Comparative Law Review 2021-02-15T10:38:18+01:00 Editors of "Comparative Law Review" Open Journal Systems <p><span>„</span><span>Comparative Law Review” <strong>(ISSN 0866-9449, e-ISSN 2391-7644) </strong>(„CLR”) is an open access, peer-reviewed and refereed international journal published by the Faculty of Law and Administration at Nicolaus Copernicus University in Toruń (Poland) since 1989 (with some intervals). </span>The scope of „CLR” includes both private and public law, with particular focus on comparative studies. The Editors encourage authors to submit articles and shorter notes that are interdisciplinary in nature and/or analyse a legal problem from a comparative perspective. We particularly welcome proposals elaborating on how the comparative method is applied in domestic and international law-making and jurisprudence. Consequently, we invite original contributions on public international law and EU law. By the same token, we welcome papers dealing with all fields of domestic law, legal theory and philosophy, as well as history of law.</p><span id="result_box" lang="en"><span class="hps"><br class="hps" /></span></span> Erratum – Some Remarks on the Protection of Legitimate Expectations in International Investment Law, in: “Comparative Law Review” (vol. 25) 2021-01-29T15:28:40+01:00 Marcin Kałduński <p>ERRATUM (At the request of the Author)</p><p>The article entitled: “Some Remarks on the Protection of Legitimate Expectations in International Investment Law” by Marcin Kałduński, published in vol. 25 (2019) of the “Comparative Law Review” (pp. 215– –238) should include the following remark in the first footnote (p. 215):</p><p>“The article has been published within the framework of the National Centre of Science’s project entitled «The Protection of Legitimate Expectations in International Investment Law» (Dec. No. DEC-2013/ 09/B/HS5/04127).”</p> 2021-01-10T00:00:00+01:00 Copyright (c) 2021 Comparative Law Review Inducement, Instigation or Assistance to Self-Mutilation in Brazilian Criminal Law – The Limits Between the Basic Offence and the Result-Qualified Offence For Significant and Serious Bodily Injuries 2021-01-29T15:28:33+01:00 Pablo Rodrigo Alflen <p><em>The Brazilian Congress recently enacted a profound modification to Article 122 of the Brazilian Criminal Code, through which it criminalised the conducts of inducement, encouragement, or assistance to self-mutilation. The justification for this was the need to prevent behaviour that encourages young people to practise self-mutilation, a phenomenon manifested worldwide in online social networking groups (so-called “challenges”). In addition to the basic offence contained in Article 122, two types of result-qualified offences were introduced, namely a result-qualified offence for significant and serious bodily injuries (para. 1) and a result-qualified offence for death (para. 2). However, there are no clear limits between the basic offence and the result-qualified offence for significant and serious bodily injuries. In this sense, in this paper I intend to analyse the problem of the scope and limits of the newly introduced basic offence and in its result-qualified offence of para. 1 of Article 122.</em></p> 2021-01-10T00:00:00+01:00 Copyright (c) 2021 Comparative Law Review Cargo Carrier’s Liability in National Maritime Laws – a Comparative Review 2021-01-29T15:28:34+01:00 Patryk Ciok <p><em>The aim of the article is to compare selected national maritime laws, in the area of the cargo carrier’s liability. The author has analyzed the liability regime in the several most important parts of this regime. The connection between the national maritime regulations and the international maritime conventions regulating the carrier’s liability is an important issue. The reason is that the national provisions are often constructed following the example of the international conventions. However, national regulations usually have their legal solutions. This is the reason why the liability regimes which apply to maritime cargo carriers have a lot of differences, even if they have been enacted by states which are parties to the same maritime conventions. In this article, the author attempts to analyze which maritime conventions have had the most significant influence in each maritime law and also to compare each regulation in the selected parts of the liability regime.</em></p> 2021-01-10T00:00:00+01:00 Copyright (c) 2021 Comparative Law Review The Concept of Necessity. Some Remarks 2021-01-29T15:28:35+01:00 Karol Dobrzeniecki <p class="Standard"><em>The article aims to provide a general view of the concept of necessity (la.: necessitas) and its selected manifestations in the legal sphere (theory and practice).</em></p><p class="Standard"><em>The author proves that at the most general level of considerations, the reaction to an emergency always fits in with a specific philosophy of law that conditions the processes of its creation, application and validity. The article mentions several variants of answers to the following fundamental questions: Can the law provide for any exceptions? Should the activity </em><em>−</em><em> which was to deal with a particular threat </em><em>−</em><em> always be grounded in positive law? If not, how should the acts outside the scope of this law be treated? These themes have been present in legal thought for centuries. Within individual areas of law, references to necessity and the state of necessity manifest themselves in different ways. Selected institutions of canon, criminal, constitutional and international law will be provided as examples and discussed later on. As part of a synthetic review of these cases, the similarities and differences in the perception of necessity (state of necessity) and the ways of integrating it into individual legal solutions are presented.</em><em></em></p> 2021-01-29T00:00:00+01:00 Copyright (c) 2021 Comparative Law Review The Legal Regulation of Political Parties in Latin America: Public Funding and Internal Democracy 2021-02-15T10:35:09+01:00 Jorge Gerardo Flores-Díaz <p><em>In this paper I present a comparative analysis of the legal regulation of political parties in Latin America. I study the legislation in force by early-2020 considering two elements: public funding and internal democracy. The results show that all countries in the region grant public funding for political parties, and that in all countries but Brazil the political parties must be internally democratic. Additionally, taking into account characteristics of the regulation not considered in previous studies, this study revealed that in most of the countries there is public funding for parties that must be allocated to political research and training, and that in most of the cases there is a procedure for party members to appeal against the party leaders’ decisions. Finally, I claim that the regulation of parties in the region could improve the parties’ performance as decision makers and straighten the political participation and representation of the citizenship.</em></p> 2021-01-29T00:00:00+01:00 Copyright (c) 2021 Comparative Law Review Criminal Law in Federal States: a Lesson for the EU 2021-01-29T15:28:36+01:00 Arkadiusz Lach <p><em>The article discusses the issue of federalization of criminal law in the UE. The models of federal criminal law legislation are presented with a focus on the US and Australia. Then the author looks at the competences of the EU in the area of criminal law. Recent establishment of the European Public Prosecutor’s Office is given due attention as a step towards federalization of investigation and prosecution. Advantages and disadvantages of having federal system of criminal law are presented. The author is of the opinion that federalization of European criminal law is inevitable, however there are also numerous problems related to the process. Therefore the experience of federal states should be taken into consideration while creating the EU federal or quasi-federal system.</em></p> 2021-01-29T00:00:00+01:00 Copyright (c) 2021 Comparative Law Review Accountability as a Category of Constitutional Law – Terminological Considerations 2021-01-29T15:28:37+01:00 Anna Młynarska-Sobaczewska Jacek Zaleśny <p><em>This text presents the category of accountability, which is well known in the social sciences, in the context of constitutional law institutions as a useful tool for reflecting on the development of the taking/giving of an account by reporting to the entity that entrusted the constitutional law institutions with their function. The article argues that accountability can be a pivotal category in at least three dimensions: 1) for the implementation of the principle of the democratic entrustment of power within the obtained mandate; 2) the division of powers and the system of mutual entrustment and settlement of their performance, as well as 3) accounting for competencies entrusted to public administration. The text presents the features of accountability in the system of the division of powers, with the indication of key problems in this area, and briefly presents the institutions of constitutional law that can be treated as serving the implementation of accountability.</em></p> 2021-01-21T00:00:00+01:00 Copyright (c) 2021 Comparative Law Review Business and Human Rights in Times of Global Emergencies: Comparative Perspective 2021-01-29T15:55:49+01:00 Olena Uvarova <p><em>This article provides an overview of the key principles of the state's fulfilmentt of the positive obligation to protect human rights from violations by business during the crisis caused by COVID 19: balancing the need to ensure public health and human rights protection; balancing the competing rights of non-state actors with taking into account the concept of the right to security as freedom from fear and freedom from want; implementation of the international human rights law requirement on restriction of human rights, including the derogation from international human rights obligations. The second part of the article is an overview of the results of a survey on the implementation by various countries around the world of the obligation to protect human rights from business violations during COVID 19. The purpose of the survey was to summarize the information about different countries obtained according to the proposed criteria to identify the main regulatory models that states use to fulfil their obligation to protect human rights from business violations in time of COVID 19.</em></p> 2021-01-12T00:00:00+01:00 Copyright (c) 2021 Comparative Law Review The Right to be Forgotten in Post-Google Spain Case Law: an Example of Legal Interpretivism in Action? 2021-02-15T10:36:31+01:00 Carsten M. Wulff <p><em>Recent judgments by the European Court of Justice and the Federal Constitutional Court of Germany have helped to clarify the scope of the Right to be forgotten. This article addresses these judgments and highlights the path the Right to be forgotten has taken since the Google Spain case. The author asserts that the Right to be forgotten is a good example of legal interpretivism in action, as the judgments have developed and transformed the right in ways that Google Spain and the General Data Protection Regulation could not have foreseen. The element of time gained prominence in the role of balancing and is highlighted as an example of policy shaping conducted by the Courts. The article concludes with an analysis of blockchain as a next potential battleground for the Right to be forgotten and provides an outlook on how the Courts might handle issues related to this, in line with the legal interpretivist school.</em></p> 2021-01-10T00:00:00+01:00 Copyright (c) 2021 Comparative Law Review Some Reflections on Regulating Professional Sports in Integration Associations: a Sphere of Autonomy or an Object of the Union Law Regulation? 2021-01-29T15:29:47+01:00 Larisa I. Zakharova Timur Melnik <p><em>The regulation of relations in the field of sports is characterized by the presence of the considerable rule-making powers of sports federations that ensure the development of a particular sport, which is a manifestation of such a phenomenon as the autonomy of sport. States have to take into account this parallel normative reality. The issue of sport autonomy is gaining a new dimension in connection with the emergence of interstate integration associations, as there is a need to determine the relationship between the law of integration associations and the normative order established by sports federations, both national and international. The law of integration associations as interpreted by their judicial institutions plays a significant role in defining the concept of sport autonomy, determining the scope of rule-making powers of sports federations and the boundaries of state regulation in the field of sports. First of all, this influence can be traced in the field of labour law. In many respects the decisions of the courts of such integration associations as the European Union (EU) and the Eurasian Economic Union (EAEU) shaped the modern approaches to the content of the legal model of regulating the work of foreign athletes, taking into consideration such important principles as the freedom of movement of workers and the equality of labour rights for all citizens from the Member States of an integration association. When interpreting the rules governing professional sports activities, the courts of integration associations distinguish between issues in which the sport movement retains its autonomy and the labour (economic) activities of athletes, which are subject to the legislation of the Union. The Court of Justice of the European Union (the CJEU) in its decisions has repeatedly voiced its opinion both on the autonomy of sport and on various aspects of economic activities of athletes and sports organizations. The Court of the Eurasian Economic Union (the EAEU Court) is a much younger court and it has not adjudicated on these issues so far. However, in December, 2018 it rendered its first advisory opinion on the labour activities of professional athletes who are citizens of the EAEU Member States, in which it followed the logic the CJEU had demonstrated in a well-known decision in the Bosman case.</em></p> 2021-01-06T00:00:00+01:00 Copyright (c) 2021 Comparative Law Review Editorial 2021-01-29T15:28:31+01:00 Michał Balcerzak <p>On behalf of the Editors of “CLR” I am pleased to present no. 26 of our journal. The current issue embraces two studies and nine articles and shorter notes. As usual, the contents of “CLR” represent a variety of legal disciplines, ranging from legal theory, international and constitutional law, to developments and case-law in several domestic jurisdictions, all set in a comparative perspective.</p><p>I wish to remind our readers that we encourage contributions on all fields of law and intend to maintain the wide scope of our journal while preserving its academic quality and special focus on comparative research. Given the world pandemic of COVID-19 which erupted in 2020, we can expect that the attention of the legal academic community in the next months or even years will encompass the legal consequences of the pandemic, both domestically and internationally. Therefore, the call for submissions to no. 27 of the “CLR” will encourage comparative studies on the influence of COVID-19 on the legal systems.</p><p>Traditionally, I wish to thank the members of the Academic Board and Editorial Board, with special appreciation of the work done by our Editorial Assistants, Dr. Daria Gęsicka and Dr. Julia Kapelańska- -Pręgowska, as well as our English language adviser, Mr. Christopher Wright.</p> 2021-01-10T00:00:00+01:00 Copyright (c) 2021 Comparative Law Review Legal Instruments to Support Local Food Systems in United States Law 2021-01-29T15:32:13+01:00 Anna Kapała <p><em>The study aims to determine what instruments supporting local food systems (LFS) are implemented in US law. To achieve this goal, the most important regulations supporting LFS, issued at federal, state, and local levels, drawn from various fields, were analysed, including food safety law, zoning law, tax law, and federal programs. The provisions are discussed in relation to the key elements of LFS: direct marketing, farmer’s markets, community-supported agriculture, urban agriculture, and agritourism. The study shows that US law lacks a systematic approach to legal support for LFS. However, important legislative tools supporting LFS can be identified. These include exemptions from certain food safety requirements for direct farm marketing, a food sales tax exemption established by certain states, relevant local zoning laws encouraging urban agriculture and farmers’ markets, as well as local laws on public procurement prioritizing local food. The most visible support, designed specifically for LFS, are federal programs offering financial grants.</em></p> 2021-01-29T00:00:00+01:00 Copyright (c) 2021 Comparative Law Review Property Rights and Legitimate Expectations Under United States Constitutional Law and the European Convention on Human Rights: Some Comparative Remarks 2021-02-15T10:38:18+01:00 Marta Nunes Vicente <p><em>The present article aims to critically describe and compare how two rather different legal fora – the United States Supreme Court and the European Court of Human Rights – address the same constitutional issue: the protection of property rights and legitimate expectations in the face of a legal change. According to the US Federal Constitution, the effects of a legal change over patrimonial interests can be treated under the due process of law clause or the takings clause. Article 1 of Protocol No. 1 of the European Convention on Human Rights, alone or in conjunction with the right to a fair trial, plays the same role under the ECHR. Our concluding remarks will show that in both systems, property protection provisions amount to a guarantee against unfair governmental action. Regulatory takings and proportionality are areas of strong disagreement between the two systems, whereas retroactive legislation and patrimonial expectations reveal some interesting similarities.</em></p> 2021-01-10T00:00:00+01:00 Copyright (c) 2021 Comparative Law Review List of Reviewers (vol. 26/2020) 2021-01-29T15:28:41+01:00 . . Prof. UMK dr hab. Agnieszka Bień-Kacała (Nicolaus Copernicus University)<br />Dr Daniel Dąbrowski (University of Szczecin)<br />Prof. UJ dr hab. Monika Florczak-Wątor (Jagiellonian University)<br />Dr Katarzyna Krupa-Lipińska (Nicolaus Copernicus University)<br />Prof. UWr. dr hab. Bartłomiej Krzan (University of Wrocław)<br />Dr hab. Eligiusz Krześniak (Lazarski University)<br />Dr Michał Leciak (Nicolaus Copernicus University)<br />Dr hab. Aleskandra Mężykowska (Polish Academy of Sciences)<br />Prof. UŚ dr hab. Olga Sitarz (Silesian University)<br />Prof. UMK dr hab. Maciej Siwicki (Nicolaus Copernicus University)<br />Prof. UŁ dr hab. Jacek Skrzydło (University of Łódź)<br />Prof. UG dr hab. Sławomir Steinborn (University of Gdańsk)<br />Dr Marcin Szwed (University of Warsaw)<br />Dr Agnieszka Szymecka-Wesołowska (Food Law Centre)<br />Prof. KUL dr hab. Małgorzata Wąsek-Wiaderek (Catholic University of Lublin)<br />Dr Maria Wincławska (Nicolaus Copernicus University)<br />Prof. dr hab. Mariusz Załucki (Frycz-Modrzewski Academy in Cracow) 2021-01-16T00:00:00+01:00 Copyright (c) 2021 Comparative Law Review