Volume 18 (2018): Issue 2 (December 2018)

India’s BIT program is the largest among the developing countries and its integration into the global economy has also increased its exposure to BIT claims. Sev­eral foreign corporations presented ITA notices against various Indian regulatory mea­sures prompting India to suspend all trading of BITs in progress that led to a change in its position in the International investment law regime with repercussions in the International business community eager to participate in its business. These recent developments have then determined the need to review India’s BIT program in a global vision. The paper ‘International Investment Agreements Between India and Others Countries’ (2011), showed the importance of ensuring a balance between investor rights and national policy which India has not been able to make guarantor pushing in differ­ent circumstances to revise their existing BITs and defining new perspectives for future negotiations. The paper reflects on experiences of BITs in a global vision..

Consent, the final frontier. International commercial arbitration is a dis­pute resolution mechanism embedded in consent of the parties involved. Presentation of such a mutual understanding is done through an arbitration agreement. However, the aim of this paper is to analyse whether its contractual, indeed consensual, nature is the only element which the courts use to identify the subjects who may compel or must be compelled to arbitrate disputes, or whether they employ other considerations as well. The paper will focus on extension doctrines which might be less known even to a professional audience: piercing of the corporate veil, estoppel & group of companies. A review of selected case law leads to a conclusion that consent-finding analysis is defi­nitely a starting point of any analysis. However, at the same time courts and arbitrators do indeed use tools of contract interpretation and the ones based on equity or good faith considerations to establish, and exceptionally force, the implication of consent far beyond what is obvious.

The article analyses the decision of the EU Court of Justice in Coman in which the Court derived residence rights for spouses in the same-sex marriages. The article outlines the basic grounds of the judgement and critically appraises them in the context of EU primary as well as secondary law and especially Directive 2004/38. The article raises concerns about the division of competences between the EU and its Mem­ber States, extended interpretation of the term “spouse” in the context of EU law, human rights considerations as well as potential effects of the decision on national family law.

Mergers and acquisition (M&A) operations generally follow wide due-dil­igence and investigation works. This suggests that a lot of elements outside of the final contract could help the judge or arbitrator interpret the intent of the parties. Yet, the common law tradition usually includes a so-called ‘parol evidence rule’ (PER) that pro­hibits the use of such evidence to this end, among numerous exceptions. Other legal tradition such as the civil law don’t include such rule. As transnational M&A operations now generally use international commercial arbitration (ICA) as a way to solve potential disputes, parties can wonder if these extrinsic evidence can be used in an ICA context, given its multicultural legal habits. To answer this question, this article analyses the cultural roots that explain the existence or absence of the PER, and matches them with the specificities of ICA. There are two main explanations for the distinction between common law and civil law regarding the PER. One is substantial and regards the con­tractual interpretation approach. The second depends on the culture regarding evidence and the existence of exclusionary rules. These two explanations don’t survive in ICA. Moreover, the specificities of ICA tend to encourage the admission of extrinsic evidence in contractual interpretation.

This Paper addresses the right to informed consent regarding euthanasia using international conventions and, to a lesser extent, national laws and policies. Spe­cifically, The United States, Belgium and the Netherlands will be examined. The Paper specifically discusses legal capacity, the right to consent and the right to information. Three stories are used to argue the importance of implementing effective safeguards for these rights and notes that these safeguards are necessary regardless of whether or not euthanasia is legalized in a state. This Paper also argues that patients should not be offered euthanasia for mental illnesses. The ethical debate surrounding whether euthanasia should be permitted generally is not discussed.

The paper focuses on the very topical issue of conclusion of the membership of the State, namely the United Kingdom, in European integration structures. The ques­tion of termination of membership in European Communities and European Union has not been tackled for a long time in the sources of European law. With the adop­tion of the Treaty of Lisbon (2009), the institute of 'unilateral' withdrawal was intro­duced. It´s worth to say that exit clause was intended as symbolic in its nature, in fact underlining the status of Member States as sovereign entities. That is why this institute is very general and the legal regulation of the exercise of withdrawal contains many gaps. One of them is a question of absolute or relative nature of exiting from integration structures. Today’s “exit clause” (Art. 50 of Treaty on European Union) regulates only the termination of membership in the European Union and is silent on the impact of such a step on membership in the European Atomic Energy Community. The presented paper offers an analysis of different variations of the interpretation and solution of the problem. It´s based on the independent solution thesis and therefore rejects an automa­tism approach. The paper and topic is important and original especially because in the multitude of scholarly writings devoted to Brexit questions, vast majority of them deals with institutional questions, the interpretation of Art. 50 of Treaty on European Union; the constitutional matters at national UK level; future relation between EU and UK and political bargaining behind such as all that. The question of impact on withdrawal on Euratom membership is somehow underrepresented. Present paper attempts to fill this gap and accelerate the scholarly debate on this matter globally, because all consequences of Brexit already have and will definitely give rise to more world-wide effects.

This article focuses on the applicability of bilateral investment treaties on the conduct of the occupying power towards foreign investments situated in the occupied territory. It examines the content of the obligation to respect the laws in force in the occupied territory as prescribed by Art. 43 of the Convention (IV) respecting the Laws and Customs of War on Land. Some authors proposed an idea that this obligation is a gateway provision for the applicability of international treaties which are in force in the occupied territory on the conduct of the occupier. They refer to the case-law dealing with the applicability of human rights treaties in occupied territories. However, after the interpretation of this provision and inquiry into the case-law, this paper reaches the con­clusion that the obligation to respect the laws in force does not have this effect. Instead, it deals with the legislative powers of the occupying power.

This article aims to describe the development process of superior respon­sibility doctrine at the Extraordinary Chambers in the Courts of Cambodia. Superior responsibility is contained in all Statutes of ad hoc tribunals and also the Rome Statute. However, the case of ECCC is distinctive for its special structure and applicable law. As such, the ECCC is being often called ‘hybrid’, court. This Article aims to analyse travaux préparatoires to the ECCC Statute and ECCC Statute itself when it comes to superior responsibility. This analysis will be followed by the ECCC case law. In 2019, the closure of ECCC is anticipated. As such, the first complex analysis on superior responsibility and its applicability by the ECCC is appropriate and can be used as guidance for other already established or future hybrid tribunals. To some extent, the findings can also be used for the application of superior responsibility by the ICC.

This paper examines the Late Payment Directive of the European Union and seeks to answer the question of whether the provisions of the Directive apply to loan contracts in corporate transactions. The paper first describes and analyses the Late Pay­ment Directive and provides a comprehensive analysis of relevant arguments and legal sources. It then evaluates the different factors required by the Late Payment Directive and finally argues that the Late Payment Directive has to be applied to loan contracts and facility agreements, even if this is not explicitly foreseen in the Directive.

This paper aims to describe one part of the issue - the fact that a living ani­mal is not a thing. Does that mean that one could not “own” an animal, or perhaps that an animal as a subject of rights? Will it be liable for damage it causes? The author believe that the provision specifically aims at pets and it is a pity that it is not explicitly men­tioned. The different attitude of legislator is also reflected in compensation for damage, which now involves a special material element of compensation for damage caused by and to an animal. These and other aspects are addressed in this paper.

The state can be an actor in Hungarian private law in several ways: on the one hand, by its organs (e.g. the Office of the National Assembly, ministries), on the other hand, by the organs of public law the state creates (e.g. budgetary organs), thirdly, through business associations operating with the participation of the state, fourthly, exceptionally, the state itself can also act as a subject of private law. In this study we call the attention to that the terminology used in case of business associations operating with state/local government participation is not sustainable and we focus on some issues where the private and public law discrepancy can be found in Hungary.

The authors confront complexness and rigour of EU directives on public procurement vis-à-vis broad wording of international agreements concluded within EU neighbourhood policy. The firs reason for this comparison is ongoing spread of prin­ciples of the EU law to the third countries. The second reason is that both rely on the same goals: access to market ad fair environment via transparency because these prin­ciples constitute a subtle legal basis for public procurement legislation at all. Finally, these approaches were compared to the approaches employed in recent FTAs - CETA and EUSFTA. This paper is an output in a project granted by APVV-17-0641: Improvement of effective­ness of legal regulation of public procurement within EU law context

The criminal responsibility and the system of sanctioning juvenile offenders is one of fundamental criminal law issues. Individuals who start a criminal career early on are usually not easy to reintegrate into normal life. That is one reason why it is neces­sary to discuss the problem of juvenile justice in depth. The legal literature in the Czech Republic is devoted to this topic on a large scale, however Hungarian legislation has not yet been analysed fo purposes of comparation. The Czech Republic and Hungary fall under the United Nations categorization to Eastern Europe and therefore certain similar features can be assumed. On the other hand any identified differences may be the basis for future changes of the legislation.