Hasil untuk "Private international law. Conflict of laws"

Néstor Raúl Londoño Sepúlveda

Christiane Wendehorst

Mehdi El Harrak

Débora Kloeppel Roche Moreira

O objetivo deste artigo é descrever sobre a valoração aduaneira e os preços de transferência, visando analisar a existência de harmonização entre regras de cada instituto para definir o valor de transação de mercadorias. A elaboração do estudo segue orientações de normas, leis e bibliografias. E, justifica-se ante a dificuldade de empresas vinculadas operacionalizar os paralelismos entre as regras do valor aduaneiro e o preço de transferência, e também, de definir o valor das transações. A metodologia utilizada foi o método indutivo, que partiu da análise de pesquisas bibliográficas, esta por sua vez, foi o ponto de partida para este estudo. Por fim, concluiu-se que harmonizar as regras dos preços de transferência para definir um valor aduaneiro parece razoável quando se tratar de empresas vinculadas, desde que não utilize uma norma em detrimento da outra.

Khalid Khan, Saima Liaqat

Balochistan, one of Pakistan's largest and resource-rich provinces, faces significant challenges in realizing its economic potential. Despite abundant natural resources, Balochistan suffers from some of the country's worst poverty rates, with the second-highest multidimensional poverty rate after the formerly Federally Administered Tribal Areas. The sparse population across a vast land area poses a significant growth constraint due to low population density, challenging terrain, and high per-unit service delivery costs. The lack of urban clusters exacerbates the problem of regional disparity, with Quetta being the only large city in the province. Nevertheless, Hub district stands out as Balochistan's most productive district, with the agricultural, fisheries, and livestock industries contributing significantly to its economy. Moreover, the district is Balochistan's only industrial and financial center, producing, on average, 90% of the province's industrial output and generating 70% of its tax revenue. As one of the thriving districts of Balochistan, District Hub needs reorganization along with new lines that unleash its economic potential and become the economic growth engine of Balochistan. However, to fully realize Balochistan's potential, further measures must be taken to address the challenges of low population density, logistical difficulties, and regional disparity.

Pedro Henrique Colla

RESUMO: O estudo buscou analisar os aspectos jurídicos concernente às questões relacionadas ao juízo de sobrestadia em nexo com os serviços prestados por terminais de armazenagem de contêineres, às relações jurídicas fixadas entre terminais, exportadores e armadores, à estrutura jurídica dos contratos e acordos firmados entre tais sujeitos, bem como, temas polêmicos a respeito de regulamentos e normas publicados pela Agência Nacional de Transportes Aquaviários (ANTAQ). Para terminar, objetiva-se atestar que, a interposição do ente regulador no acaso provoca descumprimento aos princípios da livre iniciativa e de livre concorrência, trabalhando contra a própria regularização do mercado que, em conclusão, resulta em serviços mais caros ao usuário.

Georges Abi-Saab

This essay examines the activities of the Institute of International Law (the Institute or IIL) during its 150 years of existence, dealing directly or indirectly with the colonial phenomenon. It distinguishes between two major periods of roughly equal length: first the period between the years 1873 and 1945; and second, the period from 1945 to the present. These correspond to two important periods of international relations: the second wave of colonial expansion and its remnants and the regime of mandates following World War I, on the one hand, and the era of the United Nations Charter, the promotion of human rights, self-determination, and decolonialization, on the other hand.

Iza Razija Mešević

The contribution is examining the exciting technological phenomenon of the metaverse through the lens of Intellectual Property Rights (IPR) and their potential application in this virtual ecosystem. More precisely, the focus of the paper is on three types of Intellectual Property Rights – Copyright, Patents and more extensively Trademarks. Firstly, the author offers some definitions and pinpoints the main features of the emerging virtual realities, as well as clarifies their interplay with blockchain technologies. Also, she underlines the flexibility of IPRs and the intangible nature of their protected subject matter, which makes it easier to extend the implementation of their legal norms from the real world to the realms of the metaverse. Further, the paper explores for each of the three IPRs the potential to contribute to the development of the metaverse and its economy, e.g. through the creation of virtual works of art and trading with “art NFTs”; registering Patens for hardware systems and devices that enable access to the metaverse (e.g. AR or VR glasses), and creating, trading and protecting through Trademarks virtual goods, which represent intangible twins of their branded real-life products.

S. Chernik

The article is devoted to the study of the legal regulation of family relations complicated by a foreign element. Emphasis is placed on the definition of "foreign element" in legislation and scientific literature. The methods of regulating family legal relations with a foreign element, which are used in private international law, are singled out. One of the most common of these is the adoption of regulations with relevant conflict rules and the conclusion of bilateral or multilateral agreements between states. International treaties are designed to unify the rules of law governing family relations between citizens of different countries due to the differences between the laws. The content of conventions that accumulate conflicting rules on the regulation of certain areas of family relations, in particular, the Convention on Consent to Marriage, Minimum Age, Registration of Marriage (1962) and the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (1993). The normative legal acts of Ukraine regulating family relations complicated by a foreign element have been studied. Among them, special attention is paid to the Family Code of Ukraine and the Law of Ukraine «On Private International Law». It is established that the Family Code of Ukraine contains norms on the peculiarities of the adoption of children by citizens of Ukraine living abroad and foreigners. The Law of Ukraine «On Private International Law» is a special normative legal act that contains conflicting norms of family law and ensures the realization of the rights and freedoms of citizens. The role of bilateral and multilateral agreements in the field of private law relations in the regulation of family relations between citizens of different states is determined. The content of the Agreement between Ukraine and the Republic of Poland on legal assistance and legal relations in civil and criminal cases is analyzed.

C. Okoli

Many scholars in the field of private international law in Asia are taking commercial conflict of laws seriously in a bid to drive harmonisation and economic development in the region. The recognition and enforcement of foreign judgments is an important aspect of private international law, as it seeks to provide certainty and predictability in cross-border matters relating to civil and commercial law, or family law. There have been recent global initiatives such as The Hague 2019 Convention, and the Commonwealth Model Law on Recognition and Enforcement of Foreign Judgments. Scholars writing on PIL in Asia are making their own initiatives in this area. Three recent edited books are worthy of attention because of their focus on the issue of recognition and enforcement of foreign judgments in Asia. These three edited books fill a significant gap, especially in terms of the number of Asian legal systems surveyed, the depth of analysis of each of the Asian legal systems examined, and the non-binding Principles enunciated. The central focus of this article is to outline and provide some analysis on the key contributions of these books.

Luísa Neto, Anabela Costa Leão, Jorge Gracia

The set of papers presented and introduced here reflects the dialogue established between three closely related concepts (vulnerability, care and rights) at the workshop of the same title held online in 2020. Starting from an understanding of vulnerability as a cross-cutting and universal phenomenon, several of the papers reflect on the very nature of the concept and from the point of view of the role of the state and the law in addressing the negative effects of vulnerability. Along with vulnerability, the other axis of the papers is that of care, both in its ethical and political dimensions and from a gender perspective. All of this from an Iberian perspective (related to the constitutional treatment and some legal aspects in Spain and Portugal), but which also encompasses the European perspective, and, in a broader sense, that related to human rights.

Alastair Smith, A. Boraine

This article summarises the judgment in Cooperativa Muratori & Cementisti & others v Companies and Intellectual Property Commission & others, in which the Supreme Court of Appeal confirmed the statutory denial of business rescue to external companies and refused to recognise and apply the Italian restructuring process in South Africa. The article then discusses the private international law (conflict of laws) on the discharge of a contract by a foreign sequestration or liquidation, and the statutory novation of the contract by a foreign pre-insolvency composition or restructuring. Central to the debate over characterisation and choice of law (between contract or insolvency) is the effect of the Gibbs rule, a long-standing feature of the law of the United Kingdom, South Africa, and several other countries, but increasingly controversial because of contemporary ideas of cross-border insolvency law. The article argues for an approach based on contract and company law rather than insolvency law, because pre-insolvency proceedings, by definition, do not involve a winding-up order or a liquidation process, and, if timely and successful, prevent both. The South African private international law on the recognition of a foreign pre-insolvency statutory composition or restructuring as a foreign judgment may thus need to be reconsidered.

Claudia Faleri

Con il presente contributo l’Autrice intende promuovere una riflessione sulle sfide che il sindacato è chiamato ad affrontare nell’era della digitalizzazione sia con riguardo alle modalità di azione sindacale e di esercizio dei diritti collettivi che gli strumenti social consentono di sperimentare, sia con riguardo alle nuove istanze di rappresentanza che il mondo del lavoro su piattaforma digitale esprime e alla capacità del sindacato tradizionale di rappresentarle. La riflessione che si intende suscitare riguarda altresì le potenzialità di intervento della contrattazione collettiva a fronte della gestione algoritmica dei rapporti di lavoro e dell’adozione di modelli organizzativi orizzontali e fluidi da parte dell’impresa 4.0; a tal riguardo l’A. tiene conto delle criticità connesse all’esercizio del diritto di negoziazione collettiva da parte dei lavoratori delle piattaforme digitali in prevalenza qualificati come autonomi, nonché del carattere transnazionale del lavoro su piattaforma. / 𝑇ℎ𝑖𝑠 𝑒𝑠𝑠𝑎𝑦 𝑎𝑖𝑚𝑠 𝑡𝑜 𝑝𝑟𝑜𝑚𝑜𝑡𝑒 𝑎 𝑟𝑒𝑓𝑙𝑒𝑐𝑡𝑖𝑜𝑛 𝑜𝑛 𝑡ℎ𝑒 𝑐ℎ𝑎𝑙𝑙𝑒𝑛𝑔𝑒𝑠 𝑡ℎ𝑎𝑡 𝑡ℎ𝑒 𝑡𝑟𝑎𝑑𝑒 𝑢𝑛𝑖𝑜𝑛 𝑖𝑠 𝑐𝑎𝑙𝑙𝑒𝑑 𝑢𝑝𝑜𝑛 𝑡𝑜 𝑓𝑎𝑐𝑒 𝑖𝑛 𝑡ℎ𝑒 𝑒𝑟𝑎 𝑜𝑓 𝑑𝑖𝑔𝑖𝑡𝑎𝑙𝑖𝑠𝑎𝑡𝑖𝑜𝑛, 𝑛𝑎𝑚𝑒𝑙𝑦 𝑡ℎ𝑒 𝑜𝑛𝑒𝑠 𝑟𝑒𝑔𝑎𝑟𝑑𝑖𝑛𝑔 𝑡ℎ𝑒 𝑚𝑒𝑡ℎ𝑜𝑑𝑠 𝑜𝑓 𝑡𝑟𝑎𝑑𝑒 𝑢𝑛𝑖𝑜𝑛 𝑎𝑐𝑡𝑖𝑜𝑛 𝑎𝑛𝑑 𝑡ℎ𝑒 𝑒𝑥𝑒𝑟𝑐𝑖𝑠𝑒 𝑜𝑓 𝑐𝑜𝑙𝑙𝑒𝑐𝑡𝑖𝑣𝑒 𝑟𝑖𝑔ℎ𝑡𝑠 𝑡ℎ𝑎𝑡 𝑠𝑜𝑐𝑖𝑎𝑙 𝑡𝑜𝑜𝑙𝑠 𝑚𝑎𝑘𝑒 𝑖𝑡 𝑝𝑜𝑠𝑠𝑖𝑏𝑙𝑒 𝑡𝑜 𝑒𝑥𝑝𝑒𝑟𝑖𝑚𝑒𝑛𝑡. 𝐼𝑛 𝑎𝑑𝑑𝑖𝑡𝑖𝑜𝑛, 𝑡ℎ𝑒 𝑛𝑒𝑤 𝑖𝑛𝑠𝑡𝑎𝑛𝑐𝑒𝑠 𝑜𝑓 𝑟𝑒𝑝𝑟𝑒𝑠𝑒𝑛𝑡𝑎𝑡𝑖𝑜𝑛 𝑡ℎ𝑎𝑡 𝑡ℎ𝑒 𝑤𝑜𝑟𝑙𝑑 𝑜𝑓 𝑤𝑜𝑟𝑘 𝑜𝑛 𝑡ℎ𝑒 𝑑𝑖𝑔𝑖𝑡𝑎𝑙 𝑝𝑙𝑎𝑡𝑓𝑜𝑟𝑚 𝑒𝑥𝑝𝑟𝑒𝑠𝑠𝑒𝑠 𝑎𝑛𝑑 𝑡ℎ𝑒 𝑎𝑏𝑖𝑙𝑖𝑡𝑦 𝑜𝑓 𝑡ℎ𝑒 𝑡𝑟𝑎𝑑𝑖𝑡𝑖𝑜𝑛𝑎𝑙 𝑡𝑟𝑎𝑑𝑒 𝑢𝑛𝑖𝑜𝑛 𝑡𝑜 𝑟𝑒𝑝𝑟𝑒𝑠𝑒𝑛𝑡 𝑡ℎ𝑒𝑚 𝑎𝑟𝑒 𝑡𝑎𝑘𝑒𝑛 𝑖𝑛𝑡𝑜 𝑎𝑐𝑐𝑜𝑢𝑛𝑡. 𝑇ℎ𝑒 𝑒𝑠𝑠𝑎𝑦 𝑎𝑙𝑠𝑜 𝑐𝑜𝑣𝑒𝑟𝑠 𝑡ℎ𝑒 𝑐ℎ𝑎𝑛𝑐𝑒 𝑓𝑜𝑟 𝑐𝑜𝑙𝑙𝑒𝑐𝑡𝑖𝑣𝑒 𝑏𝑎𝑟𝑔𝑎𝑖𝑛𝑖𝑛𝑔 𝑡𝑜 𝑖𝑛𝑡𝑒𝑟𝑣𝑒𝑛𝑒 𝑤𝑖𝑡ℎ 𝑟𝑒𝑔𝑎𝑟𝑑 𝑡𝑜 𝑡ℎ𝑒 𝑎𝑙𝑔𝑜𝑟𝑖𝑡ℎ𝑚𝑖𝑐 𝑚𝑎𝑛𝑎𝑔𝑒𝑚𝑒𝑛𝑡 𝑜𝑓 𝑙𝑎𝑏𝑜𝑢𝑟 𝑟𝑒𝑙𝑎𝑡𝑖𝑜𝑛𝑠 𝑎𝑛𝑑 𝑡ℎ𝑒 𝑎𝑑𝑜𝑝𝑡𝑖𝑜𝑛 𝑜𝑓 ℎ𝑜𝑟𝑖𝑧𝑜𝑛𝑡𝑎𝑙 𝑎𝑛𝑑 𝑓𝑙𝑢𝑖𝑑 𝑜𝑟𝑔𝑎𝑛𝑖𝑠𝑎𝑡𝑖𝑜𝑛𝑎𝑙 𝑚𝑜𝑑𝑒𝑙𝑠 𝑤𝑖𝑡ℎ𝑖𝑛 𝑡ℎ𝑒 4.0 𝑒𝑛𝑡𝑒𝑟𝑝𝑟𝑖𝑠𝑒. 𝐼𝑛 𝑡ℎ𝑖𝑠 𝑝𝑒𝑟𝑠𝑝𝑒𝑐𝑡𝑖𝑣𝑒, 𝑡ℎ𝑒 𝐴𝑢𝑡ℎ𝑜𝑟 𝑐𝑜𝑛𝑠𝑖𝑑𝑒𝑟𝑠 𝑡ℎ𝑒 𝑚𝑎𝑖𝑛 𝑐𝑟𝑖𝑡𝑖𝑐𝑎𝑙 𝑖𝑠𝑠𝑢𝑒𝑠 𝑟𝑒𝑙𝑎𝑡𝑒𝑑 𝑡𝑜 𝑡ℎ𝑒 𝑒𝑥𝑒𝑟𝑐𝑖𝑠𝑒 𝑜𝑓 𝑐𝑜𝑙𝑙𝑒𝑐𝑡𝑖𝑣𝑒 𝑏𝑎𝑟𝑔𝑎𝑖𝑛𝑖𝑛𝑔 𝑟𝑖𝑔ℎ𝑡𝑠 𝑏𝑦 𝑑𝑖𝑔𝑖𝑡𝑎𝑙 𝑝𝑙𝑎𝑡𝑓𝑜𝑟𝑚 𝑤𝑜𝑟𝑘𝑒𝑟𝑠, 𝑤ℎ𝑜 𝑎𝑟𝑒 𝑚𝑎𝑖𝑛𝑙𝑦 𝑞𝑢𝑎𝑙𝑖𝑓𝑖𝑒𝑑 𝑎𝑠 𝑎𝑢𝑡𝑜𝑛𝑜𝑚𝑜𝑢𝑠, 𝑎𝑠 𝑤𝑒𝑙𝑙 𝑎𝑠 𝑡ℎ𝑒 𝑡𝑟𝑎𝑛𝑠𝑛𝑎𝑡𝑖𝑜𝑛𝑎𝑙 𝑛𝑎𝑡𝑢𝑟𝑒 𝑜𝑓 𝑝𝑙𝑎𝑡𝑓𝑜𝑟𝑚 𝑤𝑜𝑟𝑘.

Bambang Setyawan

The free flow of information and ideas is a core part of any thought on democracy and is essential for the successful respect of human rights. It has the potential to cause human rights violations to occur in secret, there is no way to reveal a corrupt and inefficient government, and many other things. Based on this background, this research is based on the formulation of the problem 1) Philosophical Basis of Public Bodies as Public Information Providing Institutions in the Era of Public Information Openness; 2) Existence of the Information Commission as Administrator and Law Enforcer in Public Information Disclosure; 3) Public Entity's Liability Against Disputes Public Information From the Aspects of Administrative Law, Civil Law and Criminal Law. This research is a legal research (legal research). The approach in this research is a statutory, conceptual, and case approach. The conclusions of this study include: Freedom of information is the spirit of democratization that offers freedom, but in this freedom the state can function itself effectively and efficiently without neglecting democratic principles. The effective enactment of the UU KIP in Indonesia starting April 30, 2010 opened a new era of public information disclosure in the country. The enactment of this law is part of the implementation of the spirit of transparency as the fulfillment of citizens' human rights to know public information (right to know) guaranteed by Article 28F of the 1945 Constitution of the Republic of Indonesia.

Jean L. Cohen

In this essay, I approach the question of privatization from a normative political theory perspective. Following Mégret's lead, I focus on the inter- or transnational domain, with the aim of making explicit the norms that undergird Mégret's analysis despite the functional approach he apparently adopts. I argue that the normative basis of the ideas of sovereignty and publicness he relies on is parasitic on the principles of democratic legitimacy developed on the level of the constitutional democratic state. Put differently, my concern is less with the potential demise of public international law that privatization seems to portend, and more with privatization's threat to democratic self-government under both domestic and international public law.

Erik Peinert

Abstract Most theoretical and empirical accounts of trade politics focus on political conflict among competing private interest groups and over policies between the dichotomy of trade liberalization and protectionism. This article challenges this conceptualization by arguing that issues of antitrust, market power, and competition are central to the politics over free trade, and that in this domain state actors are comparatively more important. Original archival evidence from the American New Deal and post-war foreign economic policy shows that post-war free-trade policies were heavily influenced by views, formed in the 1930s, about domestic industrial organization and antitrust. These preferences were then pushed into international economic policy during and after World War II through trade negotiations, extraterritorial application of American law, and pressure for domestic competition laws abroad. In one of the most prominent episodes of trade liberalization, an antitrust campaign and debate permeated trade issues, based in independent state learning and economic preferences.

Marek Świerczyński, Łukasz Żarnowiec

The authors examine the problem of the law applicable to liability for damages due to traffic accidents involving autonomous vehicles. Existing conflict-of-laws regulation adopted in the Rome II Regulation and both Hague Conventions of 1971 and 1973 is criticized. Upon examination of these legal instruments, it becomes clear that existing regulation is very complex and complicated. In effect authors recommend revisions to the legal framework. Proposed solutions are balanced and take into consideration both the interests of the injured persons, as well the persons claimed to be liable. New approach allows for more individual consideration of specific cases and direct to better outcome of the disputes. The findings may be useful in handling the cases related to use of algorithms of artificial intelligence in private international law.

C. Gerner-Beuerle, F. Mucciarelli, E. Schuster et al.

There is significant legal variation and uncertainty in the conflict of laws rules applicable to companies in the EU. While the case law of the Court of Justice on the freedom of establishment has clarified some questions, it is evident that case law cannot provide for an adequate level of legal certainty. The main recommendation of this article is that private international company law in the EU should be harmonized. The article discusses the main challenges that a future regulation to this effect—called here ‘Rome V Regulation on the Law Applicable to Companies’—would have to overcome. Some of those are of a political nature: for instance, countries may fear that it may become easier for companies to evade domestic company law (eg, rules of employee co-determination), and there are specific considerations that concern companies established in third countries. Another challenge is that a future regulation on the law applicable to companies has to be consistent with existing EU conflict of laws rules as regards, for example, insolvency and tort law, while also complying with the freedom of establishment of the Treaty. It is the aim of this article to discuss these questions in detail, notably the general considerations for harmonisation in this field, a potential harmonization based on the ‘incorporation theory’, how it may be possible to overcome some contentious issues such as the definition of the lex societatis or the relationship between the lex societatis and other areas of law, and the prospects for future international harmonization.

Tahir-ul-Mulk Kahlon , Syed Ahmad Talal

Carbon accretion in the atmosphere is having widespread climatic impacts on Pakistan like reduced agricultural productivity, water shortage, and coastal erosion, etc. Tormented with a poor economy, any abrupt scarcity of livelihood resources can breed violence, crime, communal tensions, and a threat to national security. Encumbered by the financial and technical deficit, Pakistan is facing considerable challenges for crafting a pragmatic climate security regime. Significant divergence in the public and academic opinion on the nature of this threat have attributed to a sluggish policy response so far. This paper, therefore, focuses on Pakistan’s Carbon dilemma and critically examines its treatment in national climate policies. It calls for an integrated approach across multiple sectors and mainstreaming of a national security policy with climate-smart infrastructure that assimilates core national security resources. It further calls for political discourses that encompass food, energy, agriculture, health, and even diplomacy to overcome this national threat. Towards the end, this paper proffers some recommendations to mitigate threats to our climate security.   Bibliography Entry Kahlon, Tahir-ul-Mulk, and Syed Ahmad Talal. 2020. "Climate Security of Pakistan: Dissecting the Carbon Dilemma." Margalla Papers 24 (1): 97-111.