Tom 7 (2014): Zeszyt 1 (June 2014)

In September 2013, the Polish Parliament passed an amendment to the Code of Criminal Procedure. The legislators decided to expand a number of adversarial elements present in current Polish criminal proceedings. When these changes come into effect (July 1, 2015), Polish criminal procedure will be similar to American regulations, in which the judge’s role is to be an impartial arbitrator, not an investigator.

The authors of the article describe the meaning of the principle of adversarial trial in Poland. They also emphasized relations between this principle and the concept of “material truth”. The changes established by the amendment are shown in perspective of the American definition of adversarial trial. The authors analyze the reform and attempt to predict the problems with new regulations in practice.

Freedom of expression is one of the most fundamental rights in a democratic society. In fact, the freedom to express one’s opinion and to impart, as well as to receive, information, is essential for the participation in the democratic process. The ability to make decisions as a citizen requires access to information; the participation in the life of the society requires the ability to express one’s opinions. It is imperative that in a democratic society, as it is envisaged by the European Convention on Human Rights (ECHR), everybody is able to express their views, regardless as to whether these views correspond to the views of those who are in power. This ability is one of the key differences between democracy anddictatorship. In particular in the nation-states of Eastern Europe, which have only known freedom for a bit less than a quarter of a century, the growth of democratic structures is inextricably linked to the ability to exercise this right. But while human rights in principle pit the citizen against the State, the citizen who serves the State in a professional function might also wish to express opinions that go against the view of those who are entrusted with leading the State. This is particularly the case when it comes to members of the armed forces. The jurisprudence of the Convention organs with regard to the right of public officials and other State agents to express their opinion freely is not as coherent as it is with regard to other questions concerning the ECHR. In a case decided in late 2013, the European Court of Human Rights dealt with this question with regard to Lithuania. In this article, the authors look at the question of how far the State can restrict the freedom of expression of members of the armed forces under the European Convention on Human Rights.

The article analyzes the investment environment in renewable electricity generation capacities, evaluating the credibility of long term renewable energy targets, the stability of promotion schemes and the impartiality of national administrative procedure. The article explores two main questions: (i) are the EU and Lithuanian energy policy targets and promotion schemes credible enough to convince private investors to put their money in renewable energy development; (ii) does national administrative procedure put a disproportional burden on renewable energy investors or on certain group of investors? The assessment of the investment environment includes a large number of criteria, but we analyze three of them: the stability of long term strategy; the attractiveness of promotionmeasures; and the simplicity and transparency of administrative procedure. Two further criteria are investigated: the stability of targets in renewable energy and the stability of promotional measures. The greatest uncertainty for investors occurs because of constantly changing support schemes of renewable energy sources-schemes that are not harmonized among the member States. At the national level the main driver in the development of small generators is the feed-in tariff. However, the high feed-in tariff does not always guarantee the smooth development of small scale generators of renewable energy.

The aim of the article is to reveal the process of energy risk transformation, which creates concrete hazards for citizens of the Baltic States. The article analyzes two sides of the same problem - district heating (DH) and the renovation of multi-apartment houses. The article will show that the transformation of energy risk is affected by the legacy of a specific constellation of technological, economic and social elements of Soviet infrastructure that appears in a specific and particularly precarious shape under conditions of liberal market capitalism as regards energy security.

The article consists of four parts. The first part describes the issue of district heating and shows its relation with social science. The second part describes the relation of energy risk with modernization and shows how the change of structural conditions (change from industrial society to risk society) transform concrete aspects of energy system (DH whichwere build to meet society’s need) from less risky to a serious hazard for society (which due to the rise of risk society no longer satisfies society’s needs and becomes an unsolvable problem). The third part discusses the two aspects of state socialism housing policy: social and economic. The social aspect of Soviet housing policy was a part of society's social homogenization, carried out by Soviet authorities. The economic aspect refers to the Soviet state's priorities that pushed the housing provision into the periphery of social policy. The fourth part discusses the attempts of already independent countries to solve DH problems. It is demonstrated that active and independent decisions requiring business model was imposed on passive society strongly dependent upon government decisions. Therefore, the renovation process of multi-apartment houses is complicated. The switchover to a market economy after the emergence of private property and rise of energy prices as well as the state's inability to subsidize the DH to a large extent, have highlighted the losses resulting from the multi-apartment buildings’ poor quality.

In the modern information society the success or failure of a person participating in activities related to legal issues depends increasingly more on the relevance and correctness of available information and this is why higher demands are put on giving out information. In the context of company law it is evident that although the company is always liable for the information issued, in reality it is not the legal person giving out information, but its legal representative (the director) instead. Therefore, it would be reasonable to ask whether the director could simply hide behind the company; or, should the director also be held personally liable for disclosing untrue statements? The aim of this article is, on the basis of English, German, Spanish and Estonian law, to analyze if and in which cases a director can be held personally liable for disclosing false information to a third party in the name of a company and what the optimal standard of a directors’ liability for disclosing false information could be. The liability of the company itself is not the current article’s object of the research.

In Finland, a government bill on plea bargaining is now at the parliament. In Estonia, Norway, Denmark, Germany and Latvia they have adopted similar systems already. In Sweden and Iceland plea bargaining is not possible. As a procedural instrument, plea bargaining is something quite new in Europe, and in the Baltic and in the Nordic countries. How does it fit into our systems and into our way of thinking? If we look at the current trends in criminal proceedings fairness, procedural justice, conflict resolution, negotiated law, pragmatically acceptable compromise, procedural truth, party autonomy, court service, communication and interaction are good examples of the topics which are currently being discussed. All these examples indicate that the criminal jurisdiction has become more communal. It has even been said that criminal proceedings have recently become closer civil proceedings, which seems to be quite true. Still, efficiency plays a major role in European adjudication thanks to economic crisis and lack of resources. How to understand the role of plea bargaining in this set? At least the legislator has pointed out the efficiency, the appropriate allocation of resources and the simplifying the criminal proceedings when suggesting adopting the plea bargaining in Finland. The novelty has not been put into philosophical context or into the systemic context of criminal proceedings. It looks like the legislator adopts some single instruments from the foreign legal orders if they seem to fit well into legislators’ puzzle to intensify the proceedings and to save the state money. However, there seem to be more coherent trends behind all of that as well - namely, the change of paradigm.

The article briefly describes international legislation in parental responsibility matters and focuses on the Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (in practice called Brussels II a or Brussels II bis). The essay reveals and analyses the difficulties which occur while hearing parental responsibility cases within the European Union. Particular attention is given to special cases which were difficult to resolve for the national courts of the Republic of Lithuania. Also, the practice of the Court of Justice of the European Union is examined. The guidelines on how to avoid the problems of establishing jurisdiction are given. The relations of 1980 Hague Convention on international child abduction and Regulations Brussels II bis are revealed and the reasons for adoption of the Regulation are highlighted. The article also proposes improvements for Article 15 of the Regulation and the effective application of a modified forum non conveniens doctrine in parental responsibility cases.

Language practice and its official recognition are considered crucial markers of national identities in the region of Central/Eastern Europe. The issue of language rights used to be a vital aspect of the agenda in national movements in the former Austrian (Austrian- Hungarian) Monarchy, together with the process of territorializing and constructing of national identities in the region since the nineteenth century. The protection, persistence, preservation and further development of the national language was introduced as part of the moral obligations and commitments of the members of a community to the constructed national community.

This article examines two discrete yet related research questions that address language. The first one is based on dependence theories and analyzes to what extent the contemporary language policy of the Slovak government and political elites as well as its institutional and legal framework are affected by the decisions adopted in the past which created certain institutional as well as mental frameworks of shaping of the language policy. The second research question is related to the place of the “language issue” in contemporary Slovak domestic political discourse and its role in bilateral relations between Slovak Republic and Hungary with regard to the EU accession in 2004.

The aim of this article is to identify the main principles governing the interpretation of domestic law clauses that grant jurisdiction to ICSID arbitration and to analyse the meaning of such provisions in the context of the SPP v. Egypt case as the first case on the issue. The article first examines the peculiarities of consent to ICSID jurisdiction by way of national legislation. In the first part the analysis of the practice of arbitral tribunals in which a claim was introduced on the basis of consent to arbitration in domestic law shows that specific language of national legislation on consent to arbitration varies considerably. Therefore, since consent is the “cornerstone” of the Centre’s jurisdiction, arbitral tribunals recognize that not all references to ICSID arbitration in national legislation amount to consent. They approach the task of ascertaining the existence of such consent with great care. In the second part, the article focuses on the SPP v. Egypt case on the issue and analyses challenges that the tribunal met in interpreting relevant national clauses and establishing the consent to arbitration. Finally, this article discusses the legacy of interpretation standard of SPP v. Egypt case in context of the dissenting opinion and further case law. It is argued that the rules of interpretation of domestic law clauses that grant jurisdiction to ICSID arbitration are conditioned by the sui generis nature of consent to arbitration as unilateral declarations capable of giving rise to international legal obligations. Therefore, for the purpose of establishing whether there is consent to arbitration provided in national legislation, international tribunals reasonably take a balanced approach and use the methodological mix of rules of interpretation involving various sources: the VCLT, customary law principles governing unilateral declarations and domestic legislation. Additionally, this article provides suggestions on the possible role of the Guiding Principles applicable to unilateral declarations of states capable of creating legal obligations (Guiding principles) in interpreting domestic provisions containing an offer to arbitrate before ICSID.