rss_2.0International and Comparative Law Review FeedSciendo RSS Feed for International and Comparative Law Reviewhttps://sciendo.com/journal/ICLRhttps://www.sciendo.comInternational and Comparative Law Review Feedhttps://sciendo-parsed-data-feed.s3.eu-central-1.amazonaws.com/632d496f207aa168a597a7b4/cover-image.jpghttps://sciendo.com/journal/ICLR140216Consumer Enforcement Opportunities – New Approaches and Trends in Hungarian Procedural Lawshttps://sciendo.com/article/10.2478/iclr-2022-0004<abstract> <title style='display:none'>Summary</title> <p>The European Union has put in place EU rules on consumer contracts and enforcement of consumer rights. These tendencies have also had a significant impact on the Hungarian legislation of recent years. We would describe some provisions of the new Hungarian Code of Civil Procedure concerning consumer enforcement and the Hungarian experience of Directive 93/13/EEC so far. The new Hungarian Code of Civil Procedure has reformed domestic rules on jurisdiction in the field of a consumer’s claim arising from a contractual relationship. The article also covers the following areas of law: Hungarian experience with foreign currency-based loan agreements, reforms to the preliminary ruling procedure in the new Hungarian Code of Civil Procedure.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2022-00042022-09-23T00:00:00.000+00:00Collective Actions for the Protection of Consumers in the Czech Republichttps://sciendo.com/article/10.2478/iclr-2022-0002<abstract> <title style='display:none'>Summary</title> <p>The paper at hand deals with collective procedural mechanism in the Czech Republic. Class action is nowadays considered one of the main procedural tools to protect consumers. Collective procedure in business-to-consumer disputes is thus on its rise in Europe. Yet, the Czech Republic belongs to few EU Member States where consumers still cannot rely on comprehensive regulation of collective action. The paper firstly provides for a brief introduction of existing possibilities that are governed by the Czech procedural law such as right of a consumer organisation to file for representative action on injunction relief or judge’s discretion to use the consolidation of civil proceedings. Further, the article focuses on the question, whether it would be useful if the Czech consumers (or qualified entities on their behalf) could file for collective action on redress measure. The paper subsequently presents the main principles of the unsuccessful Proposal for Collective Proceedings Act, which was submitted by the former Government. Finally, the article elaborates on possible development in this matter, given a duty of the Czech legislator to implement Directive on representative actions.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2022-00022022-09-23T00:00:00.000+00:00Rules of Consumer Redress in Hungary, in Particular Regarding the Domestic Model of Alternative Dispute Resolutionhttps://sciendo.com/article/10.2478/iclr-2022-0005<abstract> <title style='display:none'>Summary</title> <p>The Member States have sufficient leeway to maintain or flexibly shape the domestic map of consumer enforcement system within the European Union, thus reflecting the sociocultural conditions of the Member State concerned. In this study I focus on the consumer redress mechanisms in wider and narrow sense in the Hungarian legal system, highlighting the unique or special solutions.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2022-00052022-09-23T00:00:00.000+00:00Consumer Dispute Resolution in Austriahttps://sciendo.com/article/10.2478/iclr-2022-0008<abstract> <title style='display:none'>Summary</title> <p>The author of this contribution deals with specifics of consumer disputes in Austrian civil procedure law. He analyses special provisions that address consumers in dispute resolution and general procedural rules that do not specifically apply to consumers but have their major impact on consumers. He gives an overview on the caselaw of the Austrian Supreme Court in which the Court has introduced several ways to protect the interests of consumers.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2022-00082022-09-23T00:00:00.000+00:00Resolution of Cases for Consumer Protection under Civil Procedure in Poland. Selected Issueshttps://sciendo.com/article/10.2478/iclr-2022-0007<abstract> <title style='display:none'>Summary</title> <p>The article addresses selected issues related to the resolution of cases for consumer protection under civil procedure in Poland. Although consumer law is mainly the domain of substantive civil law, in civil procedural law there are also normative solutions concerning this issue and they will be discussed in the article. The author will present new legal instruments aimed at increasing the effectiveness of consumer protection in civil proceedings, as well as the proposed changes that should be under debate.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2022-00072022-09-23T00:00:00.000+00:00Asymmetric Position of Consumer and Burden of Proof in Hungarian Civil Procedurehttps://sciendo.com/article/10.2478/iclr-2022-0006<abstract> <title style='display:none'>Summary</title> <p>Author of this contribution analyses the rules of the Hungarian Code of Civil Procedure and relevant case law in aim to find out if there is a special rule on taking evidence in consumer disputes. He concludes that there is no such special rule but some general rules of Code of Civil Procedure and provisions of Civil Code containing special rules on the burden of proof in some consumer cases help consumers to assert their rights in court proceedings..</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2022-00062022-09-23T00:00:00.000+00:00Procedural specifics of resolving consumer disputes in individual civil court proceedings in the Czech Republichttps://sciendo.com/article/10.2478/iclr-2022-0001<abstract> <title style='display:none'>Summary</title> <p>The regulation of consumer protection in procedural law is largely up to the individual Member States of the European Union, which have procedural autonomy in these matters. In the area of individual judicial protection, there are two possible approaches to consumer protection. The first of these is not to introduce any regulation of procedural rules, as the general legal regulation of civil court proceedings seems to be fully sufficient to meet the above requirements. The other approach is to introduce special procedural rules for consumer protection. The Czech procedural regulation is based more on the first approach. The aim of this article is to evaluate whether the regulation set in this way provides the consumer with sufficient protection and meets the requirements of the right to judicial protection and a fair trial.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2022-00012022-09-23T00:00:00.000+00:00Procedural Specifics of Consumer Dispute Resolutions in Slovakiahttps://sciendo.com/article/10.2478/iclr-2022-0003<abstract> <title style='display:none'>Summary</title> <p>The substantive provisions protecting the consumer in contractual relations belong to the reality of European and Slovak national law, which no one dares to doubt anymore. These norms are of such importance that they have fundamentally influenced the nature of civil law in general. In order for civil procedure to fulfil its basic function in this area, that is, to protect and enforce substantive law and to be a means of protecting subjective rights and legally protected interests, it must ‘keep up’ with the development of substantive law. Procedural law ensures the fullfilment of consumer rights as well. This article crearly describes the procedural specifics of consumer dispute resolutions in Slovakia. It brings the overview of the system of procedural protection as o whole but also focuses deeper on specifics of consumer disputes in standard civil procedure before general courts. The article also briefly describes the system of alternative dispute resolution for consumer disputes and system of consumer procedural protection in administrative and criminal proceedings.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2022-00032022-09-23T00:00:00.000+00:00Autonomous Interpretation by the European Court of Human Rights and Margin of Appreciationhttps://sciendo.com/article/10.2478/iclr-2022-0009<abstract> <title style='display:none'>Summary</title> <p>The article is devoted to the problem of interpretation and application in practice of the European human rights standards through autonomous interpretation, as well as to the definition of the role and significance of the doctrine of margin of appreciation in this process. The relevance of the subject matter of research is due to the need to implement effective mechanisms for ensuring and protecting key human rights and freedoms in Ukraine, the establishment of the European principles of law and the European identity. The purpose of the study is a comprehensive analysis of the formation and evolution of the doctrine of autonomous interpretation in the jurisprudence of the European Court of Human Rights by studying and synthesizing judicial practice on the application of autonomous interpretation and elaboration on this basis of a system of autonomous concepts that reflect the common European vision of fundamental human rights and are also a kind of foundation of the European human rights law. The methodological basis of the paper are philosophical, general scientific and special research methods, in particular, dialectical, historical, logical, systemic, sociological, and comparative methods. The study concludes that it is through autonomous interpretation based on the European consensus that the European Court of Human Rights establishes imperative standards for the interpretation and application of human rights in practice, which prevents certain violations by particular member states of the Council of Europe, as well as supports the convergence and harmonization of different national legal systems, which contributes to the formation of the most homogeneous legal environment and the European system of human rights protection. The practical feasibility of the study is aimed primarily at applying autonomous concepts in practice, prima facie, by the judiciary.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2022-00092022-09-23T00:00:00.000+00:00Draft Legally Binding Instrument on Business and Human Rights – Is UN Stepping Twice into the Same River?https://sciendo.com/article/10.2478/iclr-2022-0010<abstract> <title style='display:none'>Summary</title> <p>Discussions of preventing and addressing adverse impact of business activities on human rights have occupied international community at least for the last fifty years. This article discusses successes and failures of past attempts, a state of play of negotiating legally binding instrument and alternative approaches to the current path. It suggests that the way forward for a successful treaty on business and human rights is maintaining key objectives of the draft, namely access to remedy and justice for victims of corporate abuses, balanced with cross regional support among States. Alternative approaches may be worth exploring if they would promise of delivering this balance. In this context, a new group of friends may contribute to changing of dynamics of discussions and mindsets of key players.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2022-00102022-09-23T00:00:00.000+00:00Post-Brexit European Map: the New Continental Status Quo and Institutional Decision-Makinghttps://sciendo.com/article/10.2478/iclr-2022-0011<abstract> <title style='display:none'>Summary</title> <p>Brexit became part of the European public consciousness following the 2016 referendum. We are only just starting to realize the actual effects and consequences of the UK’s withdrawal in multiple issues. The article analyzes the new, post-Brexit continental status quo and the changing trends in institutional decision-making. The position and dominance of the Member States are reflected in their role in the EU institutions. The weight of the Member States in decision-making also has a significant impact on the development of individual common policies. Brexit has strengthened the dominance of Germany and France. However, it also affected the position of Central and Eastern European states. Poland has become one of the “big Member States” that could make the combined dominance of the Visegrád states (Poland, Czech Republic, Hungary, and Slovakia) more relevant in forming the future of the EU..</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2022-00112022-09-23T00:00:00.000+00:00The Ship as an Extension of Flag State Territory and an Entity with Human Attributes – Is it Time to Jettison These Legal Fictions?https://sciendo.com/article/10.2478/iclr-2021-0011<abstract> <title style='display:none'>Summary</title> <p>This article questions the need for the use of two legal fictions in modern maritime law: that a vessel/ship can in certain instances be treated as an extension of flag state territory; that a vessel/ship is an entity with human attributes. The article addresses the first ‘fiction’ mainly in the context of applicable international law as well as English law; the second ‘fiction’ is addressed mainly in the context of English law although selective reference is made to both primary and secondary legal sources from the United States. The article concludes that the two fictions are only of limited value in modern maritime law.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2021-00112022-03-29T00:00:00.000+00:00Asia and the ICC: The Development of International Criminal Law in a World Changing Orderhttps://sciendo.com/article/10.2478/iclr-2021-0017<abstract> <title style='display:none'>Summary</title> <p>Although Asia houses over 50 percent of world’s population, it is under-represented in the ICC. This underrepresentation is due to rationales both legal and political in nature. While the Asian nations do lack enthusiasm towards ratifying the Rome Statute, there could be tangible benefits to becoming a part of the ICC. This could help in the ongoing development of international law in Asia as well as greater recognition of human rights, international justice and accountability, thus, further emphasizing the importance of the rule of law in the continent. The benefits of ratifying the Rome Statute outweigh any disadvantages, real or perceived, and thus, domestic steps need to be undertaken to lead to eventual ratification. This paper will trace the histories of International Criminal Law and analyse the Asian participation in its discourse while further exploring the reasons for the disinclination of the Asian nations to join the ICC.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2021-00172022-03-29T00:00:00.000+00:00National Identity and Judicial Minimalism: Exploring The Cjeu’s Restraint in Adjudicating National Identityhttps://sciendo.com/article/10.2478/iclr-2021-0014<abstract> <title style='display:none'>Summary</title> <p>Even thought the Court of Justice of the EU has already decided a number of cases dealing with national identity, judicial clarification of the concept is still missing. On the contrary, the reasoning employed in the Court’s case-law leaves a lot to be desired. This article explores the reasons that lead the Court to underarticulating its decisions in identity cases. I argue that the Court’s minimalism in adjudicating national identity is rooted not only in reasons driving the Court’s general minimalist approach, but also in considerations specific to identity cases. These reasons include the national identity’s inherent potential to hinder European integration, the sensitivity of determining the content of Member States’ national identities by a supranational court, the attempts to obscure the Court’s receptivity of identity arguments, and the potential to widen the applicability of its identity rulings.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2021-00142022-03-29T00:00:00.000+00:00Dualistic Data Property Right: Solution for Controllership of Data in the European Union?https://sciendo.com/article/10.2478/iclr-2021-0013<abstract> <title style='display:none'>Summary</title> <p>Personal data are new assets in the digital economy. While personal data are protected by GDPR in the European Union, its economic value is not protected. Unless, the economic value of personal data is addressed in legal systems of Member states, the interests of people are not fully covered. The article aims to fill the vacuum by introducing new property right to data, the dualistic data property rights. The dualistic data property right is conceptually inspired by Copyright. The article proposes the character and content of the right that is in line with existing legal system and GDPR as well. The authors embark on analyses of all aspect of the dualistic property right and its benefits for the digital economy.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2021-00132022-03-29T00:00:00.000+00:00A New Regime on Protection of Public Procurement Against Foreign Subsidies Distorting the Internal Market: Mighty Paladin or Giant on the Feet of Clay?https://sciendo.com/article/10.2478/iclr-2021-0016<abstract> <title style='display:none'>Summary</title> <p>As a response to possible distortive effects of foreign subsidies, which are not covered by the current rules of the World Trade Organization and primary and secondary law of the EU, on 6th May 2021 the European Commission introduced a new regime against foreign subsidies by introducing the proposal of the Regulation on foreign subsidies distorting the internal market. This new proposal includes three so-called modules: a set of measures of general application that governs the <italic>ex officio</italic> review of subsidies (Module 1), specific rules on concentrations (Module 2) and specific rules in public procurement in the EU (Module 3). The paper will focus on some of the features of Module 3 and assess the context, feasibility, and possible consequences for the course of public procurement in the EU covered by the public procurement directives</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2021-00162022-03-29T00:00:00.000+00:00Military Necessity and Cultural Heritage Protection in Laws of War: Historical Overviewhttps://sciendo.com/article/10.2478/iclr-2021-0018<abstract> <title style='display:none'>Summary</title> <p>The article examines the development of the concept of military necessity in relation to cultural property. Starting from 18th century and Emmerich de Vattel it continues to codifications of International Humanitarian Law in 19th century and finally focuses on 1954 Hague Convention and its 1999 Second Protocol. The article underlines the most significant trends in the development and aims to illustrate increasing respect for cultural property during the conflict. In its final section it presents more current issues related to cultural property protection and armed conflict: inclusion of human rights protection and matter of dual-use objects. Both questions are introduced in decision of the International Criminal Tribunal for the Former Yugoslavia in <italic>Prlić et al.</italic> case that investigates destruction of Stari Most in Mostar. The decision shows that some new elements have to be considered in assessment of military necessity related to cultural property.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2021-00182022-03-29T00:00:00.000+00:00The Interrelation Between the EU Charter of Fundamental Rights and the Schengen Agreement: The Ne Bis in Idem Example Through the CJEU Case Lawhttps://sciendo.com/article/10.2478/iclr-2021-0012<abstract> <title style='display:none'>Summary</title> <p>The ne bis in idem principle is of fundamental nature to the legal order of every democratic society. The concept of this principle refers to the prohibition, on behalf of State authorities, on prosecuting the same person more than once for the same conduct. In two preliminary ruling procedures, the national courts set questions to the Court of Justice regarding the compatibility of articles 54 and 55 CISA respectively with article 50 of the EU Charter of Fundamental Rights. In the first case, the Court ruled that article 54 CISA is compatible with article 50 of the Charter whilst, in the second, the Court, essentially, found unnecessary to reply to the question. The aim of this paper is to offer a review on the impact of these two judgments in the formulation of article 50 of the EU Charter and subsequently, propose an alternative approach on the interpretation of this provision, in line with the core of the ne bis in idem principle, in order to underline the significant role of the Charter in the future of the Union.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2021-00122022-03-29T00:00:00.000+00:00Integration Model of the European Economic Area: Symmetric or Asymmetric?https://sciendo.com/article/10.2478/iclr-2021-0020<abstract> <title style='display:none'>Summary</title> <p>Research in this article is focused on the analysis of the character of the European Economic Area. It presents a common market for thirty states from European Union (27) and European Free Trade Association (3) established by the Agreement on the European Economic Area. When regarding the size, EU is the bigger player in this relationship compared to EFTA States. On the other side, regarding the principles of international law, parties are equal to each other. These initial thoughts raised author´s interest to find out, whether this economic integration model is symmetric or asymmetric in its nature, regarding its contracting parties. Article provides an answer to this question as well as an insight on the consequences of such regime.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2021-00202022-03-29T00:00:00.000+00:00A Migrants’ Right to Respect for Family Life – The Problematic Developments of the European Court of Human Right’s Case Lawhttps://sciendo.com/article/10.2478/iclr-2021-0021<abstract> <title style='display:none'>Summary</title> <p>This paper analyses the inconsistency in the case law of the European Court of human Rights when applying Article 8, the right to respect for family life, of the European Convention of Human Rights in the immigration context. Even though Article 8 has permeated the area of immigration policy, critics claim that the case law has shown a number of extremely problematic developments. The main question of the paper is how the Court can be more consistent when determining a States’ compliance with Article 8. It examines whether the use of the same compliance test for all immigration cases could offer a more structured framework. The paper also explores additional adjustments in the application of Article 8 in order to improve the current development of the inconsistent case law.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2021-00212022-03-29T00:00:00.000+00:00en-us-1