Comparative Law Review

Title page and table of contents

Julia Kapelańska-Pręgowska — 2022-12-13

Editorial

Anna Moszyńska — 2022-12-13

Introducing the Business Judgment Rule in Select Countries of the Arabian Gulf

Abdullah Ahmed Alkayat Alazemi — 2022-12-13

Examining the corporate practices of the Gulf Corporation Council (GCC) member states, this paper demonstrates the imperative that GCC nations implement rational board practice models and improve current laws and regulations that pertain to corporate boards of directors. GCC member countries increasingly need to diversify revenue-generating streams; improved corporate board practices are likely to increase income from foreign corporations and investments. Rational board policies protect board members from frivolous challenges related to legal culpability because they operate on a “good faith” model, augmenting corporate growth. Providing a coherent analysis of the business judgment rule, a significant as pect of rational board practices, this paper examines how the rule has worked in the United States and provides a standard for GCC countries to emulate. Shifting domestic policies to this rational model will promote foreign investments and result in financial stability, benefits that current reform practices initiated by the GCC have not yet accomplished.

How Does COVID-19 Affect Marine Insurance Cover Through the Requirement of Seaworthiness?

Derar Al-Daboubi — 2022-12-13

This paper addresses the legal implications of COVID-19 upon the procurement of marine cargo insurance cover. It clarifies the relationship between warranty of seaworthiness and duty of disclosure, both of which are imposed upon the insured cargo owner under contract of marine insurance. The paper discusses the effect of COVID-19 that the insured cargo owner may invoke to rebut the allegation of not satisfying the duty of disclosure in terms of the seaworthiness of a vessel, which may deprive the insured cargo owner of compensation. The study deploys qualitative and black letter approaches by analysing English and US law, and the relevant international documents. The authors suggest that US law should adopt the same approach as English law, so that the insured cargo owner will not be forced to prove the relation between the restrictions imposed under COVID-19 and its failure to disclose material facts related to seaworthiness.

The Principles of Subsidiarity and Decentralisation During the COVID-19 Pandemic, with Particular Emphasis on the Polish and Finnish Legal Systems

Dawid Bunikowski — 2022-12-13

The article focuses on the principles of subsidiarity and decentralisation during the COVID-19 pandemic, with particular emphasis on the Polish and Finnish legal systems (both countries in the Baltic Sea Region). How were those constitutional principles concerning self-government “treated” (dealt with) by public authorities? It analyses the principles of subsidiarity and decentralisation, interpretations of the principle of decentralisation in both Poland and Finland, relations between the state and local self-government, cooperation between the government and self-government administration in combating the pandemic in selected countries, and Polish and Finnish regulations during the pandemic. Methodologically speaking, many different methods and sources are applied. The methodological approach is analytical (analysis of legal acts, literature, media releases and different reports), but also empirical (observation of reality). The thesis is that the principles of subsidiarity and decentralisation during the COVID-19 pandemic were commonly disregarded during the pandemic.

A Critical Analysis of the Legal Regulation of Assisted Reproductive Techniques and Biomedical Research in the Slovak Republic in the Context of Natural Law

Veronika Čunderlík Čerbová — 2022-12-13

The study critically analyses the Slovak legal regulation of assisted reproductive techniques and biomedical research through the prism of natural law attributes. The study confirms the hypothesis that the legal regulation of assisted reproductive techniques and biomedical research in the Slovak Republic is insufficient, does not reflect the actual practice, and allows interpretations and application that are not in line with natural law. The identified shortcomings do not correspond to the fact that the Slovak Republic is one of the countries with a restrictive biopolitics. The study demonstrates that even in the case of conservative legislation, the natural-law basis can be undermined or denied if the legislation does not sufficiently reflect all contexts. For comparison, we present selected legislation from the Czech Republic, which is more precise and consistent, although more liberal. The study also contains specific de lege ferenda proposals that are based on natural law foundations and at least partially remedy the identified shortcomings.

The Right to Conclude Collective Agreements and Collective Bargaining: International Standards and the Legislation of Ukraine

Ihor V. Dashutin — 2022-12-13

The possibility of concluding collective agreements and negotiations is enshrined in international documents and is perhaps the most important principle of labour law. In modern times, this principle and law are still the focus of the International Labour Organization, which considers this right, firstly, as the main labour right and an important socio-economic and political aspect. An important labour right of a person is the fixed opportunity to conclude collective agreements and negotiate. The study of the essence and content of this law is of paramount importance for modern legal science and labour law in particular. In the course of the research, such methods as dialectical, formal-logical, comparative-legal, hermeneutics, analysis, and synthesis were used. Before the study, the aim was to analysee the nature, content, and essential characteristics of the right to conclude collective agreements and negotiations, to analyse existing international standards in this area, as well as the legal regulation of collective agreements and negotiations in the labour legislation of Ukraine.

Climate Change Litigation: Chronicles from the Global South. A Comparative Study

Sudha Kavuri — 2022-12-13

The battles against climate change are being fought at the international level; on the domestic front; on the streets and in the courts. Climate change litigation is one such effort. The global expansion in climate litigation gives substance to claims of a transnational climate justice movement that casts courts as important players in shaping multilevel climate governance. Climate change litigants, lawyers, and judges of one country are taking their cue from their counterparts in other countries. However, only the efforts of the Global North have received prominence. The rest of the world is slated to be sleeping silently. The authors aim to de-bunk this myth. In doing so, the authors endeavour to highlight important contributions by the Courts in the Global South in furthering the jurisprudence of climate change litigation.

Growing Convergence, Continuing Divergence: Comparative Remarks on the American and European Private International Law of Torts

Ekin Korkmaz — 2022-12-13

The Restatement Second and Rome II are representatives of two different legal cultures. While Rome II, as the representative of the EU private international law of torts, appears in a formalist way to achieve ‘private international law/conflicts justice’, the American Restatement Second, which adopts an eclectic system of various approaches, appears as a ‘result-oriented’ legal instrument with the underlying idea of achieving ‘substantive justice’. Although these systems have mainly preserved their unique characteristics, they have converged with each other over time. New approaches on both sides of the Atlantic indirectly support this convergence. This article identifies and critically evaluates the main convergent and divergent features of the EU and the US private international laws of torts comprehensively in line with the primary legal sources of information and practice.

Participation in Public Religious Practices During the COVID-19 Pandemic. Between Various Limitations and Their Proportionality

Łukasz Skoczylas — 2022-12-13

The right to manifest religion or belief in community with others is one of the essential components of religious freedom. However, it has been significantly curtailed in many countries owing to the Covid-19 pandemic. This article identifies the scope of the introduced restrictions, their proportionality, and their impact on the functioning of religious communities. Section 1 sets out three different approaches to participation in public religious practices in selected countries with severe (Germany), moderate (Poland), and liberal (Belarus) restrictions. In section 2, an international perspective on access to religious buildings in times of emergency is presented. The conclusions of this research are juxtaposed in section 3 with the jurisprudence of the highest national courts in Germany, the United States, and France, in order to highlight proportional legal solutions for the protection of religious freedom and public health. In the last section, the consequences of the introduced restrictions are analysed from the perspective of religious associations, using the example of Poland. Lastly, predictions concerning future participation in religious services are also made.

A Comparative Study of the Copyright Laws for Artificial Intelligence in the UK and Korea

Byungun Yoon — 2022-12-13

In the new paradigm in which artificial intelligence plays a critical role in operating a social and technological system, copyright laws have a lot of legal issues. In this paper, the copyright laws of two countries (the UK and Korea) are compared to distinguish the characteristics of major developed and emerging countries. In general, whereas major developed countries such as the US and the UK are favourable to the protection of new technology, emerging and developing countries have tried to lower the level of regulation of new technology in order to promote the business related to the new paradigm. In the case of artificial intelligence, the UK has a legal system that can cover work created by means of artificial intelligence, in contrast, Korea has no copyright law on artificial intelligence, including computer-generated work. Thus, the emerging countries have mitigated the regulations on copyright in order to support the catch-up strategies of their companies. The copyright law on artificial intelligence in emerging and developing countries needs to be designed for fair competition and fair trade. In addition, the duration of protecting work created by means of artificial intelligence should be shortened, because artificial intelligence can produce a lot of work in a very short time. This paper compared several case laws to compare the cases of copyrights related to artificial intelligence or computer-generated works.

Fast-Track Legislative Procedure During the COVID–19 Pandemic in Slovak Parliamentarism

Miroslav Čellár — 2022-12-13

The Covid–19 pandemic has fundamentally changed the way we live and work. Even today, although the pandemic seems to be over, our lives are not the same as before. This has also had an impact on the functioning of constitutional bodies. We are of the opinion that adherence to the principles of democracy and the rule of law is particularly important to ensure the stability of the system in exceptional situations, such as in the case of the Covid–19 pandemic. The institution of fast-track legislative procedure (FTP) is an exceptional instrument for dealing with exceptional situations. Its purpose is to enable the Government and Parliament to take quick decisions. However, it must not be abused as this may lead to the violation of a considerable number of constitutional rules and principles. A number of tools can be used to defend against such action, such as Parliament’s rejection of the Government’s FTP proposal, the President’s intervention through his relative veto power, but above all, the Constitutional Court’s decision that a law is incompatible with the Constitution because of a breach of the rules of the legislative process.

Issues on Water Privatization Under New Regulation: Evidence in Indonesia

Sapto Hermawan — 2022-12-13

Water plays a vital role in every human life, so the availability and sustainability of water resources need to be carefully regulated. This article attempts to analyse water governance in Indonesia under the new water resources regulation, mainly the issue of water privatization. This article is classified as normative legal research. This article shows that even though the State gives the water privatization licence to the private sector as the last priority, it seems that the Indonesian people will still encounter the same problem in the coming year. This article argues that the issue of distribution of water justice, water access, and violations of the water right related to water utilization on a large scale are challenges for the Indonesian government to resolve.

Development of the Concept of Corporate Social Responsibility: Practice in Ukraine

Olena Honcharenko — 2022-12-13

The article considers topical issues of the implementation of the concept of corporate social responsibility (CSR) in Ukraine. It is emphasized that the concept of corporate social responsibility involves changes in the legal support of the self-regulation of economic activity. CSR in Ukraine includes the voluntary establishment of norms on social corporate responsibility and determination of the mechanism and means of its implementation. The submission of a corporate social responsibility report is an essential element of CSR though it is not currently mandatory in Ukraine.

In Ukraine, the development of CSR in agriculture should be a priority. It has been established that CSR advocacy is insufficient in Ukraine, and therefore public authorities and non-governmental organizations have to introduce the practice of explaining the need introduce and implement CSR institutions through seminars, conferences, training on responsible business behavior, educational programs, and training courses. Observance of labor rights and guarantees should be a mandatory task for Ukrainian companies in terms of CSR development. It is proposed to amend a number of regulations namely the Law of Ukraine “On Business Associations” and the Economic Code of Ukraine. The creation of the Concept for the Development of Corporate Social Responsibility should determine the prospects and directions of CSR support by the state, expand the interaction between business entities and civil society, systematize existing and prospective tools for its development. Such changes update the implementation of the rules of the Association Agreement between Ukraine and the EU and they will facilitate the implementation of the rules on CSR liability in practice.
Taking into account the ongoing war of Russia against Ukraine since 2014 and its new stage – the full-scale invasion by Russia of Ukraine in 2022, business entities have proposed the separation of CSR policies in the conditions of war. Human rights protection of the conditions of war, workers’ safety (mobilization, evacuation), the organization of the business entity’s work (the responsibility of each employee from the head of the company to the lower level of the executive, payment of labor, taxes, etc.); assistance to the state, armed forces, employees, and other citizens, termination of cooperation with counterparty residents in the Russian Federation and Belarus, withdrawal from the market, etc. of these countries should become the key elements of such policies. The preservation of human life will be an overriding imperative of CSR in wartime.

Legal Regulations of Enforcement Procedure in Selected Foreign Jurisdictions

Markiyan Markiyanovych Malskyy — 2022-12-13

This article provides a brief comparative analysis of the peculiarities of the enforcement procedures in selected foreign countries and jurisdictions with various legal systems, including France, the United Kingdom, Belarus, Kazakhstan, the Baltic countries, as well as research into the organizational structure of their enforcement agencies. The article also provides an analysis of the diverse procedures applied in EU countries for enforcement of decisions of courts and other authorities in civil and commercial cases, including the European Enforcement Order, European Order for Payment, European Small Claims Procedure, as well as the procedure under the Recast Brussels I Regulation. The author’s objective is to consider the procedures of enforcement of Ukrainian court decisions in these countries, as well as to raise the issue of the possible application of these procedures in the relevant legislation of Ukraine and to provide material for further research and analysis of these options.

The European Dimension to the Constitution of the Republic of Italy

Gariella Mangione — 2022-12-13

Italy was one of the countries that signed the Treaty of Rome in 1957, which created the European Economic Community. Despite initial resistance and the numerous difficulties encountered during subsequent years, the choice to commit to Europe was widely shared, becoming irreversibly embedded in the national consciousness. However, whilst other legal systems chose at various stages of their European journey to amend their constitutions by incorporating a European clause, this never happened in Italy. Italy did not change its Constitution as a result of joining the European Economic Community, and has not done so subsequently after becoming part of the European Union with the Maastricht Treaty, following the adoption of the Treaty of Lisbon, nor indeed at any subsequent stage in the process of European integration. It was only in 2001, with the reform of Title V of the Constitution involving changes in the allocation of powers between the state, the regions, and the local authorities, that the expression “Community law” was incorporated into the Constitution. Given the absence of a European clause, the relationship between the Italian Constitution and Europe has been shaped by the Constitutional Court. First and foremost, it interpreted Article 11 of the Constitution, which lays down a generic clause intended to enable the exercise of sovereign powers by international organizations, in such a manner as to bring the European project within its scope. The Constitutional Court developed its case law in its subsequent decisions, even though progress was at times hardfought, and in some cases marked by contradictions; Italy’s cohabitation with Europe was undoubtedly welcome, but this did not mean that it was painless.

Current Problems of the Realisation of the Right to Effective Remedies in the Ukrainian Context of Lustration

Olena Tomkina — 2022-12-13

The article focuses on current problems of the realization of the right to effective remedies for everyone who has fallen within the purview of the Law of Ukraine “On Government Cleansing” in Ukraine during the lustration, since this right is guaranteed by the Convention for the protection of human rights and fundamental freedoms of 1950. The analysis of the established lustration standards, which were formulated by the European institutions taking into account other countries’ experiences, showed that the appropriate realization of the right to effective remedies during lustration is one of the key aspects of government cleansing in a democratic country founded on the rule of law. The article raises the issue of the applicability of the constitutional principles of presumption of innocence and individual responsibility to the Ukrainian context of lustration. This issue remains open for domestic legal theory and practice because it is complex and requires the official legal position of the Constitutional Court of Ukraine.

Analysis of Autonomous Concepts in the Practice of the European Court of Human Rights

Kristina Trykhlib — 2022-12-13

The European Court of Human Rights, when interpreting the rights guaranteed by the European Convention on Human Rights, develops in its jurisprudence autonomous concepts that serve as the foundation for the effective protection of human rights and fundamental freedoms. Thus, the European Court of Human Rights establishes certain standards that are binding on all Member States of the Council of Europe. Autonomous concepts act as a kind of “safeguard” against the abuse and arbitrariness of national authorities. They also contribute to the unification and harmonization of different legal systems, as well as the progress of a uniform judicial practice in the process of interpretation and application of law.

The purpose of this article is to reveal the essence and analyse the content and key components of such autonomous concepts as criminal charge, lawfulness, penalty, person of unsound mind, and peaceful assembly in the practice of the European Court of Human Rights.

Violation of Labour Rights in the Context of Compulsory Vaccination Against Covid-19

Oleg M. Yaroshenko — 2022-12-13

The aim of the article is to conduct research on the issue of whether compulsory vaccination, enshrined in international and national legal acts, violates labour rights. The main research method was a comparison method, which helped to compare the experience of different countries in restricting labour rights in the context of compulsory vaccination against COVID-19. Moreover, the main characteristics of restrictions on labour rights during the COVID-19 period were highlighted using the method of system analysis. The evolution of compulsory vaccination was analysed using a historical-logical method. A formal legal method was applied to generalise, classify, and systematize research results, as well as to present these results. The current outbreak of COVID-19 has provoked trends in discriminatory behaviour in the workplace. Therefore, the restrictions on labour rights must comply with international human rights standards, which, however, largely reflect a position that does not support compulsory vaccination.

List od Reviewers

Julia Kapelańska-Pręgowska — 2022-12-13