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Number of results: 9
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Abstract

The Author tries to “think out of the box”, presenting “Sponsalia ex hoc mundo” (“Hand fastening out of this world”). The title reflects the view that the outer space sciences and the sea sciences are analytically separable, but practically interlinked. It might be observed in the context of space technology and satellite technics, a new system of management and government, as well as a new system of law and policy. Nowadays, the outer space infrastructure (the use of artificial Earth satellites for Direct Television Broadcasting, communications, remote sensing, navigation, military missiles) affects infrastructure of our Planet, including maritime infrastructure. There is, therefore, the need for a new face of integrated system of science and practice.

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Authors and Affiliations

Zdzisław Brodecki
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Abstract

This article focuses on the problems of jurisdiction in cross-border civil proceedings concerning an alleged violation of personality rights. There are no specific rules on jurisdiction for such torts in European Union law. In the current case law of the Court of Justice of the European Union (CJEU), Art. 7(2) of the Brussels I bis Regulation is applicable to such disputes. Nevertheless, the authors argue that the CJEU has misinterpreted this article when the claim is based on violation of personality rights, and has thus created a legal chaos in such disputes. The authors analyse the peculiarities of Internet infringements and the locus delicti connecting factor in the case law of the CJEU in this area. The Court has adopted the criterion of ‘centre of interests’ as the major connecting factor to establish international jurisdiction. The authors criticize this approach and argue that it has led to a structural misunderstanding of the infringement of personality rights. Finally, the authors propose a new rule on jurisdiction in cases concerning violation of personality rights, which should be established in the Brussels I bis Regulation to ensure legal certainty and proper international dispute settlement.
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Authors and Affiliations

Marek Świerczyński
1
ORCID: ORCID
Remigijus Jokubauskas
2
ORCID: ORCID

  1. Professor, Cardinal Stefan Wyszyński University (Warsaw)
  2. Associate Professor, Mykolas Romeris University (Vilnius)
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Abstract

This article discusses some recent developments in the US jurisprudence concerning state immunity. Some lower courts’ decisions handed down earlier suggested a more decisive departure from the rigid interpretation of the Foreign Sovereign Immunity Act (FSIA). If the US Supreme Court had accepted this new jurisprudential trend, it would possibly allow for carving out a partial acceptance of a human rights exception. However, the Supreme Court decided otherwise. In the recently handed-down decision in Germany et al. v. Philipp et al., the Justices rejected any innovations, unequivocally maintained the strict interpretation of FSIA §1603(a)(3), and by their direct reference to the International Court of Justice strengthened the existing status quo in international law as well. This note analyzes this decision’s possible consequences at the domestic and international levels. In conclusion, it seeks to place Germany vs. Philipp in a broader context. It suggests that it possibly reflects more general tendencies in the contemporary US jurisprudence, which can impact both the US domestic legal order and international law.
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Authors and Affiliations

Aleksander Gubrynowicz
1
ORCID: ORCID

  1. Assistant Professor (dr. habil.), Faculty of Law and Administration, University of Warsaw
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Abstract

This article examines the consequences of the Court of Justice of the European Union’s (CJEU) ruling in Achmea concerning Investor-State Arbitration (ISA) under intra- EU Bilateral Investment Treaties (BITs) from a treaty law perspective. It begins by briefly setting out the arguments of Advocate General Wathelet and the CJEU supporting their different positions on whether intra-EU BITs ISA clauses are compatible with EU law. The article then proceeds to analyse Achmea’s implications for intra-EU BIT ISA. It concludes that, as a result of the CJEU’s ruling, arbitral tribunals are deprived of their jurisdiction to entertain investors’ claims brought under intra-EU BIT ISA clauses. Finally, the article argues that Achmea’s applicability to cases brought under intra-EU BIT ISA clauses is limited, using the application of EU law as a relevant qualification. In order for an arbitral tribunal to be deprived of its jurisdictional competence as a result of Achmea, it must be entitled to interpret and apply EU law directly or indirectly in determining its jurisdiction.

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Authors and Affiliations

Konstantina Georgaki
Thomas-Nektarios Papanastasiou
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Abstract

The Court of the Eurasian Economic Union was created in 2015 as a judicial organ with jurisdiction over a range of subject matters within the Eurasian Economic Union. It replaced the Court of the Eurasian Economic Community, which operated within the Eurasian Economic Community and its Customs Union (2012-2014). Though the Union become the next step in the integration process of the post-Soviet area, the newly created Court has not been given de jure a successor status. The Court of the Union was set up anew as one of the four institutional bodies in the structure of the Union. It was empowered to settle disputes between the Member States, as well as to consider different types of actions brought by private actors (economic entities only). The interpretative function of the Court was enshrined as “competence on clarification.” Moreover, the Commission, the main executive and regulative organ, was not given locus standi in actions against the Member States to enhance their compliance with the obligations of EAEU law. Preliminary jurisdiction was also cut down as compared to the Court of the Community or other regional integration courts. However, some new functions were given to the Court, and its five years long practice shows a clear tendency to substitute missing powers with those given but in a broader context, as well as its aspirations to play a consolidating role for the legal order of the Union.

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Authors and Affiliations

Tatsiana Mikhaliova
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Abstract

Nairobi International Convention on the Removal of Wrecks came into force on 14th April 2015 and has been ratified by now by over 40 states across the world (among them Australia, China, India, South Africa and most of the EU countries). The convention provides legal framework for action taken by the Coastal States aiming at removal of wrecks posing danger or impediment to navigation, as well as to the marine environment, or damage to the coastline or related interests of one or more States.

The Convention fills the existing legal gap by enabling the States to remove wrecks beyond their territories (as well as within if States decide so). Beside the existing international regulations like Intervention Convention or UNCLOS, the Nairobi Convention clarifies the Costal State’s rights to remove wrecks from its EEZ if they pose a danger for safe navigation or marine environment. The Convention corresponds with mentioned conventions but also equips Coastal States with new legal instruments to deal with hazardous wrecks beyond their territory. The aim of the paper is to analyse the new rights and duties of states, as well as scope of the notion of navigational and environmental threats causes by wrecks. It will refer also to regulatory problems faced by the states implementing the Convention. Even if the Convention is to be applied to territorial sea, its multiple provisions are not. Moreover, the Convention leaves many important aspects unregulated. Those issues will be analysed from the perspective of a country which has not yet ratified the Convention, and will be confronted with the experience from other jurisdictions.

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Authors and Affiliations

Justyna Nawrot
Zuzanna Pepłowska-Dąbrowska
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Abstract

This article examines the meaning and evolution of the practical implementation of the ‘genuine link’ concept over the years since the rise of the flag-of-convenience (FOC) registries in the 1920s. The author notes that while the competition between Flag States become fiercer, the regulations on ship safety, pollution prevention or shipboard working and living conditions are becoming standardized and ubiquitous. By being regulated by international instruments, in effect restricting regulatory powers of Flag States. Likewise, the enforcement of these provisions is becoming internationalized – with the omnipresence of classification societies and introduction of PSC regimes. At the same time, author identifies a lack of adequate regulations in respect of employment of seafarers, most notably wages and social security contributions, both at the national (Flag State) and international level. This legal loophole encourages Port States to introduce local solutions, irrespective of Flag State regulations. Such developments weaken the ‘genuineness’ of the ‘genuine link’ between ship and its Flag State.
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Authors and Affiliations

Paweł Krężel
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Abstract

Among UN human rights treaty bodies that have the competence to examine inter-state communications, only the Committee on the Elimination of Racial Discrimination (CERD) has had the possibility to develop its case law in this regard (as of 2020). One of these cases – submitted by the State of Palestine against Israel – resulted in a controversy arising from the respondent state’s declaration excluding any treaty relations between Palestine and Israel, the latter considering the former “a non-recognized entity.” The present paper analyses the CERD’s decision of 12 December 2019 in which the Committee found that it had jurisdiction to hear the inter-state communication. The author argues that while invocation of the “special character” of human rights obligations constitutes a powerful argument in judicial discourse, this should not lead to (re)opening debates on self-contained regimes and alienating human rights treaties from the norms and principles of general international law. At the same time, there are also valid reasons to perceive the obligations enshrined in the ICERD as being of a specific and erga omnes character.
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Authors and Affiliations

Michał Balcerzak
1
ORCID: ORCID

  1. Associate Professor (dr. hab.), Nicolaus Copernicus University (Toruń, Poland)
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Abstract

Joseph Ratzinger discusses papal primacy in the Church, which is a communio based on the relationship between primacy and collegiality. Therefore, he supports jurisdictional primacy executed not in a monarchical way, but collegially, with the Pope as the head of the college of bishops. Joseph Ratzinger discusses the Petrine primacy in the New Testament, which he considers a starting point for a discussion about the succession of Peter’s office, choosing (via media) between papalism and conciliarism. He, therefore, focuses on the personal aspect of primacy connected with a given person. Moreover, the article discusses the relationship between the papacy and doctrinal infallibility. It also poses the question whether after his renunciation Benedict XVI still retains the charisma of doctrinal infallibility (or authentic orthodoxy) and how this refers to the current Pope Francis.

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Authors and Affiliations

Ks. Krzysztof Góźdź

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