAL FOCUS and its extradition laws prevent the extradition of any person whose life or safety could suffer as a result of extradition. Thus, Ecuador maintains that it is not in violation of the Extradition Treaty between the UK and itself, given that it regards Assange as a political refugee whom is no longer eligible for extradition. After this, Ecuador sought to justify its action on the grounds of ‘diplomatic asylum’, a controversial theory advanced by some legal scholars and states that, while not addressed by the Vienna Convention, has been said to derive from the inviolate nature of an embassy (Nelson, 2013). Hence, the 1961 Vienna Convention on Diplomatic Relations provides under Article 22 that diplomatic premises such as an embassy are ‘inviolable’. As, such, the embassy cannot be entered by the British authorities without consent of the Ecuadorian authorities.
son to fear persecution on account of their membership of a social group or political belief ’. The treaty also specifies the offences which qualify for extradition and espionage is not one of them (Rees, 2012). 3. Controversies regarding the decision of the UN Working Group on Arbitrary Detention
Julian Assange’s extradition case has been notorious for being one of the most controversial legal and political disputes given the nature of the numerous parties involved. The end of the saga was not Mr. Assange’s hiding in the Ecuadorian embassy in London. In fact, that was the starting point for the real problems for Great Britain and Sweden aimed to realize the EAW concerning the extradition of Julian Assange. On September 2014, Mr. Assange filed a complaint against Sweden and Britain to the UN panel claiming his ‘confinement’ in the embassy amount to illegal The main problem connected with the possible detention. extradition of Julian Assange to Sweden is the The decision of the UN Working Group on Arfear that hypothetically, if Mr. Assange is extrabitrary Detention (WGAD) was not accepted dited, the principle of non-refoulement could be by the United Kingdom and Sweden, having in applied and he could be re-extradited to United mind their official positions regarding the subject States, where he may face a well-founded risk of matter. According to David Cameron, the Prime political persecution and cruel, inhuman and deMinister, Julian Assange remained in the Ecuagrading treatment. This risk is obviously contrary dorian embassy entirely by his choice and that to the absolute human right – prohibition of torstay was in order to avoid lawful arrest because of ture and is prescribed not only in the European the issued EAW by Swedish authorities (Barrett, Convention of Human Rights, UN Convention 2016). against Torture, but also in many other international instruments. The decision of the WGAD was quite controversial and denied by some of the parties involved In fact there are two sides to the argument conand by the law experts. The chairman of the cerning the risk of extradition to US. Argument WGAD considered that the various forms of depclaiming a risk of extradition may draw on declasrivation of liberty, to which Mr. Assange has been sified diplomatic cables, released under freedoms subjected, constitute a form of arbitrary detenof information legislation. Argument against the tion. Hence, his physical integrity and freedom of risk of extradition points out that according to the movement should be respected and he should be Convention on Extradition between the United entitled to an enforceable right to compensation. States and Sweden ‘extradition will be refused for ‘political offences’ or where the suspect has rea- Regarding all the above mentioned, I must agree 88
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that the decision of WGAD is quite unusual and controversial. First of all, the first question that should be asked is: Why Mr. Assange’s stay at the Ecuadorian embassy is considered as arbitrary detention? Mr. Assange voluntarily went there in order to avoid arrest by the British authorities and subsequently to avoid extradition to Sweden. But also, another very important question is: Should Britain extradites Mr. Assange to Sweden if the final destination could be his refoulement to United States to face charges for the WikiLeaks affair and espionage?
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Regarding this matter, my opinion is that extradition rules, supporting conventions and bilateral extradition treaties should be respected completely, but this does not means that the human rights should be violated. If Mr. Assange is extradited to Sweden, British authorities should seek strong diplomatic assurances that Sweden will not, subsequently extradite Mr. Assange to the United States. I am sure that this case will be on a world stage for a long time and the destiny of Mr. Assange will depend of many factors, many variables which are changing from one day to another. Conclusion This article emphasized the human rights issues in extradition proceedings and how human rights started to put barriers for enforcing extradition proceedings. The case of Julian Assange is just one example how human rights can affect extradition and can raise questions which are legally and morally profound. However, the closure of Mr. Assange’s case is not likely to happen soon because there are many legal obstacles and other issues which affect his possible extradition to Sweden. By Vesna Stefanovska PhD candidate - South East European University 89
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INTERNATIONAL FOCUS Applicable law for direct and indirect damage in cross-border motor vehicle accidents
Summary In last few decades, cross-border road traffic has significantly increased. Consequently, the number of accidents where at least one party is not resident of the country of accident has grown proportionally. The visiting victims, i.e. Jasmina Djokić the victims of accidents that occur outside of their state of residence must be aware of the fact that being damaged outside their national borders could influence on the compensation that they could expect. Also, it sometimes differs from the one that they might get if the accident had occurred in their home country (Renda, Schrefler, 2007). Firstly, it has to be emphasized that there is no systematic unification or harmonisation of tort legislation at international or EU level. Discrepancies among legal systems occur in criteria used to ascribe liability for damage, the assessment of damage, persons entitled to claim, limitation period, etc. Consequently, a legal practitioner who has to settle a claim for damage from a cross-border motor vehicle accident is faced with a problem of identification of law that is applicable for determination of legal foundation of damage, persons entitled to claim and kind of damage that is payable. Besides states’ private international law (PIL) acts, there are two supranational legal sources that contain such choice of law rules: (a) Rome 90
II Regulation – Regulation (EC) 864/2007 of the European Parliament and of the Council of July 11, 2007 on the law applicable to non-contractual obligations; (b) The Hague Convention on the Law Applicable to Traffic Accidents – Concluded May 4, 1971. Detailed analysis of each of these regulations will not be subject of this article, but the main emphasis will be on determination of choice of law rules for both direct and indirect damage. At the end, there will be an overview of current European Court of Justice (ECJ) case law and possible influences that it might have on further regulation of this matter. 1. Choice of law rules for damage in traﬃc accident In relation to non-contractual obligations arising out of a tort, according to Rome II, the main rule is that applicable law shall be the law of the country in which the damage occurs, irrespective of both the country in which the event giving rise to the damage occurred and the country(s) where indirect damage occurs (lex loci damni) (Nagy, 2010). Rome II in the Article 28 gives precedence to the Hague Convention in the countries that are signatories of it (Austria, Belgium, Netherland, Luxembourg, France, Latvia, Lithuania, Poland, Slovakia, Slovenia, Spain). Non-EU countries in Europe in which the Hague Convention is in force are Switzerland, Belarus and countries of former Yugoslavia. Other EU countries directly apply Rome II (Graziano, 2008). The main choice of law rule under Hague Convention is lex loci delicti commissi, i.e. the law of the country where the traffic accident occured.
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The main rule for determining the applicable law in both Rome II and Hague Convention is similar, but these two acts have different exceptions of the main principle. The exception of the main rule in Rome II is appliance of the law of the place of common habitual residence of the parties, while Hague Convention provides a completely different subsidiary connecting factor, i.e. applicable law under some conditions has to be designated according to the place of registration of vehicles involved in an accident (Graziano, 2008). The Hague Convention contains numerous exclusions which affect its scope. For exemple, it is not applicable in cases of recourse actions between insurers, claims against public automobile guarantee funds, etc. In these cases, the applicable law should be determined according to provisions of states’ PIL acts (Puljko, Macko, 2010). After the dissolution of Yugoslavia, the Act on the Collision of Laws with Laws of Foreign Nations in Certain Cases is taken over in the legislation of Bosnia and Herzegovina, as well as in Croatia and Serbia, and so far applies unchanged. The general choice of law rule in this PIL act favors the victim in a way that the law applicable may be the law of the place where the harmful act was done or the law of the place where the consequence occurred, depending on which of these two laws is more favorable to the person sustaining damage (Article 28, paragraph 1 of the PIL Act). However, most cases of non-contractual obligations for damages from traffic accidents are excluded from jurisdiction under the PIL Act, due to the fact that the Hague Convention in Bosnia and Herzegovina is in force (Alihodzic, 2014; Saula, 2007). Above mentioned instruments regulate the scope of applicable law similarly: it does not govern only the basis and extent of liability and its grounds for exclusions, but it also considers the nature and assessment of damage (Papet-
tas, 2013). When two vehicles of the same registration collide in a foreign country, then we have different solutions depending on the choice of law rule that is applicable. For instance, a vehicle driven by an Austrian driver crashes with a car driven by a Hungarian driver in an accident ocurred in Austria and both vehicles are registered in Slovakia. In this case, Rome II would designate the law of the country of the accident (Austrian law), while the Hague Convention would designate the law of the country of common registration of vehicles (Slovak law) (Nagy, 2010). The existence of dual regime relating to choice of law in the field of cross border motor vehicle accidents is both confusing and complicated. In further text it will be represented how the applicable law sometimes is not the same for all victims from one accident. 2. Direct and indirect damage By criteria of the persons to whom the tortious action is aimed, the damages could be divided into direct and indirect ones. Direct damage (primary damage) is direct a consequence of an accidental case, and a right on reimbursement has the person to whom the tortious action is pointed, for example, a person who was injured and suffers physical pain. Indirect damage is the loss that suffers another person, e.g. a person who suffers psychical pain because of the death of a close relative. 2.1 Splitting the law under the Hague Convention Hague Convention in the Article 8 states that the applicable law, among others, determines the persons who have suffered damages and who may claim damages in their own right (Armstrong, 1972). This provision deals with the problem of ascertaining whether a person, other than a ’direct victim’’ can obtain a damage suffered as a consequence of an initial one 91
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INTERNATIONAL FOCUS felt by someone else under the same applicable law. The Hague Convention does not give the answer to this question, but its Explanatory Report does so . It states that the rights of the direct victim equalises with the rights of the indirect ones in the field of applicable law. But, it is very doubtful whether the Explanatory Report, as prepairing work for Hague Convention, should be considered as autonomous source of law in interpretation of a rule as the rule itself, or is it only a subsidiary medium for explaining its content (Tomljenovic, 2012).
For example, in the case of a one-vehicle accident that happened in Croatia, in which a passenger died and the vehicle was registered in Slovenia, the Supreme Court of Croatia (VSRH Rev 878/2008-2) decided that the applicable law for material and non-material damage of family members of the deceased should be determined by the main choice of law rule, i.e. the applicable law is Croatian. The Court explained that subsidiary connecting factor (the law of the place of registration) could not be applicable because the family members are not the direct victims explicitely mentioned in Article 4(2) of Hague Convention. Obviously, it is possible that in a case of one-vehicle accident, under the Hague Convention, the applicable law could be splitted to two or more regimes. For instance, the applicable law for compensation of damage of survived passengers could be different than the law for the damage of relatives of the deceased one.
There is no unique attitude in the field of interpretation of Article 4(a), line 2 of Hague Convention, which regulates the applicable law in case of one-vehicle accident when the vehicle is registered in a state other than that where the accident occurred. In such case, the law of the state of registration is applicable to determine liability towards a victim who is a passenger and whose habitual residence is in a state other 2.2 Rome II - Uniformity of applicable rules than that where the accident occurred. This rule regulates that liability towards a passenger in one-vehicle accident should be determined in accordance with the law of the state of registration of vehicle, providing that the passenger’s habitual residence is also in a country different from the country of accident (Puljko, Macko, 2010). Sometimes the courts interpret this rule stricto sensu, i.e. in case of damage due to personal injury of a passenger in one-vehicle accident abroad, they apply the law of the state of registration. But, in case of a passenger’s death in such an accident, the courts do not apply this law for damage of the passenger’s relatives (indirect victims). This is explained by the fact that the successors are not the victims explicitely stated in Article 4 (a) line 2 of the Hague Convention and that the applicable law towards them should be the law of the place of accident (Tomljenovic, 2012). 92
The main principle of Rome II - lex loci damni - poses a question: what exactly the damage is, in order to apply the main rule? Article 2 states that ‘damage shall cover any consequence...’, and article 4(1) excludes indirect consequences as being the base for applicable law (Kunda, 2007). The Final Proposal for Rome II Regulation - COM (2003) 427 says that ‘...the place or places where indirect damage, if any, was sustained are not relevant for determining the applicable law. In the event of a traffic accident, for example, the place of the direct damage is the place where the collision occurs, irrespective of financial or non-material damage sustained in another country.’ In the recent judgement Florin Lazar v Allianz SpA, rendered on December 10, 2015, the ECJ clarified the interpretation of the Article 4(1) of Rome II. The case concerned a traffic ac-
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cident occured in Italy, which resulted in the death of a Romanian citizen woman with habitual residence in Italy. Some close relatives of the victim, not directly involved in the accident, had brought proceedings in Italy for material and non-material damage suffered as a consequence of her death. All the claimants were Romanian citizens and some of them were habitually residents in Italy, others in Romania. The question for the preliminary ruling was whether, in order to determine the applicable law under Rome II, one should look at the damage claimed by the relatives in their own right, or only at the damage suffered by the woman as the direct victim of the accident. The court seized that the damage suffered by close relatives due to death of a person must be clasified as ‘indirect consequences’ of that accident, with meaning of Article 4(1) and that the applicable law is the law of Italy. The Court referred to Article 2, which provides, as it is said above, that damage should cover any consequence arising out of a tort/delict. Also, the Court referred to Recital 17, which states that in case of a personal injury, the country in which the damage occurs should be the country where the injury was sustained. The Court followed the objective set in Recital 16, that fair balance between the interests of the person claimed to be liable and the person sustaining the damage should be achieved by appliance of the law of the country where the direct damage occured.
tim, regardless of the harmful effects suffered elsewhere by third parties, complies with this policy insofar. It prevents the splitting of the governing law with respect to the several issues arising from the same event (Franzina, 2015). 3. Possible solutions The revising clause of Rome II, Article 30predicted that the Commission has the duty to submit to European Parliament the report on appliance of Rome II until August 2011, which should be consisted, among others, of a study on the relation between Rome II and the Hague Convention. The Commision fulfilled this obligation in 2012 by announcing the Note named Choice of Law for Cross Border Road Traffic Accidents. In this document, it has been proposed to amend the current situation by adopting one instrument which provides a clear set of law rules, preferably in the form of an amendment Rome II which would be directly applicable in all EU Member States (Papettas, 2012). Until now, such an instrument has not been adopted and the dual regime of choice of law rules in both EU members and non-EU countries is still in force. It is possible that the newest ECJ case law could influence the EU legislator to do the necessary steps with the intention to unify the choice of law rules for non-contractual obligations in field of compensation of damage in cross-border accidents. This unification would increase protection of victims in traffic accidents in EU and it would avoid possibilities of appliance of different rules for direct damage and indirect consequences in a single accidental case.
By this solution, ECJ confirmed the opinion given by Advocate General Nils Wahl, who stressed that the adoption of the sole connecting factor of the loci damni in Article 4(1) of the Rome II marks the refutation of the theBy Jasmina Djokić ory of ubiquity, since, pursuant to the latter provision, torts are governed by one law. The Postgraduate doctoral study, Faculty of Law in fact of referring exclusively to the place where Zenica, Bosnia and Herzegovina the damage was sustained by the direct vic93
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INTERNATIONAL FOCUS Single market of EU: Keck or not Keck? This is the question
establishment of the single market in 1992 led to another chapter for the European Community. The aim of it was to create more jobs, bring competition for businesses and strengthen Europe in political and economic ways against the challenges of the world economy. The Andrii Hubai idea of free movement of capital, goods, services and workers without internal frontiers or tax duties within the EU became central in achieving this. It is important to note that even though the single market was officially introduced in 1992, it took many years before and big efforts afterwards in order to set up properly functioning single market that would be competitive with other world economies (European Commission statistics website, 2013).
and Mithouard, 1993 case and the changes that have been introduced by the ECJ ruling. Current legislation directly prohibits any restrictions (quantitative or measures having equivalent effect) on imports, as Article 34 of the TFEU states, and exports, found in Article 35 of the TFEU. In most cases, restrictions on imports are more often rather than on exports. This can be explained by the fact that countries try to protect national producers.
The definition of measures having equivalent effect (MHEE) was introduced for the first time by the European Court of Justice in the case of Procureur du Roi v Dassonville (1974) in which Belgian law required certificate of authenticity from the country of origin. This certificate was not required in any other EU country. Moreover, issuing such certificate was a lengthy process. As a result, the court came up with the following definition of MHEE: ‘All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade Nowadays, most of the monetary and tax re- are to be considered as measures having an strictions have been abolished due to obvi- effect equivalent to quantitative restrictions’ ous and direct contradiction in respect to the (Woods & Watson, 2009). existing regulations (e.g. Schottle v Finanzmt Freudenstadt (Case20/76) the imposed tax on This case became the first landmark in solving long-distance road transport was putting in a the problem of application of the TFEU artiprivileged position national car vehicles com- cles concerning MHEE. It was later used in paring to the foreign). Instead, non-monetary all further cases and was named by academrestrictions or measures having an equivalent ics as the ‘Dassonville formula’. Even more, it effect (MHEE) that hinder trade still raise con- became obvious that if the measure can hinder cerns due to the difficulties of identifying such the trade without even making any actual efrestrictions. In this article, we will concentrate fects, it is still considered to be a measure havon the topic of non-monetary restrictions and ing equivalent effect. The next step towards issues concerning the hindrance of trade be- correct application of the TFEU Articles was tween Member States in the light of the Keck made in the key case of ECJ, Rewe-Zentral AG 94
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v Bundesmonopolverwaltung fur Branntwein, 1979 (also known as the Cassis de Dijon case). The German law restricted the sale of spirits (liquor) with the content of alcohol lower than 25%. The explanation for this measure was that it protects the health of the population, because lower content of spirits would lead to alcohol tolerance. The law applied equally for domestic goods and imports, in other words, it was an indistinctly applicable measure, although Germany had no producers who sold spirits with such low alcoholic content. On the other hand, it was common in France to produce and sell such liquor. Even though the law applied equally for imported and domestic goods, The Court of Justice was very strict concerning the Dassonville formula. In this case, it was held that if the product is lawfully made in one of the Member States, then the producer is allowed to sell it without any obstacles in any other country within the common market. However, the matters that remained unclear were the national rules regulating the internal market. In the light of recent cases, concerning, for instance, Sunday trading rules and opening hours, importers started to rely heavily on Article 34 of the TFEU (formerly Article 30 of European Economic Community), trying to challenge any rule that could limit their commercial activity and lower their potential income. Such example was Torfaen BC v B and Q plc (Case 145/88) were retail premises in the UK were opened in violation to the Shops Act 1950 which prohibited such actions. The Court held for defendant since most of these rules were aimed not to limit the importers, but to regulate the market and to make sure that it functions properly. This issue was later raised in the joined cases of ECJ, Keck and Mithouard, 1993, the significance of which being undoubtedly great on the development of the European common market.
In the case of Keck and Mithouard, 1993, the French law had prohibited selling goods at a price lower than the actual purchase price. Its purpose was to prevent â€˜predatory pricingâ€™, in the interest of free trade within the internal market. Mr. Keck and Mr. Mithouard, who were selling goods (coffee and beer) at a lower price were prosecuted for this. They argued that this measure breaches free trade rules within the EU market. Deciding on this case, the ECJ has introduced a whole new approach in interpreting Articles 34-35 of TFEU. The judges tried to define the difference between the laws that regulate the packaging, presentation or composition of the goods (for example Walter Rau Lebensmittelwerke v De Smedt PVBA, 1982 and the Clinique case, 1994, and national selling arrangements that regulate the market only and deal with when, how, where and by whom the goods may be sold. It was explained by the judges that internal rules might influence the free trade between Member States because each law has a certain influence. However, in our case, the law makers had an intention not to limit the importers or hinder the trade but to settle the ground rules on how the market should function, taking in account cultural and historical traditions of each and particular country. A good example of the early Keck case judgment application is Commission v Greece, 1995). Greece (the defendant) had issued a law requiring the processed milk for infants to be sold only in pharmacies. The Commission (the plaintiff ) brought actions against Greece arguing that this law is contrary to Article 34 of TFEU (formerly Article 30 of EEC) which constituted an MHEE. The defence stated that the only commercial freedom which was limited was an obligation for producers to sell processed milk in arranged places in order to protect the health of infants during the criti95
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INTERNATIONAL FOCUS cal first five months of life. This requirement, in the defendant’s opinion, was a national selling arrangement, the principle of which had already been used in the earlier cases (namely the Keck case). In addition, Greece itself did not produce any processed milk at all which showed genuine purpose of the imposed law. The ECJ held for Greece. On this case example, the division between MHEE measures and national selling arrangement within the Keck prospective is clearly notable.
rule is that if the government imposes the dual burden on domestic and imported goods, no extra costs should be paid by the importer in order to comply with these standards. This idea was later summed up in Tommaso Morellato v Comune di Padova,2003) which stated that the requirement of additional packaging, or labelling of imported products falls under Article 34 of TFEU, not for the Keck case judgment. In other words, if the importer needs to pay extra costs or put more effort in order to enter a market of a particular country rather than a national producer, then these measures cannot be considered as a selling arrangement and shall be prohibited by Article 34 of TFEU (Konsumentombudsmannen v Gourmet International Products AB, 2001).
The positive change that has been introduced by the Keck ruling is that the idea of division the trading rules into two categories has made a certain balance. Keeping in mind that EU consists of different countries with completely different backgrounds, the Keck case judgment has given the power to governments in setting 2. Certain contradiction to the Dassonville the ground rules on the internal market in re- formula spect to the cultural, historical and other tradiIf in the Dassonville case the biggest emphations of each and particular country. sis was put on the question of what effects the At the same time, the judgment of the Keck measure causes, later on, in the Keck case the case has brought additional confusion and judges concentrated on the problem of whether need of further explanations in the future. the imposed measure is discriminatory itself. Steiner & Woods (2009) criticise the approach As noted by Horsley (2012), the Keck ruling, mentioned above as a return towards open which is aimed to differentiate between ‘proddiscrimination which ruins the whole idea and uct rules’ and ‘certain selling arrangements’, is purpose of the interstate trade in goods. Ac- generally viewed as an excessively formalistic cording to the summarised academic opinion, approach that requires purely mechanical application. This change of direction shows that the Keck case has raised the following issues: the European Court of Justice is not fully sure 1. The problem of defining the notion of ‘selling about the approach it has taken in regulating arrangements’, which has not been explained the free trade market. This means that further in the joined cases of Keck and Mithouard explanation is required in cases and some unThe selling arrangement itself cannot be uni- solved questions are left to debate versally defined and used for every case. It con- The change that the Keck ruling has brought sists of a number of case judgments that make is seen in retrospect of the problems that it has the idea of this principle clearer and possible raised. It has influenced the whole idea of free to ‘frame’. For example, Verinigte Familiapress trade within the EU. No doubt, this became Zeitungsverlags- und Vertriebs GmbH v Hein- controversial, because it has changed direcrich Bauer Verlag, 1997, in which the general tions, the principles of the free trade and the 96
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The shift of the ECJ from the Keck rule to a completely brand new concept of the market access test is evident. Eleanor Spaventa, (2012) argues that Courts are trying to supplement the overbroad interpretation of both, measures having equivalent effect and national selling arrangements by the universal test of market access which is based on a simple idea and is more narrow and precise. However, these steps are not that confident and straightforward and it is only up for the future cases to show the intentions and ideas the ECJ is trying to develop. If to be more abstract: the good played performance named ‘national selling arrangements’ The academics have been arguing until this is in the intermission. And every spectator is day about the outcome and influence that has waiting for the second part of the play to bebeen brought. This situation will not be solved gin... rapidly at least until the Court of Justice finds By Andrii Hubai a solution that is beneficial for both parties: the opponents and those who are in favour. 4th year LLB, Kyiv National University of Trade The ECJ is trying to achieve this goal by makand Economics, Ukraine ing some progress in the recent cases of ECJ, Commission v Italy, 2009 and ECJ, Aklagaren v Micklesson, 2006. whole approach that has derived from Dassonville and Cassis de Dijon cases. On the one hand, the division of the trading rules into two categories has given EU Member States an instrument that would help manage the internal market of each particular country. On the other hand, the interpretation of ‘national selling arrangements’ has gotten the ECJ into a standstill, not being able to find a clear solution. This is happening because the Keck ruling has led to more confusion, rather than solutions, by not answering what are national selling arrangements in particular.
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INTERNATIONAL FOCUS Prisoners’ right to vote under EU law
be proportionate to the (1) severity of the crime committed and (2) the length of the sentence and (3) take into consideration individual circumstances. As a result, ‘a general, automatic and indiscriminate restriction [...] must be seen as falling outside any acceptable margins of appreciation [...] and as being incompatible with [the right to vote]’ (Hirst v the United Kingdom (No 2), ). How the ECtHR judgment will affect national legislation is yet to be seen, especially in the UK, where recent case Chester and McGeoch sparked a vivacious public and political debate regarding the issue.
Having this in mind, the situation where prisoners are restricted or even permanently banned As a form of punishment for social deviance, from voting, as a result of national legislation, some European jurisdictions impose ancil- gets even more complicated when it comes to lary penalties for serious criminal offences, elections to the European Parliament. which entail the loss of some civic rights, such 2. Charter of Fundamental Rights and its apas the right to vote and to stand for election. plicability Such penalties usually result in the removal of the convicts from electoral lists, preventing The right to vote to the European Parliament them from registering for any elections, conse- is enshrined in Article 39 of the Charter of quently banning them from voting. Neverthe- Fundamental Rights of the European Union less, the right to vote is one of the fundamental (hereinafter ‘the Charter’) which stipulates that rights conferred by Article 3 of Protocol No. 1 ‘every citizen of the Union has the right to vote of European Convention of Human Rights and and to stand as a candidate at elections to the Fundamental Freedoms (hereinafter ‘ECHR’). European Parliament’. A citizen can exercise Striking between the principle of sovereignty that right ‘[…] in the Member State in which he and the protection of this fundamental right, or she resides, under the same conditions as nathe European Court of Human Rights (herein- tionals of that State’. The second paragraph furafter ‘ ECtHR’) has on many occasions assessed ther provides that ‘members of the European whether the restriction of the right to vote is Parliament shall be elected by direct universal acceptable (see for instance Hirst v. UK, Scop- suffrage in a free and secret ballot’. pola v. Italy, Greens and M.T. v. UK, Firth and However, according to Article 51(1) Charter, Others v. UK etc.). The most influential perhaps provisions of the Charter are ‘[...] addressed is the case Hirst v. UK, where the ECtHR adto the Member States only when they are imjudged that the right to vote is not absolute and plementing EU law’ Consequently, in order that limitations may be imposed, however those to establish the jurisdiction of the CJEU and limitations should not be arbitrary and should
1. Taking away the right to vote
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the protection of the Charter, there ought to be a connection between the national legislation in question and EU law, since provisions of the Charter cannot in itself form a basis for such jurisdiction (Åklagaren v Hans Åkerberg Fransson, , Emiliano Torralbo Marcos v Korota SA, Fondo de Garantía Salarial, , para. 30, Thierry Delvigne v Commune de Lesparre-Médoc and Préfet de la Gironde, , para. 27). The CJEU has clarified in Åkerberg with due regard to the Explanations to the Charter that the requirement of ‘implementing EU law’ can be fulfilled when Member States act ‘in the scope of EU law’ (Åklagaren v Hans Åkerberg Fransson, , para. 20). It is further explained in Åkerberg that the situation falls within the scope of EU law whenever the EU law applies. In Åkerberg the CJEU had jurisdiction because Mr. Åkerberg was subject to criminal proceedings due to tax evasion, which the CJEU found to be within the scope of EU law, as there are relevant EU provisions which entail the Member States the obligation to regulate the area. In addition, as the CJEU emphasised that the EU has financial interest on the matter, it can also be deduced from Åkerberg that the CJEU followed the Opinion of AG Villaón (Opinion of Advocate General Villaón in case C-617/10 Åklagaren v Hans Åkerberg Fransson, , point 40), who asserted that the jurisdiction of the CJEU arises from the ‘specific interest of the EU in ensuring that that exercise of public authority accords with/to the interpretation of the fundamental rights by the EU.’
lation for enfranchisement and the right to vote under EU law. 3. Connection to EU law As it follows from the opinion of Advocate General Villalón in Delvigne (Opinion of Advocate General Villalón in case C-650/13 Thierry Delvigne v Commune de Lesparre-Médoc and Préfet de la Gironde, , point 82) the provisions of the Charter generally apply when a criminal offence relates to a situation which is governed by EU law. Considering Mr. Delvigne was imprisoned for murder he, in principle, could not rely on the Charter. However, the fact that he was additionally sanctioned with disenfranchisement, he, among other things, could not vote in the European parliamentary elections, which added an ‘EU dimension’ to his case. The link to EU law arose from the exercise of EU competence in that matter, by way of the Article 14(3) TEU and the 1976 Act, which regulates the right to vote to the European Parliament (Ibidem, point 91). Although the Court did not follow the opinion of Advocate General in whole, it came to the same conclusion (Thierry Delvigne v Commune de LesparreMédoc and Préfet de la Gironde, , paras. 32, 33). Since EU law does not determine expressly and precisely who is entitled to vote to the European Parliament, and it is provided in Article 8 of the 1976 Act that the electoral procedure shall be governed in each Member State by its national provisions, the final definition of persons entitled to vote falls within the competence of each Member State, as the CJEU held in Eman and Sevinger (M. G. Eman and O. B. Sevinger v College van burgemeester en wethouders van Den Haag, , paras. 43, 45) and Spain v. UK (Kingdom of Spain v United Kingdom of Great Britain and Northern Ireland, , paras. 70, 78).
In the light of the aforementioned the right to vote to the European Parliament must therefore fall within the scope of EU law. Defining that connection, however, has proven to be a hard nut to crack, which is why it assumes the central role of every case before the CJEU regarding voting rights. Only recently has the CJEU in the Delvigne case cracked and established a However, in determining the persons entitled permanent connection between national legis99
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INTERNATIONAL FOCUS to vote by national provisions, Member States are in fact exercising a competence of the EU and must therefore exercise that competence in compliance with EU law, namely, they are bound by obligations set out in Article 1(3) of the 1976 Act and Article 14(3) TEU (Thierry Delvigne v Commune de Lesparre-Médoc and Préfet de la Gironde, , para. 32). Consequently, national legislation regarding the right to vote to the European Parliament must be considered as implementing EU within the meaning of Article 51(1) of the Charter, therefore falling within the scope of EU law and giving the CJEU jurisdiction for a preliminary ruling. 4. Does citizenship of EU imply the right to vote? The right to vote is generally regarded as one of the fundamental rights conferred by citizenship. But how is this principle applied in the European Union? Throughout the history of European integration, the EU has constantly strived towards giving life to the European citizenship.
20 TFEU, which defines the rights and duties stemming from it, including the right to vote in Paragraph 2(b), which corresponds to Paragraph 1 of Article 39 of the Charter, stipulating that ‘[...] the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State. ‘This provision, however, is limited only to non-discrimination and equal treatment of EU citizens’ voting rights in Member States other than the Member State of their nationality (Kingdom of Spain v United Kingdom of Great Britain and Northern Ireland, , para. 66). Therefore, persons deprived of the right to vote, as a result of sanctions for criminal offences by a judgement in the Member State of their nationality, cannot invoke this provision in order to be granted protection by the CJEU and the Charter (Thierry Delvigne v Commune de Lesparre-Médoc and Préfet de la Gironde, , para. 43). On the other hand, Article 14(3) TEU stipulates that ‘members of the European Parliament shall be elected for a term of five years by direct universal suffrage in a free and secret ballot.’ This is further enshrined in Article 1(3) of the 1976 Act, as amended by Council Decision 2002/772/EC, Euratom of 25 June 2002 and 23 September 2002, which regulates the electoral procedure. These two provisions reflect the right to vote guaranteed by Paragraph 2 of Article 39 of the Charter, which was found to be applicable in the case Delvigne and forms the basis for the protection of EU citizens’ right to vote even from national provisions in the Member State of nationality. Suddenly, any limitations on the right to vote comes under scrutiny from the CJEU.
In the light of foregoing it can be concluded that by virtue of Article 20 TFEU and Article 14 TEU the right to vote to the European Parliament is inherently attached to the status of EU citizenship. In that regard, the CJEU stipulated in many occasions that ‘[…] citizenship of the EU is destined to be the fundamental status of nationals of the Member States […].’(Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve, , paras. 31 and 32, Carlos Garcia Avello v Belgian State, , paras. 22 and 23, Brian Francis Collins and Secretary of State for Work and Pensions, , para. 61). In Delvigne case, the CJEU has finally gone a step further and explicitly confirmed that the right to vote to the Euro- 4. Justifiable limitation to the right to vote pean Parliament is a freestanding right of EU Nevertheless, can the right to vote to the Eucitizens (Coutts, 2015). ropean Parliament, governed in Article 39 of Citizenship of the EU is established by Article the Charter, preclude Member States from im100
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posing a ban on the right to vote to the EP as a result of a criminal sanction? At the outset, limitations may be imposed on Charter rights, however, according to Article 52(1) of the Charter, the limitations are acceptable only if they are (1) provided by law, (2) respect the essence of rights and freedoms and (3) are proportionate, as they (a) are necessary and (b) genuinely meet the objectives of general interest of the EU or the need to protect rights and freedoms of others (Thierry Delvigne v Commune de Lesparre-Médoc and Préfet de la Gironde, , para. 46).
ceptable margin of appreciation [...] and as being incompatible with [the right to vote]’ (Hirst v the United Kingdom (No 2), , para. 82). Nonetheless, in Delvigne the CJEU took a milder approach as regards the substance of the preliminary question After the analysis regarding the provisions of French national criminal law, which ban the right to vote of some prisoners, they were considered proportionate, mostly due to the fact that the loss of civic rights is imposed only to persons sentenced for a serious crime and that convicts can apply for a lifting of the additional penalty.
In addition, according to the Article 52(3) of the Charter where the Charter contains rights that correspond to rights guaranteed by the ECHR, the meaning and scope of those rights shall be the same as those laid down by the ECHR and the case-law of the ECtHR. Explanations of the Article 52 of the Charter in principle specify which rights from the Charter correspond to the rights in the ECHR. Although Article 39(2) of the Charter is not expressly listed among those rights, it seems that Article 39(2) of the Charter nevertheless correspond to Article 3 of Protocol No. 1 to the ECHR. In any event, the question whether the CJEU should refer to the ECtHR jurisprudence regarding the right to vote, remains open. Namely, in case Delvigne the CJEU did not explicitly refer to the ECtHR case-law.
Nevertheless, in Delvigne, the CJEU used the same standards as the ECtHR adjudicating that the limitations (1) are provided by law, (2) respect the essence of the right and (3) are proportionate, so long as they take into account the nature and gravity of the criminal offence and the duration of the penalty. However, regarding proportionality, the ECtHR has in similar cases taken a different approach, stating that ‘a general, automatic and indiscriminate restriction [...] must be seen as falling outside any ac-
It can be concluded that Member States which ban the right to vote to the European Parliament as a result of a criminal sanction can be subject of the judicial review of the CJEU. Moreover, in case of doubt regarding the interpretation of the European provision national courts are in principle obliged to make a reference for a preliminary ruling on the interpretation of the relevant provisions of the European law. Given the principle of supremacy of the EU law, set in COSTA v. ENEL, Shaw emphasises that there are two important issues that may emerge in that respect (1) the disapplication of the domestic law and the (2) risk of damages for state liability (Shaw, 2015). Finally, the recent development of the CJEU jurisprudence also enlighten some interesting questions connected to the EU participatory citizenship. What does the future hold for the relationship between the EU citizens and the EU? Are we about to witness the rise of EU political conscience and identity? And can a story of a former prisoner from France influence on European (dis)integration? By Maks Mencin and Irma Abdić
LL.B, Faculty of Law, University of Ljubljana, Slovenia 101
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PROFESSIONAL SPOTLIGHT Interview: Monika Prusinowska Assistant Professor at the China-EU School of Law Monika Prusinowska is an Assistant Professor at the China-EU School of Law, a SinoEuropean law school founded by the European Union and the Chinese government. After completing her legal studies in Poland, Monika Prusinowska earned her Master’s degree in Chinese law at the Faculty of Law of Tsinghua University in China and currently she conducts her PhD research on China arbitration issues. She has also collected her experience working as a lawyer in one of the biggest Chinese law firms and as a lecturer at the Trade and Investment Promotion Section of the Embassy of Poland in Beijing.
until now with my PhD research. Lawyr.it: After obtaining your master’s degree in Chinese law, you opted for a job in China. What has influenced you to pursue a career there? M.P.: First of all, I had the chance to meet a number of wonderful scholars and practitioners from both China and abroad, who inspired me to follow a less obvious path in law and to challenge myself when working in the Chinese environment.
I also started to learn the Chinese language (which is a kind of never ending story) and help the Polish embassy in Beijing with introducing the Polish businesses to the basics of Lawyr.it: First of all, we would like to know business law in China. Finally, I successfully more about your professional path. Why applied for a job in a local law firm, which have you chosen a Chinese university (Tsing- was, at that time, targeting Central - Eastern Europe. So I came to the decision of staying hua University) to complete your studies? longer and pursuing a career in China. M.P.: I came to China in 2011 after obtaining my master’s degree in Polish law. I wanted “I like to say that CESL is a conto continue my education, especially in the tinous dialogue between the legal cross-border contexts of law and I thought the Chinese perspective would be a very in- scholars, students and also practiteresting one to take. At that time, China as tioners from both East and West.” an education destination was not as popular as today and I wanted to find my own niche. Lawyr.it: You have been working as a lawyer Therefore, I started to study Chinese law at for the Beijing–based Chinese commercial Tsinghua University and I was the first Polish law firm. What would you say are the most student to complete the program. It was a tre- striking differences when compared to Euromendous adventure of delving into the Chi- pean law firms? nese legal system. And so, I keep doing this M.P.: The most apparent difference is that 104
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PROFESSIONAL SPOTLIGHT Western law firms are better structured and predictable. Therefore, you know what to expect in next three, five and ten years, and what your position in the law firm would be by then. In addition to that, in the West there
“(...) the Chinese law firms have, in general, a shorter tradition of existence and thus, there is a greater mobility of lawyers between the law firms.” is a quite clear division of work between departments, what is sometimes lacking in China. Also, the Chinese law firms have, in general, a shorter tradition of existence and thus, there is a greater mobility of lawyers between the law firms.
Lawyr.it: You currently work as an Assistant Professor at the China-EU School of Law. Could you tell us more about your academic work with the CESL? M.P.: I joined the China-EU School of Law (CESL) in 2013. Since then, I have worked in the position of Assistant Professor. Among my duties are teaching tutorials, especially in the business law module, coaching the CESL Vis Moot Arbitration Team, running the workshops on Introduction to Legal Research and Writing, as well as coordinating the ChinaEU Law open lectures. Lawyr.it: What do you like the most about the Chinese educational system?
M.P.: What I like most is, in general, working with ‘the outcome’ of the Chinese educational system - the Chinese students. They are usuYet, the trends, especially in the context of ally very diligent, respectful and willing to Chinese law and lawyers interacting with learn more. the rest of the world, have been changing. “Parents place huge reliance on For example, over the last few years we have witnessed a couple of big law firms’ mergers these young graduates. Therefore, such as the one between the Chinese law firm their choices are sometimes directKing & Wood and the Australian law firm ed not by what they really want to Mallesons Stephen Jaques, or the one of the Chinese giants Dacheng merging with Den- do but what is expected from them tons. and what is good for the entire That, in addition to Western lawyers pursuing their careers in mainland China, and Chinese lawyers bringing their abroad experience back to China, as well as the internationalisation of a significant number of Chinese lawyers participating in various global law-related events, resulted in an interplay of the cultures of the law firms coming from different backgrounds. 106
Lawyr.it: In your opinion, which are the biggest challenges Chinese students have to face during college years and after graduation? M.P.: What comes to my mind first is the huge competition the students face, especially after graduation. Thus, in my view, the China-EU
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PROFESSIONAL SPOTLIGHT School of Law provides a unique possibility to Chinese law students to achieve a distinctive profile among the thousands of graduates each year.
of professional training programs, academic events, interesing publications on law and research opportunities, including PhD Programme.
Another challenge is the social pressure and high expectations of young people. This generation is a generation of mostly only children. Parents place huge reliance on these young graduates. Therefore, their choices are sometimes directed not by what they really want to do but what is expected from them and what is good for the entire family.
Lawyr.it: How does a foreign collaboration impact the educational system and the teaching methods used by the universities involved?
Lawyr.it: Currently, the China-EU School of Law is the only Sino-foreign law school in China. What does that mean exactly? M.P.: The China-EU School of Law (CESL) is the very first Chinese-foreign law school in China and it was initiated by the People’s Republic of China and the European Union in 2008. CESL is integrated into the China University of Political Science and Law, which is one of China’s leading universities in the field of law. The school is supported by a 16 universities and educational institutions both from China and Europe, with the University of Hamburg being the leading university on the European side.
“Since China has become one of the world’s largest economies and the European Union is one of its largest trade partners, the demand for legal professionals understanding both Chinese as well as European and International law is rising.”
M.P.: I like to say that CESL is a continous dialogue between the legal scholars, students and also practitioners from both East and West. We definitely inspire and learn from each other. In fact, one of the greatest challenges of working in any Sino-foreign context is facing and understanding cultural differences and it requires an open mind, observing and lisSince China has become one of the world’s tening. This also happens with the teaching largest economies and the European Union is methods. one of its largest trade partners, the demand Our teaching staff has tested various solufor legal professionals understanding both tions over the years and has developed a quite Chinese as well as European and Internationunique style of teaching which suits both Chial law is rising. Accordingly, we offer a range nese and foreign students. We encourage parof study programs designed for both Chinese ticipation and interaction. and foreign students. A few weeks ago, for example, within the masIn addition to that, the school offers a variety ter’s programme, we had a moot court course, 107
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PROFESSIONAL SPOTLIGHT where all students were working in mixed groups on an arbitration case under the supervision of tutors coming from five different countries. The winning team came from China and India, and respectively represented civil and common law traditions. The course was closed with detailed, useful feedback from the students and the course supervisor – so that all of us could learn.
“My biggest advice would be to not to be afraid of following less obvious paths, neither in law nor in life – you do not really have to do everything ‘the way everyone does’.”
after graduation conduct their PhD studies abroad, and, also, some of our foreign students decide to stay in China and pursue their academic or professional careers here. Every now and again I happen to meet our graduates during important legal conferences and other events. A few more years ahead, I guess, I will be listening to one of them being a speaker. That is what I hope. Lawyr.it: Last but not least, I would like to ask you our trademark question: if you could give a piece of advice to law students and young professionals, what would it be?
M.P.: My biggest advice would be to not to be afraid of following less obvious paths, neither in law nor in life – you do not really have to Lawyr.it: The CESL’s aim is to form legal pro- do everything ‘the way everyone does’. fessionals who can easily interact with both Be always well prepared, diligent and keep Chinese and Western legal systems. How does a finger on the pulse – the world of law is this comparative perspective on Chinese/EU changing as fast as anything else these days. law influence the professional evolution of The other advice would be to study foreign the students? languages – it can open so many new doors. M.P.: First of all, students become more open to new challenges. I have just finished writing By Alexandra Mureșan a recommendation letter for one of the students, who is applying for the position in one of the world top Dispute Resolution departments. Also, some of our Chinese students
“Every now and again I happen to meet our graduates during important legal conferences and other events. A few more years ahead, I guess, I will be listening to one of them being a speaker. That is what I hope.” 108
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PROFESSIONAL SPOTLIGHT Interview: Ryosuke Shimazu By Guest Interviewer: Ioana Stupariu
Shimazu has worked in investment banking and capital markets for the last 8 years since graduating from the Central European University (CEU), focusing mainly on Sharia-compliant financial transactions in global Islamic finance markets. He is an Associate Director in Debts Capital Markets at Emirates NBD in Dubai, responsible for originating and executing Islamic bond (sukuk) issuances and structuring other Islamic financial transactions such as project finance and syndicated financing in the MENA region and Southeast Asia. Majority-owned by the government of Dubai, Emirates NBD is one of the largest financial institutions in the MENA region and a leading arranger of Islamic bonds globally. Prior to Emirates NBD, he was a Vice President in of Islamic Origination (Asia Pacific) at HSBC Malaysia and an investment banking analyst at Citi Japan.
Ioana Stupariu: How did you end up specialising in Islamic finance and why did you choose this particular topic? Ryosuke Shimazu: I have always been very interested in Philosophy and Religion. In highschool, I had a fantastic philosophy teacher, with whom I used to discuss different topics extensively. I even studied Philosophy and Religion for a year at university in Canada. So my interest in Islamic finance came naturally. At that time, the Middle East economy was booming and if you flipped through newspapers you could find a number of articles about Islamic finance, probably one article every few days, and a lot of people were also talking about it.
“When we go to talk to clients, we have to be very familiar with potential legal issues and how to solve them. We cannot say “we don’t know, we have to ask our lawyers””
Mr. Shimazu completed his undergraduate degree in a joint CEU Business School and Bocconi University (Italy) program in 2008. He holds a graduate degree from the International Centre for Education in Islamic Finance (INCEIF), a postgraduate institution Since my professor from CEU, Tibor Tajti, also established by the central bank of Malaysia had some knowledge about that, I ended up writing my bachelor thesis on Islamic finance and dedicated solely to Islamic finance. under his supervision. That gave me a bit of This interview was taken following a lecture insight into the field and helped me decide to given by Mr. Shimazu at CEU in February work in that industry at some point. Finally, afon Opportunities and Challenges in Islamic ter working for two years in Japan and doing finance and the Central role of law in its fumy master’s in Malaysia in Islamic finance, I ture growth and development by our former eventually applied for a job in the field, and that Managing Editor and current President of is how I ended up moving to Dubai. the Board, Ioana Stupariu. Ioana is currently I.S.: Considering that law and finance intera researcher at CEU, in Budapest.
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sect with each other in many ways, did you finance. ever feel any attraction to the legal field? If so, I.S.: How much do you have to deal with legal in what instances, and why did you decide not matters and how much do you interact with to pursue a career in law? lawyers? R.S.: To be honest, I seriously thought about R.S.: After I moved to Islamic finance from law school in high school, but for various reaconventional finance, what was required from sons I did not end up pursuing that path. One me changed dramatically; before, I was simply of the factors was that I really wanted to move making proposing fund raising opportunities to Europe and studying law would have meant to clients through presentations and meetings. staying back in Canada; another one was that In Islamic finance, there were a lot of legal isafter studying something very abstract for a sues coming from the client side or just from year – Philosophy and Religion – I really wantthe products themselves. When we go to talk ed something more concrete, something practo clients, we have to be very familiar with potical, so I chose business and finance. But my tential legal issues and how to solve them. We interest for law never died; in fact, it helped me cannot say ‘we don’t know, we have to ask our later when I started working in Islamic finance lawyers’. since it required me to get well acquainted with Sharia law. After that, I never really considered Because legal knowledge was so much more going into the legal field since I felt settled in required, I had to constantly make efforts to 110
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PROFESSIONAL SPOTLIGHT equip myself with as much legal knowledge as possible with the help of practitioners and academics. For instance, I had to learn the differences between common law and civil law and study key clauses found in contracts. This is because Islamic finance requires certain additional and unique clauses in its contracts, of which we have to be aware, so we always checked with our lawyers and made sure that we fully understood relevant legal implications before meeting clients. But the problem is that if you do not speak the same language with lawyers it is very hard to make ourselves understood and receive expected advice from them, which can mean extra time and thus extra costs for transactions. I also had to get acquainted with English law, which is often used for cross-border Islamic finance transactions, and the same with the local laws.
Sharia boards. I.S.: So it is basically an additional set of standards to be complied with. R.S.: Exactly. There are some key differences between conventional finance and Islamic finance. Sharia prohibits some types of transactions; for instance, you cannot pay or receive interest for loans.
“There are some key diﬀerences between conventional finance and Islamic finance. Sharia prohibits some types of transactions; for instance, you cannot pay or receive interest for loans.”
I.S.: How is Islamic finance different from the Also, your financial transactions have to be free usual world of finance? from excessive uncertainty, e.g., if you want to sell something the item has to be present there. R.S.: Simply put, Islamic finance is a finanYou cannot sell something that does not exist cial method compliant with Sharia law. As you in the present or that the buyer does not own know, no country officially adopts Sharia law or has not seen. Such terms as the price and in its entirety so each bank has its own board delivery time have to be fixed at the time of of Sharia scholars. Except in certain jurisdiccontract without ambiguity. There are certain tions where official Sharia boards for Islamic exceptions, but this is the general rule. Derivafinance exist at the government level, we ensure tives, for instance, are a bit tricky to structure because they typically involve uncertainty, but “All documents are structured we have our ways to structure derivatives wideand drafted to be compliant with ly accepted as compliant with Sharia.
Sharia law and then we get approval from our respective Sharia boards.”
We are also not supposed to enter into transactions that function like gambling, since that is also prohibited by Sharia law. This makes insurance problematic, and in fact a lot of Sharia scholars consider conventional insurance as Sharia compliance by ourselves with our own akin to gambling. This means that we had to Sharia scholars. All documents are structured structure insurance to be compliant with Sharia and drafted to be compliant with Sharia law law, and the result was the so-called takaful. and then we get approval from our respective 111
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PROFESSIONAL SPOTLIGHT Another set of differences is about the object of transactions. Islamic finance transactions cannot concern several non-permissible items such as pork and alcohol. We, as a bank, cannot give Islamic finance to, for instance, a brewery whose profit comes mainly from selling beers.
the UK, which issued Sukuk in British pounds. So did South Africa, Hong Kong, and Luxembourg. And of course, you have governments of Islamic countries and Muslim-majority countries: Bahrain, Brunei, Indonesia, Kazakhstan, Malaysia, Pakistan, Qatar, UAE and so on.
“Basically, Sharia is an additional regulation or law to abide by. The unique aspect of Sharia in finance is that it is not codified unlike any other law or regulation relevant to financial transactions.”
I.S.: Many experts talk about the growing importance of Islamic finance and Islamic banks in and outside Islamic countries. What could you tell us about it, is this a real phenomenon? If yes, why do you think that is the case?
Apart from these differences that I have briefly highlighted, Islamic finance and conventional finance are almost identical in terms of economics such as terms and risks. The underlying structures are different from Sharia and documentation perspectives, but for banks/investors as well as borrowers/issuers they are almost the same. Basically, Sharia is an additional regulation or law to abide by. The unique aspect of Sharia in finance is that it is not codified unlike any other law or regulation relevant to financial transactions. I.S.: What are the advantages and disadvantages of Islamic finance? R.S.: If you do Islamic finance you need to adopt a different structure, often more complicated, because you need to comply with Sharia law. But then, one big advantage for borrowers or Sukuk issuers is that you have access to Islamic banks and investors who could have a high level of liquidity, depending on market conditions, which makes it easier for them to raise money with favourable terms. In the last few years, some non-Muslim-majority countries have even issued sovereign Islamic bonds; such as
R.S.: There is no consensus about Islamic finance, because everyone has different criteria – what is Islamic, what is not, what is to be included in the financial sector, what is not. Just to give you some statistics, generally, we say that the current size of the Islamic finance sector is somewhere around 1.5 trillion dollars, which is about a bit less than 2% of the total financial assets in the world. It may seem negligible, but in certain countries, like in the Middle East or
“(...)we see some important diﬀerences between the Middle East and Southeast Asia regions in terms of how Sharia law is interpreted and applied to financial transactions. Some transactions approved as Sharia compliant in one country or region might not necessarily be accepted as such in another.” Southeast Asia, the market share is much higher. In many Muslim-majority countries in these regions, Islamic finance accounts for about a quarter of their financial markets. In Indonesia, the market share is about 5% but is increasing
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PROFESSIONAL SPOTLIGHT fast. In general, Islamic finance is growing faster than conventional globally partially because the Muslim population is increasing faster and their economies are growing faster. Also, some governments are encouraging development of this industry too. Malaysia is a good example for this. There the government is supportive, giving some tax incentives. I.S.: Since Islamic finance is influenced mainly by Sharia law, it is highly relevant to discuss how uniform Sharia law is around the globe. R.S.: There are differences in Sharia law seen in Islamic finance. Different interpretation of Sharia is found among different denominations, schools of thoughts, and individual scholars. In practice, we need to be particularly mindful of differences in Sharia when we work on crossborder transactions. Generally speaking, we see some important differences between the Middle East and Southeast Asia regions in terms of how Sharia law is interpreted and applied to financial transactions. Some transactions approved as Sharia compliant in one country or region might not necessarily be accepted as such in another.
students get accustomed to different approaches to law—given that, because of globalization, lawyers are generally expected to be very flexible and adaptable to a variety of types of regulations and legal practice.
“A lawyer’s job is to give services such as advice, so approachability, friendliness, and responsibility towards the client matter a lot to us. Of course, very good legal knowledge is a must, but we like lawyers who are nice to work with as well.” I.S.: Lastly, our trademark question: if you have to give one piece of advice from your experience, what would you recommend to law students?
R.S.: I can only speak from my experience of working with law practitioners in my work. From a bankers’ perspective, what we really appreciate is lawyers with a service-oriented attitude and client-centric approach. A lawyer’s job is to give services such as advice, so apI.S.: Would you recommend law students to proachability, friendliness, and responsibility specialise, or at least get acquainted with Istowards the client matter a lot to us. Of course, lamic finance, and why? very good legal knowledge is a must, but we like R.S.: Definitely. Often international transac- lawyers who are nice to work with as well. tions that happen in Malaysia or in Dubai are Moreover, there might be some lawyers who governed by English law, thus we engage a lot of tend to bombard their clients with loads of inEnglish lawyers or European law firms. Though formation. Although it depends largely on the they are not necessarily specialised in Sharia situation, it is often more helpful if we receive law, they know the specifics and mainly how to well-summarized information and advice esdeal with Islamic finance documents, usually sential for our decision making. We are more because of their experience. However, the marimpressed by a succinct but well-analysed brief ket for Islamic finance is still limited so finding based on their valuable experiences than by a a position dedicated to it might be challenging. hundreds-page report. I would recommend though, in general, law By Ioana Stupariu 113
QUESTION OF THE ISSUE
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QUESTION OF THE ISSUE What qualities do you think a good lawyer should have?
Since its launch, Lawyr.it has been encouraging our readers and supporters to express themselves, not
only by submitting articles, but also by answering diﬀerent questions concerning their preferences, challenges, or achievements. This Question of the Issue section presents what law students and young professionals think on what makes a good lawyer. We kindly thank them for their responses and we invite you to find out more in the following! “First of all, a good lawyer has to be an excellent orator. That by default means that the good lawyer is a literate person, a person who linguistically very well challenges and arguments legal matters. The ability to multitask in this call is very important. What a good lawyer knows is always more than the what the others assume he knows. Good lawyers have good analytical skills, skillful reasoning and logical connection of what others consider seemingly irrelevant. Maybe it is too obvious, but leadership skills often change the course of the profession of great lawyers. That is why these people, good lawyers, are some of the world’s great leaders today.” Berina Bukva Resource Center Coordinator at TACSO VESTA Bosnia and Herzegovina
“In my opinion, the most important quality a lawyer must have is loving his/her job. Being a lawyer can be very frustrating and it often involves incredibly long hours under the pressure of deadlines and if you do not love doing it, you will never find the determination required to be good at it. And then there is being smart, being empathetic with your clients’ needs, having a solid understanding of the businesses/industries your clients operate in and all that jazz, but none of them are more important than having a genuine love for law and lawyering.” Călin Mureșanu Associate at Deloitte Legal - Reff & Asociaţii SCA Bucharest, Romania
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“Firstly, a lawyer is no superhero. He should be the first one who understands his limits. This is the first step in realizing that law is evolving faster than him so he must always keep up the fast pace. Secondly, a lawyer is just a human being. And in life, the most important thing is not working hard and sleeping less every week of the month, but finding a balance between x and y. Nonetheless, a good lawyer is not so hard to find. But being good among other good lawyers makes you an average one. So maybe the solution is not trying to be good in everything, but to excel in a particular niche. You can leave the rest for others.” George Zlati Associate Attorney at Sergiu Bogdan & Asociatii; Adjunct Assistant Professor at Babeș-Bolyai University Cluj-Napoca, Romania
“First of all, I think that depends on the individuality of a person and the situation of course. However, the main skill a good lawyer should have in my opinion is a broad and diverse knowledge. Secondly, he/she should be self-confident and lastly, resourceful in order to adapt to a fast-changing environment and efficiently obtain information.” Ines Delić LLM University of Mostar/MOSTIMUN Project Manager Mostar, Bosnia and Herzegovina
“Before the start of my professional career, I was always trying to be as diligent and active as possible. I thought these qualities will help when I start working. However, when I actually started to work, I discovered that creativity and analytical skills also play a major role. Sometimes, lawyers need to be able to understand what really happened to produce an adequate legal answer to the issue. At the same time, finding nonstandard solutions can also help in difficult situations.” Dmytro Petryshyn Ministry of Justice of Ukraine - Department of Human Rights (International) Kyiv, Ukraine
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QUESTION OF THE ISSUE What qualities do you think a good lawyer should have? “In my opinion, a good lawyer primarily should have good listening and speaking skills. Every lawyer should be willing to hear out what a client has to say, able to „read beetwen the lines“ and figure out the needs of a specific client.This allows them to decide upon the best approach to take in order to achieve the desired outcome. Speaking skills and self confidence are also very important because they allow lawyers to argue convincingly and defend opinions they do not necesarrily agree with. Also what distincts a good lawyer from a not-so-good-one is the will and determination to learn and research every day. A good lawyer has to be ready to obtain information effectively and in timely manner, in order to choose the best approach and strategy for solving legal matters.” Belma Tirović Legal apprentice at Municipality of Old Town Sarajevo Sarajevo, Bosnia and Herzegovina “I believe that the desirable qualities of a lawyer depend on which field of law a person is working at. Certain fields require a high level of empathy and sensibility towards the clients due to the very personal character of the cases, let’s just think about divorce, child custody issues, not to mention criminal cases with murder, sexual abuse or domestic violence. For this reason a lawyer must be completely in control of his/her feelings so that they won’t overthrow professionalism. We are humans, thus it requires a lot of self constraint, consciousness and practice to handle these sensitive cases in a humane, but still professional way. Nevertheless, there are some basic qualities that a lawyer should have in any case. A lawyer should be prudent and very accurate during his/her work. A lawyer has to show confidentiality towards the client and should not regret spending long working hours to work on a case.” Clio Mordivoglia Eötvös Loránd University Budapest, Hungary
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“A good lawyer can only be a person who, before everything else, has a broad and general knowledge. This has to be supported by a knowledge in law and legal matters. However, this is still not enough to have this prestigious title. A good lawyer has years of experience and a young spirit, full of energy and always striving for new knowledge. It is a person whom people easily trust and who has enough understanding for other people. And above all, it has to be a person with enormous dedication, because it takes the maximum effort and will to achieve good results, both in life and in law.” Milica Dulać Office of Attorney General of Republika Srpska Bosnia and Herzegovina
Pin Lean Lau Central European University
“Other than the given requisite legal knowledge and profound passion (which may fade with time) and genuine interest in the law and its instrumentalities, I believe that the qualities that make up a “good” lawyer go beyond statute books, and the law in general: it is of paramount importance, in my opinion that there needs to be a specific skill-set (which, thankfully, can be honed- upon the assumption that a person is willing to devote himself or herself to the lifelong task of staying curious and wanting to learn). Possessing strong oratory or advocacy skills is (in my opinion) 50% of the battle won, together with the relentless exercise of exercising drafting skills and strategic arguments; the ability to be critically evaluative and analytical, regardless of the given circumstances; an uninhibited courage to delve into creative ways of solving complex problems; a tiny hint of idealistic naiveté, compassion and empathy, coupled with the necessary cynicism and real-life view that there is no such thing as perfection, and that there is only the best possible outcomes that can be achieved; tenacity, perseverance, spirit, a mind that can shift between a rock and a hard place and the understanding that decisions that need to be made will always never be easy. ”
“As a student of law in three countries, I believe that the most important characteristics for a good lawyer to have are perseverance and good communication skills. In my opinion, the lawyers also have to be ready to learn something new all the time as legislation and its interpretation constantly change. They have to have a good connection with his clients and their team. Whether he is working in state or private sector, a good lawyer has to do his best to serve for the benefit of others.” Komollidin Halikulov LL.M. International and European Union Law, Vilnius University Vilnius, Lithuania
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DEVIL'S ADVOCATE Should a claim for disgorgement of profits be allowed under Article 74 of the United Nations Convention on Contracts for the International Sale of Goods (CISG)? This issue's advocates: PROs: Anastasiia Filipiuk
Anastasiia graduated from National University ‘Yaroslav the Wise Law Academy of Ukraine’ and is currently studying at an LL.M. Program in International Business Law at Central European University. Prior to joining the CEU, Anastasiia completed various internships both in Ukraine and abroad, and worked as an associate at a recognized Ukrainian law firm in the life sciences and tax practices.
CONs: Olha Hrynkiv Olha received her Bachelor’s Degree in Law from National University ‘Kyiv-Mohyla Academy’ (Ukraine). During her undergraduate studies she participated in several moot court competitions in the WTO law and international commercial arbitration. She also held various internship positions in leading Ukrainian law firms in the field of real estate and contract law. Currently Olha is pursuing her LL.M. in International Business Law at Central European University.
Debate Foreword. Moderator's note Disgorgement of profits is the forced return of the profits that the breaching party gained as a result of their illegal or unethical acts. The CISG, however, does not mention this concept when dealing with damages for breach of contract. The following debate therefore tackles the issue of whether the United Nations Convention on Contracts for the International Sale of Goods can be interpreted in such a way that it should a allow claims for disgorgement of profits. We invite you to read the persuading arguments of our guest writers for this issue, and decide for yourselves which ones were the most convincing. By Radu Șomlea
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Opening Remarks Anastasiia Filipiuk: Imagine a situation: the seller promises goods to one buyer but instead resells them to another buyer for a higher profit. Under the default rules of most contract laws, if sued, the seller will be obliged to compensate the first buyer for its losses. However, this will still leave the seller better off than in case of performing its promise to the first buyer, since the seller gets to keep the price difference. The end result is that the seller gets to profit from its breach. Moreover, the seller will most probably do the same in the next similar situation, since the breach brings him profit. Such situations will not occur if the law of damages for the breach of contract knows the concept of disgorgement of profits.
Olha Hrynkiv: Failure to perform any obligation under the contract entitles an aggrieved party to seek various remedies, including, but not limited to damages under Article 74 of the CISG. Article 74 aims to compensate the aggrieved party for all foreseeable losses and to place it in the same position it would have been in if the contract had been duly performed (Schlechtriem/Schwenzer, 2010).
Disgorging the profits made by the party in breach and granting them to the aggrieved party as damages goes against this aim. Using the disgorgement as a remedy under the CISG is neither supported by the general practice nor compatible with the basic principles underlying the CISG and therefore, should not be allowed for the following Disgorgement refers to the practice of stripping reasons. away of the profits the breaching party gained as a result of its wrongdoing. Disgorgement focuses not Firstly, by definition, Article 74 of the CISG preon the loss of the aggrieved party, but on the gain of cludes the disgorgement of profits (Schmidt-Ahthe breaching party (Hondius/Janssen, 2015). It is a rendts, 2012). The very wording of the article prousual remedy for intellectual property and compe- vides that ‘damages for breach of contract by one tition law offences, as well as for breaches of con- party consist of a sum equal to the loss, including fidentiality and fiduciary duties (Hondius/Janssen, loss of profit, suffered by the other party as a con2015) – i.e. where the amount of loss is difficult or sequence of the breach’ (CISG, 1980). The concluunviable to prove by focus on the losing party. Late- sion one would ultimately draw is that the CISG ly the trend has emerged in domestic legal systems allows an aggrieved party to claim only those supporting disgorgement of profits for breaches of damages which correspond to the loss it suffered. contract (Schlechtriem/Schwenzer, 2010). I argue Imagine a situation where a seller did not perform that the CISG can and should be interpreted to em- its delivery obligation under the contract with a brace disgorgement. buyer but sold the goods to the third party inScholarship differentiates between disgorgement as stead. In this case, the profits gained by the seller a method of calculation of losses (tied to the loss of from the transaction with the third party do not the aggrieved party) and as a remedy per se (appli- constitute the loss to the buyer, since there is no cable irrespective of the loss) (Schwenzer/Hachem/ prima facie link between the two. Therefore, to Kee, 2012; Hondius/Janssen, 2015). In terms of the grant the seller’s profits to the buyer would go former, article 74 CISG (reflecting the rules on cal- against the compensatory character of Article 74 culation of damages) does not specify methods for irrespective of whether the buyer is asking for the calculation of the loss of the aggrieved party. This disgorgement of profits as a method of calculaallows the court or tribunal a wide discretion to tion of damages or as a remedy for the breach of choose a method best suited to the circumstances the contract per se. of each individual case (CISG-AC Opinion No.6, Secondly, the disgorgement of profits bears the
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DEVIL'S ADVOCATE 2006), including a method of disgorgement. Measuring the innocent party’s losses by the breaching party’s gains is ‘possible and necessary’ (Schlechtriem/Schwenzer, 2010, p.1017) in cases where the losses of the aggrieved party are difficult or impossible to prove with conventional methods, e.g. in second-sale cases as described above (Schlechtriem/ Schwenzer, 2010; Schwenzer/Hachem/Kee, 2012). Disgorgement in this context is tied to the existence of the loss and thus stays within the realm of compensatory purpose of damages (Saidov, 2008).
risk of overcompensation. If the aggrieved party suffered no loss or if the sums awarded to it were in excess of actual loss, it would amount to punishing the party in breach for its misconduct. Granting punitive damage, however, is forbidden under the CISG and the general rule is that the award of damages should not put the aggrieved party in a better position than it would have been in if the contract had been properly performed (CISG-AC Opinion No. 6, 2006). Finally, the disgorgement of profits contradicts the principle of mitigating loss. As governed under Article 77, ‘a party who relies on a breach of contract must take such measures as are reasonable in the circumstances to mitigate the loss, including loss of profit, resulting from the breach; [i]f it fails to take such measures, the party in breach may claim a reduction in the damages in the amount by which the loss should have been mitigated’ (CISG, 1980). However, if the disgorgement of profits is allowed and the party could simply request the profits made by the party in breach, it would no longer have an encouragement to mitigate (McCamus, 2003).
As far as disgorgement as a remedy is concerned, the CISG may be interpreted to accommodate it, though this interpretation does present a greater challenge. Admittedly, it goes against the ‘damages as a sum equal to the loss’ adage of article 74 CISG, since damages awarded do not depend on the existence of the loss, and thus may exceed the losses of the aggrieved party. At the same time, the CISG commentators expressly acknowledge that ’[a]gainst the background of the paramount performance principle [i.e. that the party is primarily interested in performance of the contract, and not in economic benefits in lieu of performance] … the general idea that a breach of contract must not pay also has to be upheld under the Convention’ (Schlechtriem/ In light of these considerations, Article 74 of the Schwenzer, 2010, p.1017). The same idea flows from CISG should not cover a claim for the disgorgement of profits. the principle of good faith underlying the CISG. Therefore, the CISG can be interpreted to allow disgorgement. Allowing disgorgement can significantly improve the CISG framework by providing solutions to situations that CISG damages provisions in their current interpretation do not address (e.g. second-sale cases). This will encourage compliance of parties with their contractual obligations, deter ‘profitable’ breaches, and thus will ensure a higher degree of legal certainty for the parties.
Moderator’s Note: Anastasiia starts off by distinguishing between disgorgement of profits as a way of calculating losses and a remedy in itself. She argues, by way of example of a second-sale type of transaction, that disgorgement as means of measuring damages under art. 74 of the CISG is not only possible but necessary. Olha, however, points out that the wording of the said article does not allow disgorgement of profits. Moreover she argues that disgorgement of profits goes against two principles of the Convention i.e. prohibition of punitive damages and the principle of mitigating loss.
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Rebuttal Anastasiia Filipiuk: My opponent raised very convincing arguments in respect of not allowing disgorgement of profits under the CISG. However, all of them can be easily rebutted, I hope, in the similarly convincing manner. Contrary to what my opponent stated, Article 74 CISG does not preclude disgorgement. According to my opponent, claimable damages under the CISG comprise those corresponding to the losses of the aggrieved party. As the matters stand now, this is without a doubt. However, in some cases the behaviour of the breaching party causes significant difficulties or even impossibility for the aggrieved party to calculate its losses by conventional means (e.g. second-sale cases). This should not be a barrier to holding the party liable for its breach (CISG-AC Opinion No. 6, 2006). This is where disgorgement as a method of calculation may fit in: it is presumed for the purposes of calculation of damages that profits made by the party in breach are a good indication of the losses of the aggrieved party (Schmidt-Ahrendts, 2012). A link between gains of the breaching party and losses of the aggrived party is thus ‘engineered’ by necessity in order to ensure that same compensatory purpose of the damages for the aggrieved party that my opponent advocates. As for disgorgement as a remedy, I already admitted in my first submission the difficulty of fitting it within the ‘damages equal to the loss’ rule of Article 74 CISG. However, in my opinion, in certain cases courts and tribunals can and should utilize the principle of good faith to interpret the CISG in a way as not to allow the breaching party to profit from its wrongdoing. Secondly, my opponent argues that disgorgement bears the risk of overcompensation, which is a punishment of the breaching party that is not allowed under the CISG. I argue that this statement is not correct. With respect to disgorgement as a method of calculation, disgorgement simply supplements the conventional methods of loss calculation under the CISG. Its application is still conditioned upon the existence of
Olha Hrynkiv: Law as it is should always be distinguished from law as the parties to a dispute want it to be. My opponent pointed out that in a situation where a seller unlawfully resells the goods to the third party for a higher price and compensates the first buyer for its loss, it will still get to profit from its breach. I would like to highlight that even in this scenario, the profits made by the seller do not correspond to the loss suffered by the first buyer. Neither is it the aim of the CISG to prevent the seller from doing the same in future by punishing it. As I discussed in my opening statement, damage calculation under the CISG does not incorporate penal elements and has a purely compensatory character. Therefore, disgorgement of profits should not be allowed under Article 74 of the CISG either as a method of calculation of damages or as a remedy for a breach of contract. It is widely accepted that a disgorgement claim cannot be granted under Article 74 (Schlechtriem/Schwenzer, 2010). Trends in domestic legal systems should only be considered as a means to interpret the CISG if they represent an established practice. However, disgorgement of profits is anything but a generally established practice. Not only such a claim is prohibited under the national rules in most jurisdictions (Schlechtriem/ Schwenzer, 2010), but the criteria for it are also too different across legal systems (where it is actually allowed) to constitute any uniformity on the issue (Hondius/Janssen, 2015). Consequently, no court has ordered disgorgement in a CISG case to date (Schmidt-Ahrendts, 2012). The primary reasons for this are discussed below. As it was stated by my opponent, Article 74 does not specify methods for calculation of the loss of the aggrieved party. Nevertheless, it is generally admitted that, under Article 74 of the CISG, a concrete calculation method (based on the actual circumstances of each case) must be preferred over an abstract one (based on a fixed formula referring inter alia to party`s in breach profits) (Zeller, 2005; Saidov, 2008). 125
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DEVIL'S ADVOCATE the loss, and therefore it does not go outside of the CISG compensatory framework. As to the disgorgement as a remedy, good faith considerations demand that it be irrelevant whether profit of the breaching party exceeds the aggrieved party’s loss, as long as such profit directly flows from the breach. However, requiring the breaching party to disgorge its ill-gotten profit does not punish it (Hillman, 1995). It merely puts the breaching party in a position it would have been had it performed the contract (Thel/Siegelman, 2010). Thirdly, my opponent contends that disgorgement goes against the principle of mitigating loss under Article 77 CISG. With regards to disgorgement as a method of calculation, this is not true. If one asks to apply such a calculation method, one does not ask the court or tribunal to deviate from the accepted rules on calculation of damages under the CISG. Along with proving its losses, the aggrieved party is still obliged to demonstrate that it took all reasonable measures to keep its losses to a minimum. As for disgorgement as a remedy, indeed, its mechanism is such that it does not require mitigation of losses. However, ‘[w]hy not let the plaintiff be free to accumulate losses after learning of breach because the defendant will not be responsible for paying for them anyway?’ (Roberts, 2008). In this case, the rule on loss mitigation is inapplicable, since a remedy of disgorgement is based on good faith considerations and is not tied to the actual loss of the aggrieved party. To conclude, all of the above proves that the CISG can accomodate disgorgement.
Furthermore, the aggrieved party alone has the burden of proving that it sustained a loss, in order to be entitled to damages resulted from the breach (CISG-AC Opinion No. 6, 2006). The concept of disgorgement, however, would allow the aggrieved party to solely rely on the profits made by the party in breach without proving the extent of its loss and thereby it would unbalance the rules on the burden of proof set forth in the Convention (Sachs, 2003). Anyway, in cases where the amount of loss is difficult or unviable to prove by focus on the aggrieved party, the CISG allows the recourse to abstract calculation of damages (as it is only available under Article 76) based on the difference between the contract price and the current market price. It is therefore neither appropriate nor necessary to refer to disgorgement as to a method of calculation under Article 74 of the CISG. Regard for compensatory character of the CISG also suggests an argument against construing the ambiguous text of Article 74 to permit disgorgement of profits as a remedy for a breach of contract. While acknowledging the importance of the performance principle and the principle of good faith in commercial trade, I would like to clarify that they are not meant to introduce new remedies like disgorgement into the Convention (Zeller, 2005; Schlechtriem/Schwenzer, 2008). This understanding of the CISG`s underlying principles appears to be consistent with the purposes of the Convention and the international practice regarding the rules on damages.
Moderator’s Note: In the rebuttals, Anastasiia tried to refute Olha’s arguments by stating that in cases where it is difficult to calculate the extent of the suffered loss, disgorgement should be used, without the risk of overcompensation seeing that it serves as a tool to establish the extent of the damages. Moreover disgorgement could serve the purpose of not enabling parties to benefit from their breach. In response, Olha argues that this is not the aim of the CISG and shoes that there haven’t been any decisions in favour of disgorgement in any CISG related cases and there isn’t an established practice in domestic cases. For the last part of the debate, read the authors’ conclusions, see which one manages to persuade you the most and then form your own opinion on the matter! 126
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Closing Remarks Anastasiia Filipiuk: If one says that the CISG does not permit disgorgement, one says ‘yes’ to allowing the breaching party to profit from its breach. Moreover, one gives the breaching party the green light to breach again in the future. The ‘second-sale’ example cited above highlights the ‘grey’ areas within the CISG. To deal with them, CISG provisions should be interpreted to allow disgorgement. The wording of Article 74 CISG does not preclude disgorgement as a method of calculation of the aggrieved party’s losses. Conditioned upon the existence of the loss, disgorgement does not alter the CISG damages framework in this case: mitigation rules, for instance, will apply, as usual. Furthermore, good faith and performance principle militate in favour of the CISG adopting disgorgement as a remedy, even though it requires no connection to the aggrieved party’s actual loss. This is in line with the recent trend of recognizing disgorgement in national jurisdictions. Thus, disgorgement will not conflict with, but will rather complement and strengthen the current set of remedies under the CISG. With the disgorgement in its arsenal, the remedies provisions of the CISG will not only better serve the compensatory purpose, but will also promote the parties’ compliance with the contract and deter wrongful behavior.
Olha Hrynkiv: There are strong arguments that Article 74 of the CISG should not be construed so as to permit disgorgement of profits. Article 74 does not refer to the profits made by the party in breach. Instead, its emphasis is solely on the compensation of the loss suffered by the aggrieved party. Disgorgement of profits, however, is inherently non-compensatory. Moreover, it has been characterized as ‘supercompensatory’, or ‘overcompensatory’ damages (DiMatteo, 2015), which are prohibited under the CISG. As a result of this slippery slope, so far there are no precedents which favor a disgorgement claim within the context of the Convention. Neither is it possible to justify disgorgement of profits relying on the performance principle and the principle of good faith. To the contrary, allowing such a claim under Article 74 would be incompatible with CISG`s rules on burden of proof and mitigation of loss. In particular, in order to recover damages for a breach of contract, the aggrieved party should prove that it has suffered a loss as a result of the breach and that it has tried (where possible) to mitigate its loss. To override these rules on the recovery of damages by merely referring to the profits made by the party in breach would mean to disregard the uniform application of the Convention.
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• Commission Directive (EC) December, 22 • SHAW, J. (2015). Prisoner voting: now a matter of EU law. [Blog] EU LAW ANALYSIS. 1969 based on the provisions of Article 33 (7),
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