Humanities and Social Sciences

Polish Yearbook of International Law

Content

Polish Yearbook of International Law | 2018 | No XXXVIII |

Download PDF Download RIS Download Bibtex

Abstract

As many as three international disputes containing allegations of infringement of the International Convention on the Elimination of All Forms Racial Discrimination (ICERD) have been brought before the International Court of Justice (ICJ), thus contributing to the number of cases allowing the Court to pronounce itself on the international human rights law. Even though none of the cases invoking violations of ICERD has been (yet) adjudicated on the merits, they have already provided an opportunity to clarify (at least in part) the compromissory clause enshrined in Art. 22 of ICERD, as well as to tackle some other issues related to provisional measures ordered by the Court. This article discusses the ICJ’s approaches to the application of ICERD in the three above-mentioned cases, while posing the question whether indeed the 1965 Convention can be useful as a tool for settling inter-state disputes. The author claims that ICERD and the broad definition of “racial discrimination” set out in its Art. 1 constitute cornerstones for the international protection of human rights, though the recourse to the procedures provided in Art. 22 of ICERD – vital as they are – should not necessarily be perceived as a better alternative to the inter-state procedures and the functions exercised by the UN Committee on the Elimination of Racial Discrimination (CERD).

Go to article

Authors and Affiliations

Michał Balcerzak
Download PDF Download RIS Download Bibtex

Abstract

This article analyses the capacity of the African Charter on Democracy, Elections and Governance to counteract the democratic governance shortfall. It argues that the tangible impact of the treaty on the states’ practice has been limited by various endogenous and exogenous factors. The former are identified as directly linked to content of the document and refer to the accuracy of the drafting. The latter are rooted outside the text and beyond the character of the Charter and include issues relating to the states’ reluctance to ratify the document, certain constitutional constraints undermining implementation on the national level, and the weak international guarantees of enforcement.

Go to article

Authors and Affiliations

Jan Marek Wasiński
Download PDF Download RIS Download Bibtex

Abstract

Given the whole spectrum of doubts and controversies that arise in discussions about laws affecting historical memory (and their subcategory of memory laws), the question of assessing them in the context of international standards of human rights protection – and in particular the European system of human rights protection – is often overlooked. Thus this article focuses on the implications and conditions for introducing memory laws in light of international human rights standards using selected examples of various types of recently-adopted Polish memory laws as case studies. The authors begin with a brief description of the phenomenon of memory laws and the most significant threats that they pose to the protection of international human rights standards. The following sections analyse selected Polish laws affecting historical memory vis-à-vis these standards. The analysis covers non-binding declaratory laws affecting historical memory, and acts that include criminal law sanctions. The article attempts to sketch the circumstances linking laws affecting historical memory with the human rights protection standards, including those entailed both in binding treaties and other instruments of international law.

Go to article

Authors and Affiliations

Aleksandra Gliszczyńska-Grabias
Grażyna Baranowska
Anna Wójcik
Download PDF Download RIS Download Bibtex

Abstract

This article critically evaluates the summary procedure introduced by Protocol No. 14 to the European Convention on Human Rights, adopted within the reform of the European Court of Human Rights system. The summary procedure, now set out in Art. 28(1)b of the Convention, was instituted in order to facilitate expediency and to reduce the case load of the Court. This article argues that while judicial economy is a legitimate goal, the summary procedure under Art. 28(1)b has considerable deficiencies that undermine some of the systemic goals and core values of ECHR law. There is a manifest lack of remedies vis-à-vis the choice of the procedure, choice of applicable law, and no appeals against final decisions rendered in the course of the summary procedure. Notably, the concept of “well-established case-law” seems to be neither clear nor reliable, as evidenced in the cases analysed in the article. These cases, which involve the issue of socially- owned property in Serbia, serve to demonstrate some of the significant errors in interpretation and decision-making which can result from application of the summary procedure.

Go to article

Authors and Affiliations

Sanja Djajić
Rodoljub Etinski
Download PDF Download RIS Download Bibtex

Abstract

This article is an attempt to identify the essence of new positivism, described by Ludwik Ehrlich as a method of interpretation of international law. The evolution of his views on international law is examined with respect to the place of this method from the beginning of 1920s until his retirement in 1961. The article expounds on both the theoretical and methodological aspects of new positivism, according to which judicial decisions should be taken into account in addition to international treaties and customs for the determination of international law. The question of the obligatory force of international law is discussed as being related to the principle of good faith, which is at the core of Ehrlich’s views on international law. The article offers suggestions on how the method of new positivism might be used and what tasks it can fulfil today. It also makes an attempt to critically analyse Ehrlich’s method and to characterize it both in general and in the context of the theory of international law.

Go to article

Authors and Affiliations

Andrii Hachkevych
Download PDF Download RIS Download Bibtex

Abstract

The idea of a Multilateral Investment Court seems to be one of the most prominent initiatives of the “multilateralization” of international investment law during this century. The creation of a new international, permanent court concentrated on settling investor – state disputes is an extraordinary challenge. Possible problems relate not only to the negotiations concerning the organizational and procedural aspects necessary to ensure the efficient operation of this type of body. It is also necessary to take into account the dynamics of the functioning of international adjudication as such, as well as the controversies surrounding the international legal protection of foreign investments.

Go to article

Authors and Affiliations

Łukasz Kaługa
Download PDF Download RIS Download Bibtex

Abstract

This article explores investment protection under Chinese international investment agreements (IIAs), particularly under the China-Poland bilateral investment treaty (BIT). As a state that both imports and exports foreign direct investment, China currently promotes balanced and safeguarded BITs that protect its increasing overseas investments and preserves the necessary space to regulate in the public interest. The Chinese government remains reluctant to be directly involved in investment arbitration as a respondent, while Chinese investors are active in taking advantage of the IIAs’ regime. When compared to China’s recent treaty practice and new developments in global investment governance, the China-Poland BIT is relatively outdated in terms of investment protection, promotion, social clauses, and dispute settlement. In terms of the investment protection effects of BITs, China is seemingly in a more urgent position to update the China-Poland BIT. However, if we evaluate the overall effects of a modernized BIT on investment promotion, regulation, and dispute settlement, an updated China-Poland BIT will fit the interests of both the Polish and Chinese governments. Notwithstanding the on-going negotiation between the EU and China, this article aims, along with presenting the Chinese practice regarding BITs, to describe de lege lata the state of protection offered to Chinese and Polish investors under the China-Poland BIT.

Go to article

Authors and Affiliations

Peng Wang
Maciej Żenkiewicz
Download PDF Download RIS Download Bibtex

Abstract

This article contributes to the growing literature on Art. 7 TEU by showcasing the strong and weak points of this provision in the context of the on-going rule of law backsliding in Hungary and Poland – backsliding which threatens the very fabric of EU constitutionalism. The article presents the general context of the EU’s institutional reactions to the so-called “reforms” in Poland and Hungary, which are aimed at hijacking the state machinery by the political parties in charge. Next it introduces the background of Art. 7 TEU and the hopes the provision was endowed with by its drafters before moving on to analysis of its scope and all the mechanisms made available through this instrument, including the key procedural rules governing their use. The author posits that it may be necessary to put our hopes in alternative instruments and policies to combat the current rule of law backsliding, and the article concludes by outlining three possible scenarios to reverse the backsliding, none of which are (necessarily) connected with Art. 7 as such.

Go to article

Authors and Affiliations

Dimitry Kochenov
Download PDF Download RIS Download Bibtex

Abstract

This article concerns constitutional problems related to the implementation of EU directives seen from both the legal and comparative perspectives. The directives are a source of law which share a number of characteristic features that significantly affect and determine the specificity of Member States’ constitutional review of the directives as well as the legal acts that implement them. The review of the constitutionality of EU directives is carried out in accordance with the provisions of national implementing acts. Member States’ constitutional courts adopt two basic positions in this respect. The first position (adopted by, inter alia, the French Constitutional Council and German Federal Constitutional Court) is based on the assumption of a partial “constitutional immunity” of the act implementing the directive, which results in only a partial control of the constitutionality of the implementing acts, i.e. the acts of national law implementing such directives. The second position, (adopted, explicitly or implicitly by, inter alia, the Austrian Federal Constitutional Court, Czech Constitutional Court, Polish Constitutional Court, Romanian Constitutional Court and Slovak Constitutional Court) concerns the admissibility of a full review of the implementing acts. This leads to the admissibility of an indirect review of the content of the directive if the Court examines the provision as identical in terms of content with an act of EU law. Another issue is related to the application of the EU directives as indirect yardsticks of review. The French Constitutional Council case-law on review of the proper implementation of EU directives represents the canon in this regard. Nonetheless, interesting case studies of further uses of EU directives as indirect yardsticks of review can be found in the case law of other constitutional courts, such as the Belgian Constitutional Court or Spanish Constitutional Court. The research presented in this paper is based on the comparative method. The scope of the analysis covers case law of the constitutional courts of both old and new Member States. It also includes a presentation of recent jurisprudential developments, focusing on the constitutional case-law regarding the Data Retention Directive and the Directive on Combating Terrorism.

Go to article

Authors and Affiliations

Aleksandra Kustra-Rogatka
Download PDF Download RIS Download Bibtex

Abstract

In EU law a lot of attention has recently been paid to personal data protection standards. In parallel to the development of the general EU rules on data protection, the Members States also develop cooperation between law enforcement agencies and create new information exchange possibilities, including the processing of personal data of participants in criminal proceedings. The aim of this article is to analyse whether the personal data of victims of crime are safeguarded according to the standards of the Charter of Fundamental Rights. For this purpose, the author analyses two directives: 2012/29/EU, which regulates minimum standards of victims of crime; and 2016/680/EU (also known as the Law Enforcement Directive), which regulates personal data processing for the purpose of combating crime. Based on the example of the Polish legislation implementing both directives, the author comes to the conclusion that the EU legislation is not fully coherent and leaves too much margin of appreciation to the national legislator. This results in a failure to achieve the basic goals of both directives. The author expects the necessary reflection not only from the national legislator, but also from the European Commission, which should check the correctness of the implementation of the directives, as well as from national courts, which should use all possible measures to ensure that the national law is interpreted in the light of the objectives of the directives.

Go to article

Authors and Affiliations

Agnieszka Grzelak
Download PDF Download RIS Download Bibtex

Abstract

The article provides an overview of the supranational bank resolution regime established under the Single Resolution Mechanism framework. Both the substantive rules governing the resolution process and its procedural requirements are explained. The main focus of the article is the decision-making practice of the Single Resolution Board (SRB), an EU agency responsible for the execution of the resolution framework, which has already intervened in a number of cases in which banks were considered “failing or likely to fail” by the European Central Bank. The article analyses the existing decisions on resolution action in order to establish how the substantive rules on resolution are interpreted by the SRB in its decision-making practice.

Go to article

Authors and Affiliations

Maciej Podgórski
Download PDF Download RIS Download Bibtex

Abstract

The “plain and intelligible language” requirement performs a dual function within the framework of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts. First, it is listed as a requirement for application of the exemption included in Art. 4(2) as regards policing terms relating to the main subject matter of the contract or to the adequacy of the price and remuneration. Second, the “plain and intelligible language” requirement is a general requirement addressed at all consumer contracts executed in writing (Art. 5). This paper examines the boundaries of the precept, and places particular emphasis on the recent developments in both EU and Polish law, where the requirement has been used to imply a host of information duties aimed at enhancing consumers’ capacity to foresee the consequences of the terms that they are assenting to. This apparently novel approach, which has been developing in piecemeal fashion in the CJEU’s ever-expanding case law, may trigger significant consequences in the field of consumer contract law. In some ways, expansion of the substantive scope of the requirement may be said to be motivated by the fact that courts, under Art. 4(2) of Directive 93/13, are unable to subject the adequacy of the price and remuneration against the services or supply of goods received in exchange to the substantive fairness test under Art. 3(1) (examination of terms through the prism of the notions of good faith and significant imbalance in the parties’ rights and obligations to the detriment of the consumer).

Go to article

Authors and Affiliations

Piotr Sitnik
Download PDF Download RIS Download Bibtex

Abstract

This article focuses on mobility of companies in the European Union in the light of the Court of Justice’s judgment in the C-106/16 Polbud – Wykonawstwo sp. z o.o. case. The Court of Justice has once again interpreted the treaty provisions relating to the EU freedom of establishment in the context of cross-border conversion of companies. The in-depth analysis of the case from the substantive law perspective as well as from the conflict-of-law perspective has raised some doubts with regard to the background of the judgment. Therefore, the article assesses whether the cross-border transfer of a seat took place in the Polbud case or the cross-border conversion, or possibly a new company has come into existence. Most of the analysis is aimed at exposing the risks related to the companies’ mobility under the rules adopted in the Polbud judgment, in particular in the absence of respective European and national regulation.

Go to article

Authors and Affiliations

Sylwia Majkowska-Szulc
Arkadiusz Wowerka

Editorial office

Board of Editors
Władysław Czapliński (Editor-in-Chief)
Jan Barcz (Member)
Anna Wyrozumska (Member)
Karolina Wierczyńska (Specialist editor)
Łukasz Gruszczyński (Specialist editor)

 

International editor
Bart M.J. Szewczyk

 

Language editor
James Hartzell

 

Statistical editor
Wojciech Tomaszewski

 

Advisory Board
Maurizio Arcari
Louis Malmond
Jerzy Kranz
Andrzej Mączyński
Ernst-Ulrich Petersmann
Jerzy Poczobut
Pavel Sturma
Vilenas Vadapalas
Roman Wieruszewski
Jerzy Zajadło
Andreas Zimmermann

 

Cover designed by
Bogna Burska

 

Contact

Polish Yearbook of International Law
Instytut Nauk Prawnych PAN
ul. Nowy Świat 72
00-330 Warszawa
e-mail: pyil@inp.pan.pl
tel. 22 826 75 71

http://inp.pan.pl/pyil/

Instructions for authors

Guidelines on the submission of articles to PYIL and the review process

General rules

1. In order to reduce instances of research and publication misconduct, the PYIL staff strictly follows the principles listed below. By submitting an article to PYIL, an author agrees to comply with those principles. The same applies to reviewers upon the acceptance of arequest for review.

2. All submissions should comply with the relevant requirements set outin the document entitled “Information for authors”, which is available on the PYIL’s webpage.

3. Manuscripts need be submitted in Microsoft Word format (any version). Unless specifically indicated otherwise, the deadline for submitting articles is 31 January of each year. The yearly volume of PYIL is normally published between June and July of the same year.

4. Submissions should not exceed 10,000 words (including footnotes), although in exceptional cases PYIL may accept longer works. All submissions should be sufficiently referenced. The Editorial Board assesses manuscripts on a rolling basis. It will consider requests for expedited review in appropriate instances (for example, pending acceptance for publication from another journal).On averageit takes about45 days to complete the evaluation of a text, although in some instances this process may be longer, depending on the availability of reviewers.

5. Manuscripts may besubmitted by e-mail (pyil@inp.pan.pl) or through the ExpressO submission system (https://www.bepress.com/products/expresso/).

6. All reviewed manuscripts are treated confidentially. Members of the Eduitorial Board must not use materials disclosed in a submission for their own research unless the text is published.

7. All submissions are subject to initial verification by the Editorial Board to determine whether they meet basic editorial requirementsand are compatible with the scientific interests of the journal. This assessment also aims at eliminating those papers where research misconduct occurred. If the Editorial Board’s assessmentis positive, submitted articles are sent out to two independent reviewers,who are identified by PYIL’s specialist editors taking into account the rules setout here.

8. The reviewers cannot be affiliated with the institution with which the author is affiliated. The reviewers assess the text based on the double blind-peer review principle, i.e. the name of the author is not revealed to the reviewers nor are the reviewers’ names revealed to the author or the other reviewer. In case of articles submitted by a foreign authorat least one of the reviewers must be affiliated with a foreign institution other than that of the author.

9. Reviews are submitted in written form, which also encompasses electronic and/or e-mail communications. The reviewer must submit his or her review on aReview form provided to the reviewer together with the text for review. A Review form is available on thePYIL’s webpage. The principles governing a review are set forth below.

10. The review should clearly indicate whether, in the reviewer’s opinion, the textshould be published. The reviewer may also indicate changes which should be made to the text prior to its publication. These changes may be noted in the Review form or may be offered in the form of commentaries in the text of the article.

11. The Editorial Board will accept a submitted text if both reviewers recommend publication. In the event the reviewers indicate that changes are necessary, the acceptance of the article is conditional upon the author responding to the suggested changes, either by implementation of the same or offering an explanation why they may be not acceptable to the author, in whole or in part. The Editorial Board may, to the extent it deems necessary and following consultation with the specialist editor(s), send the revised text back to the original reviewers for their further opinion.

12. In the event of receipt of a single negative review, the Editorial Board will decide the issue of publication of the text in consultation with the specialist editor. The Editorial Board may also send the text to a third reviewer. In the event both original reviewers give a negative opinion of asubmitted article, it will be automatically rejected.

13. An author of atext submitted to PYIL is obliged to cooperate with the Editorial Board as well as with reviewers. In particular,an author shall participate in the peer-review process to the extent required to make his/her submission ready for publication. This includes, inter alia, implementation of changes suggested by the reviewers or offering an explanation why such changes, in whole or in part,may be not acceptable toanauthor.

14. Authors are under an obligation to report to the Editorial Board any significant errors in their submissions, whether discovered during the review process or after publication. If significant errors are found after publication, authors agree to either retract the paper or publish a correction/clarification.The detailed procedure for retraction and corrections is included in the document entitled “Information for authors”.

15.Texts already published shall not be accepted,but PYIL does not prohibit parallel submissions. Copyright and licensing information is included in the document entitled “Information for authors”.

Guidelines for reviewers

1. The PYIL Editorial Board requests a professional review of asubmitted article with regard to its scholarly merits.

2. The object of the requested review is todeterminewhether the submitted article meets the scholarly standards for a scientific article of its type. In particular,the reviewer is asked to assess:

a.whether the title of the article is correct and accurately reflects its contents;

b.whether the article is clear and concise (a reviewer may suggest shortening the article or certain parts thereof);

c.whether the conclusions presented by the author are consistent with the data contained in the article;

d.whether the author useda proper methodology;e.whether the article is original and contains new information;

f.whether the article accurately presents the current state of knowledge and research in a given area (including appropriate citations of and referrals to the existing literature).

3. The reviewer is requested to perform his or her review according to the above criteria in an objective and unbiased fashion. In addition,the reviewer is asked to indicate any and all places where, in the reviewer’s opinion, the author violated any norms of fair, diligent, and accurate scientific research (for example, instances of plagiarism). The review should be neutral and objective, internally consistent, and end with a clear conclusion concerning the usefulness of the text for scientific purposes. The reviewer may also suggest amendments to the text, including indicationsof any relevant published work which isnot citedin the text.

4. Although the review process in based on the double blind-peer review principle, reviewers should refuse the review request if they are aware of any conflict of interest that may exist.

5. Reviewers shall notify the Editorial Board if they feel unqualified to conduct a review of a particular submission.

6. Reviewers should complete their reviews within a timeframe specified by the Editorial Board or one of its members.

7. Reviewers must treat the submissions received for review as confidential documents and must not disclose any information about them to anyone other than the Editorial Board.

8. Reviewers must not use materials disclosed in a submission for their own research unless the text is published.

9.The list of the reviewers is published in each volume and on the PYIL’s webpag

Additional information

PYIL indexed in ERIH PLUS

The Polish Yearbook of International Law is pleased to announce that it has been accepted for indexing in the European Reference Index for the Humanities and the Social Sciences (ERIH PLUS). ERIH was initially created by the Science Foundation (ESF), which subsequently transferred the database to the Norwegian Centre for Research Data for the maintenance and operations. The name of the new database is ERIH PLUS.

The inclusion of the Polish Yearbook of International Law in the ERIH PLUS demonstrates our continuous dedication to providing high quality content to our readers.

This page uses 'cookies'. Learn more