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Societatea de Științe Juridice și Administrative

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PARTENERI:

CONFERINŢA INTERNAŢIONALĂ
PERSPECTIVE ALE DREPTULUI AFACERILOR ÎN MILENIUL AL TREILEA
www.businesslawconference.ro

CONFERINTA INTERNATIONALĂ “PROVOCĂRI CONTEMPORANE ÎN DREPTUL ADMINISTRATIV DIN PERSPECTIVĂ INTERDISCIPLINARĂ” www.alpaconference.ro

 

Volumul 14, Numarul 3, Octombrie 2024

Cuprins



Articol 1 - Comparative Law in Legal Education: An Interdisciplinary Perspective

Rezumat

This paper considers the role of comparative law in legal education from the interdisciplinary perspective of law and language. While legal education is traditionally monojural, modern law practice is globalised and demands a broader legal skillset and comparative perspectives in order to navigate legal systems and regulatory frameworks in an informed, effective manner. This is particularly salient where legal systems, structures or rules fundamentally differ between jurisdictions, resulting in conceptual incommensurability and thus impacting on legal communication and practice. Considering that this issue is not expressly addressed in legal education, an interdisciplinary approach to teaching legal methods and skills is proposed, aiming to develop the student’s interjural competence and ability to understand and convey intended meaning across legal cultures. In doing so, the approach takes a holistic view of the operation of the law with the inextricable link between the law and language at its centre, drawing on comparative law, language teaching and translation methodologies. The paper concludes by suggesting that the law curriculum would be considerably enhanced by inclusion of comparative and linguistic perspectives developed through immersive learning experience, with a view to equipping graduates with interdisciplinary tools for effective legal communication and practice across jurisdictions.
Key-words: comparative law; legal education; legal translation; immersive education; interdisciplinarity.
JEL Classification: K10, K30



Articol 2 - Rethinking FinTech Regulation Under the Indian Data Protection Framework

Rezumat

This article examines the substantial implications of the Digital Personal Data Protection Act, 2023 (DPDPA) on the developing FinTech industry in India. With a principlebased approach, the DPDPA emphasises user control, accountability, and transparency in addressing critical issues in the data-driven FinTech sector. Combining doctrinal analysis and an exploratory methodology, this study meticulously investigates the Act's insight into obligations, focusing on the intricate distinctions between data processors and data fiduciaries. The objective of this doctrinal and exploratory analysis is to thoroughly comprehend the legal structure established by the Act, thereby clarifying the consequences for participants in the FinTech ecosystem. This study explores the DPDPA's impact on managing and safeguarding financial data within the dynamic FinTech sector. It accomplishes this through an evaluation of legal instruments and literature reviews. The paper concludes by suggesting changes to be taken by the financial regulator as a way to address concerns related to data security. Additionally, it initiates a discourse on the regulation of FinTech in India. It emphasises the significance of the collaboration between the Reserve Bank of India and the Ministry of Information Technology on data protection.
Key-words: FinTech; data protection; privacy; personal sensitive data; information technology.

JEL Classification: K22, K23



Articol 3 - Sustainable Ends – Colonial Means? On Sustainability, Planning and Malintentions in Global Green Policies

Rezumat

This paper embarks on a comprehensive exploration of the intricate and multifaceted dynamics underlying global policies aimed at mitigating climate change, particularly within the evolving landscape of emerging biofuel markets. While the imperative to combat climate change is undeniable, it is equally essential to recognize and address the potential unintended consequences that may arise. In an age characterized by disinformation and conspiracy theories, public resistance to policies deemed malicious or inhumane is particularly prevalent, especially in cases where outcomes entail land grabbing, deforestation, and human rights violations, notably within developing countries marked by heightened vulnerabilities. Leveraging established theoretical frameworks proposed by prominent scholars such as Bastiat, Popper, Taleb, Hayek, and Soros, this study aims to explore the practical ramifications of green policies, which often exceed their intended scope and result in unforeseen negative consequences. Concurrently, we endeavor to challenge potential conspiracy narratives surrounding the purported malevolent intentions of elites and allegations of neo-colonialism in the formulation of green policies, emphasizing the enduring relevance of the principles of selfawareness and radical fallibility within the realm of critical rationalism.
Key-words: global green policies, climate change, biofuels, sustainability, radical fallibility, epistemic arrogance.
JEL Classification: K10, K33



Articol 4 - The Visegrad Group’s Approach to the Arctic: Which (Sub-Regional) Policies?

Rezumat

The Visegrád countries (or V4) are increasingly showing interest in the Arctic region. With different levels of engagement, the four countries carry on diplomatic, economic, and scientific activities in the Arctic. Poland and the Czech Republic are particularly active when it comes to engagement with Arctic policies. Poland enjoys Observer status at both the Arctic Council and the Barents Euro-Arctic Council. The Czech Republic, on the other hand, officially applied for Observer Status in the Arctic Council in December 2020. Hungary and Slovakia, instead, have not issued significant political documents referring to the Arctic region, even though they are involved in research cooperations in Arctic-related issues and have economic and diplomatic relationships with the Arctic states. Also, the V4 group has not issued a document addressing the Arctic policy so far – however, it engages regularly in dialogues with Arctic countries on several issues. This chapter investigates the Visegrád Group's approach to the Arctic, considered its approach as a group, as well as the national policies that have been adopted and implemented so far by the four countries, including their relationships with the Arctic states.
Key-words: Visegrád Group; Poland; Czech Republic; Hungary; Slovakia; Arctic policies..
JEL Classification: K33



Articol 5 - The Third Step of the Guðmundur Test and the Importance of a Seamless Implementation of the Principle of Separation of Powers Into the Process of Appointment of Judges for Independent Tribunals Established by Law

Rezumat

Independent commissions and other bodies take ever-growing importance in the process of the selection and appointment of judges, but they are not a cure against all threats to judicial independence. Starting from the Guðmundur case in a comparative perspective yet focused on the Hungarian model the paper will investigate other elements of the selection process that also play a role in guaranteeing judicial independence, as the question of judicial appointments is of great importance for an independent tribunal being established by law. The paper argues based on recent case-law that the requirement of judicial review against breaches of the appointment process will lead to a judicialization of this now rather political question and can enhance the system of checks and balances in this field. This will again probably entail the need for more defined selection criteria. The Hungarian model shows weaknesses, the analysis of which may help to avoid some “faux-pas” and trigger a more systematic European response. The paper uses the comparative legal method and relies on the analysis of legal texts, mostly from European and national courts and other European fora within the Council of Europe.
Key-words: checks and balances; effective judicial protection; judicial independence; selection of judges; tribunal established by law; separation of powers.
JEL Classification:
K10, K40, K41



Articol 6 - Reflections on the Systemic Efficiency of Contemporary Democracy

Rezumat

This research article analyzes the complexity of democracy in the current context and the challenges it faces in maintaining its effectiveness and fundamental principles. Although democracy is seen as an effective system that protects human rights and promotes equality, it does not always guarantee these results. Democracy should be evaluated not only by the conduct of elections but also by its ability to respect and guarantee human rights and real equality, taking into account the variety of cultural, political, and economic influences. Additionally, it is necessary to have transitional justice mechanisms in place in contexts where democracy must address and repair human rights violations to ensure true social renewal.
Key-words: democratization, democratic society, human rights, transitional justice, reparations for damages.
JEL Classification:
K10, K38



Articol 7 - Stabilization and Association Agreement in the Jurisprudence of the Albanian Constitutional Court

Rezumat

This study will analyze the implementation of the EU-Albania Stabilization and Association Agreement (SAA) in the context of Albanian constitutional jurisprudence, with a particular focus on its status as a special source of law. The SAA holds a dual identity as both an international agreement ratified by the Parliament of the Republic of Albania and an instrument of EU law. This study aims to evaluate this dual status concerning the practical application of the SAA within the constitutional jurisprudence of the Constitutional Court of Albania. To achieve the objective of the study, two distinct research methods were employed. The desk-based research and the case study method. Desk-based research allowed for an indepth exploration of existing literature, legal documents, and academic articles on the topic. The case study method facilitated the analysis of specific instances and rulings within Albanian constitutional jurisprudence that involve the implementation or interpretation of the SAA. In conclusion, a more precise understanding will be gained of how the SAA will be applied in the resolution of concrete disagreements under the Albanian constitutional jurisprudence.
Key-words: SAA, Albanian constitutional jurisprudence, international agreement, EU law, special source of law.
JEL Classification:
K10, K33



Articol 8 - Restrictions on Human Rights During the COVID-19 Pandemic in the Western Balkans

Rezumat

This paper analyzes some human rights restrictions due to the COVID-19 pandemic. At the beginning of 2020, the world faced a situation that caused a global imbalance at all levels. It was not just a public health crisis, but also a situation that brought about an economic, social, and humanitarian crisis. The pandemic, as an extraordinary situation, forced the limitation of some fundamental freedoms and rights, such as freedom of movement, assembly, religion, information, etc. which greatly affect the dignity of individuals. In the first part of the paper, we will extensively discuss when measures to limit human rights can be taken, and what the exceptional situations for their limitation are, specifically addressing the extraordinary situation of the COVID-19 pandemic. At the end of the paper, we will raise some issues for discussion and conclusion, which should receive great attention from all national and international political, economic, and social actors.
Key-words: restriction of rights, COVID-19 pandemic, state of emergency, healthcare protection, global emergency, restrictive measures.
JEL Classification: K32, K38

 

Articol 9 - COP28 in the Light of the Right to a Healthy Environment: Destructive Creation or Creative Destruction?

Rezumat

Climate change poses one of the most significant threats to human survival, demanding an urgent reaction. It seems that, more than ever, we need a global response to this issue. Therefore, it is not surprising that the international community had high expectations from the 28th United Nations Climate Change Conference (COP28), held in Dubai, United Arab Emirates, from November 30 to December 12, 2023, with the participation of representatives from over 160 countries. The paper will contribute to the ongoing discussion on whether this conference was a success or failure by analysing its outcomes with respect to the protection of the right to a healthy environment in accordance with the universal and regional human rights instruments. The scope of the paper is to clarify whether COP28 recognised the basic postulates of the concept of the right to a healthy environment, or, in other words, should we consider the COP28 agreement as a destructive creation or creative destruction?
Key-words: climate change, COP28, right to a healthy environment, human rights instruments.
JEL Classification:
K33



 

Articol 10 - Regulation on Abuse of the Dominant Position of the Western Balkan Countries with EU Practices

Rezumat

In this paper, we analyse competition as a basic element of the market economy and compare the extent to which the countries of the Western Balkans have managed to adapt the best practices of the European Union. The paper has a special focus on the dominant position of enterprises and the regulation of these enterprises. A comparative analysis of data collected from primary and secondary sources is conducted to demonstrate the current state of competition in the Western Balkan countries and to determine the most appropriate tools to build a strong and efficient competition regime. The analysis shows that the field of abuse of dominant positions is one of the most complex and that reinforcements are needed in terms of its treatment and regulation. The findings from the study reveal that the national competition authorities are still in a stage of development and more ought to be done to create an adequate regime. Based on the findings from the research, the paper emphasises recommendations for further harmonisation of the regulations in the field of competition between the countries of the Western Balkans and the European Union.
Key-words: market economy; competition; abuse of dominant position; competition authority; relevant market.
JEL Classification:
K20, K21



 

Articol 11 - A Brief Legal Commentary on Nuclear Weapons States’ Contemporary Policies Through Comparative International Approaches

Rezumat

Despite the end of the Cold War, nuclear weapons remain an important issue in international relations, where efforts and cooperation worldwide have been reported toward the conceptualization of the “global nuclear order” for the purposes of mitigating nuclear dangers, inhibiting arms races, preventing the continuous spread of nuclear weapons to nonnuclear- weapons states (NNWS), as well as creating conditions for the elimination of nuclear weapons. Hence, the objective of this research paper concerns to scrutinize the effectiveness of the global nuclear order through the legal perspective of international law. For that matter, the research methods adopted by this research paper include comparative international approaches by providing a legal commentary in regards to the nuclear policies and doctrines of the nine nuclear-weapons states (NWS) currently in possession of nuclear weapons. They are classified in three main categories: (1) recognized NWS (Russia, the U.S., the U.K., France and China), (2) states declaring possession of nuclear weapons (India, Pakistan and North Korea) and (3) states indicated to possess nuclear weapons (Israel). The results obtained from this research paper implicate the clash between contrasting nuclear-related objectives of different political backgrounds demonstrating the potential to increase the risk of nuclear escalation threatening international peace and security.
Key-words: international law; nuclear policy; international relations; NPT; comparative law.
JEL Classification:
K33



 

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