Applicable Legal Framework Research Articles

Gender-Based Positive Action in Employment in Europe: A Comparative Analysis of Legal and Policy Approaches in the EU and EEA

This report considers the use of ‘positive action’ as a key mechanism to advance women’s equality in employment, and to ensure gender-balanced company boards. ‘Positive action’ involves the use of measures that are taken by Governments or other actors to: enable or encourage members of ‘protected groups’ (such as women) to overcome or at least reduce current or past disadvantages (including discrimination); to meet the needs of the protected group that differ from other groups; or to enable or encourage those in the protected groups to participate in a particular activity where they might otherwise be under-represented. The report identifies the current legal and regulatory frameworks and scope of positive action in European Union law and policy, and in the 28 European Union Member States (including the United Kingdom), and the three members of the European Economic Area (comprising Iceland, Liechtenstein and Norway). The report aims to lay bare tensions and gaps that may arise in the applicable legal framework between different levels of legal authority, but in particular between EU law and national approaches to positive action. Addressing this issue involves a reflection on whether there are possible inconsistencies or shortcomings in the current EU legal treatment of positive action (including the jurisprudence of the Court of Justice of the European Union). In light of this analysis, the report makes recommendations for possible European Union action, including suggestions for actions that may be included in any forthcoming EU gender strategy.

The law of the sea and current practices of marine scientific research in the Arctic

The rapid changes in both climate and human activity occurring in the Arctic Ocean demands improved knowledge about this region. Combined with eased accessibility due to reduced sea ice cover and new technologies, this has led to increased research activity in the region. These circumstances put pressure on the applicable legal framework, i.e. the United Nations Convention on the Law of the Sea. Therefore, a conversation is needed between legal and marine scientists to promote the alignment between the legal framework and current practices of marine scientific research in the Arctic. This article showcases three current practices of marine scientific research in the Arctic, which are subsequently analysed in light of the existing legal framework, highlighting the legal questions arising from the use of these three technologies. The three technologies analysed here are seabed structures off Svalbard, floating ice-tethered observatories deployed across the marine Arctic, and remote sensing activities paired with in situ measurements.

Cooperation in Defence and Security Procurement among EU Member States

Strengthening cooperation in defence and security procurement among Member States has become an important concern of the European Union. Because joint procurements reduce costs, facilitate cooperation and strengthen allies, the European Commission has encouraged Member States repeatedly to cooperate more strongly in such matters. The expected increase in cooperation creates a pressing need to familiarise oneself with the applicable legal framework – a need this paper seeks to satisfy. It focuses on cases, in which Member States charge one entity (which may be, for example, one of the Member States or an international organisation) with the procurement of security goods and services and proceeds in three main steps. First, it analyses the applicable procurement rules for both the external relationship between the entity and the supplier as well as the internal relationship between the entity and the participating Member States. In a second step, the paper proceeds in closely examining the narrowly confined exemptions found in EU primary law as well as the exemption framework of Directive 2009/81/EC. In its final section, the paper delineates the legal protection available to aggrieved parties with respect to both relationships. Keywords: Defence and security; Joint/collaborative procurement; Directive 2009/81/EC; Article 346 TFEU.

Legal Remedies for Public Private Partnerships in China

Although improving the quality and efficiency of public services, Public Private Partnerships (PPPs) are vulnerable to risks and disputes. Therefore, establishing effective legal remedies is of great significance to PPPs. In China, the existing regulations of remedies for PPPs have some problems, eg regarding aspects of the remedies’ subjects, triggering conditions, and methods. To improve PPPs’ legal remedies, the remedies’ subjects and triggering conditions should be broadened, the remedies’ methods should be reformed, and the applicable legal framework should be further improved. Keywords: public private partnerships, public procurement law, dispute resolution, legal remedies, China

Hacking und humanitäres Völkerrecht: die Hackergruppe Anonymus und die Syrische Elektronische Armee

This article discusses the cyberattacks, the status and legal obligations of the Anonymous Group and the Syrian Electronic Army under international humanitarian law (IHL). These hacker collectives have demonstrated a tremendous capacity to become involved in cyber operations, even in armed conflict situations. This article, using some of the most prominent attacks as the lens to read this phenomenon, analyses their role under the provisions of the law of war, examining which is the applicable legal framework (if any). It considers the treaty rules governing IHL but pays also attention to customary IHL and the Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations. It concludes by assessing the applicable legal framework, including whether these collectives can be regarded as organised armed groups belonging to a part of the conflict or considered otherwise, operating outside the framework of the law of war.

The Impact of the Medical Devices Regulation on the Pharmaceutical Industry: A Focus on Combination Products and Digital Health Technologies

This piece addresses the impact of Regulation (EU) 2017/745 on medical devices (MDR) on the pharmaceutical industry. The article approaches this from two different angles, both of which demonstrate the rising importance of new medical devices legislation across developing trends in the pharmaceutical industry. The first section concerns the MDR’s challenges for combination products. Before discussing the applicable legal frameworks, this paper starts by outlining an approach to defining and categorising combinations products. The implications of the MDR on the safety and performance requirements of certain combination products are further examined to clarify the expansions of the MDR’s scope of application. The second section of this paper focuses on the MDR’s approach to digital health technologies. The different ways in which software products are covered by the MDR is discussed, together with the consequences of rearranging such products in higher risk classes. Furthermore, the flexible notion of ‘economic operator’ is contemplated in terms of a pharmaceutical company’s activities in digital health. The reinforced obligations imposed on economic operators and a range of other legal issues in the lifecycle of digital health technologies that will be affected by the MDR are also considered.

The Use of Computer Applications in Public Audit (External)

The public audit is a mechanism of control that ensures that the public funds are allocated and used in accordance with the applicable legal framework. The Romanian Court of Accounts exercises the external public audit of public funds through the following types of actions: financial audit, performance audit and compliance audit. An efficient audit technique is represented by the use of the CaseWare IDEA (Integrated Data Extraction and Analysis) computer application, which offers extraction, totalization, sampling and editing functions to identify errors, problems, frauds and trends. The external public auditors of the Chambers of Accounts are trained and use, in part, the CaseWare IDEA computer application, obtaining significant results in terms of working time efficiency. It is proposed to further disseminate the findings made with the CaseWare IDEA computer application to external public auditors who do not use it and to increase the degree of training in using this software product.

INTERNATIONAL LEGAL STATUS OF THE OFFSHORE MOBILE OIL AND GAS INSTALLATIONS

Mobile offshore oil and gas installations are the essential infrastructural facilities for the oil and gas industry. The present-day offshore installations are able to explore, extract, store and offload hydrocarbons, thus ensuring the complete cycle of offshore fields development. Nonetheless, multifunctionality of mobile oil and gas installations makes it difficult to define their international legal status. Under the UNCLOS 1982, the mobile offshore oil and gas installations international status is uncertain. Due to dualistic nature, the mobile installations should be considered under the category of “instal- lations” during the hydrocarbons exploration and exploitation operations and be classified as “ships” while navigating. The article seeks to analyse a set of international law provisions, that define the mobile offshore oil and gas installations international legal status. It is intended to assess whether the existing legal regulations meet the needs of a present-day offshore industry. To this end, the article addresses the relevant provisions of international maritime conventions, that define the status of mobile oil and gas installations in accordance with their object and purpose. The study finds that there are at least four distinct approaches towards the definition of the mobile installations international legal status. The author concludes that the differentiated approaches towards the definition of the mobile installations international legal status for the object and purpose of the various maritime treaties is a substantial shortcoming of the applicable international legal framework. The study attempts to make the case for unification of a “dual approach”, that treats mobile offshore units as an “installations” or “ships” depending upon the function preformed. Elaborating further on the unification proposal the author argues for the improvement of the “dual approach” through the specific process-related criteria, that establish the exact moment of the international legal status change.

Legal perspectives on the protection of bilateral investment between China and Switzerland

ABSTRACTGiven the rapid increase of bilateral investments between China and Switzerland over the last decade, the legal framework applicable to foreign investment has become more and more sophisticated reflecting the various interests regarding foreign investment. These interests do not only include the protection and promotion of foreign investment in order to facilitate economic growth, but also the safeguard of the effective functioning of the markets as well as the protection of national security from undue influence by foreign actors. In light of this, this paper takes a comparative law perspective on the applicable legal framework for foreign investment flowing from China to Switzerland and vice versa. By doing so, it focuses on the rights of investors under the bilateral investment treaty concluded between the two countries as well as on two ex ante review mechanisms screening transactions involving foreign investment, this being merger control and national security review. Finally, it analyzes the possibilities of Chinese investors to enter the European Union market through investments made in Switzerland and draws lessons from the Swiss experience for a future bilateral investment agreement between China and the European Union. The paper finds that, with the exclusion of ‘letter-box’ companies, Chinese and Swiss investors can benefit from a high degree of protection provided in the bilateral investment treaty between the two countries, which can be enforced through investor-state arbitration. The merger review processes in the two countries are largely comparable, except for the fact that the Chinese merger review can potentially be based on non-competition factors. Regarding the safeguard of national security, the two countries adopt very different approaches. While China provides for a review mechanism for individual transactions, Switzerland has conducted a general risk assessment screening all potential transactions in the foreseeable future. The two approaches fit the respective circumstances of the two countries. With respect to access to the European Union market, Chinese investors in Switzerland can expect favorable conditions only regarding very specific sectors, this being civil aviation and insurance. In view of negotiations of a future bilateral investment agreement with the European Union, China could notably consider extending most-favored nation treatment to European Union investors with respect to market access.

Inked or Not: Maras and Their Participation in El Salvador’s Recent Armed Conflict

El Salvador remains one of the most violent countries in the world undergoing a murder epidemic. The blatant rise in social violence is driven mainly by gangs of the Northern Triangle countries (Guatemala, Honduras and El Salvador), which frequently clash with governmental security forces. The situation legally blurred the lines between the law enforcement and armed conflict regimes. An insufficient amount of time has been dedicated to identifying the applicable international legal framework to El Salvador’s extreme gang violence and its repression. Consequently, the country’s categorization of violence has not been addressed. For this purpose, a contextual background narration of the politics of violence in the country followed by a detailed analysis of the constituent elements of El Salvador’s urban violence were examined. The assessment of facts and their juxtaposition to international jurisprudential criteria and doctrinal contributions on conflict classification suggest the situation reached international humanitarian law’s armed conflict brink.

Aviation Safety vs. Medical Confidentiality: Disclosure of Health Information for Accident Prevention and Investigation.

INTRODUCTION: In this article an analysis is made of existing legal provisions and policies regarding medical confidentiality and the use of medical information on pilots, for the reporting of unfit pilots and for accident and incident investigation. An overview is given of the applicable international, European and several national legal frameworks in relation to this question. The applicable national legislation and relating policies of the Netherlands, the U.S., and Canada are compared on this subject. These three States (countries) are selected because of the differences between them in legal provisions when it comes to medical confidentiality of pilots' health information. The article will conclude with tools derived from this analysis, which can be used to find a balance between medical confidentiality vs. aviation safety.Schuite JM. Aviation safety vs. medical confidentiality: disclosure of health information for accident prevention and investigation. Aerosp Med Hum Perform. 2019; 90(10):872-881.

Towards adaptive coastal management: Lessons from a “legal storm” in Byron Shire, Australia

Adaptive management has been advocated as an appropriate approach for the management of social-ecological systems, although its implementation has proven to be a challenge. Legal systems can hinder or facilitate adaptive management. Focusing on legal arrangements, this article explores how adaptive management can be better operationalised in the context of coastal management. Byron Shire, a local government area in New South Wales, Australia, was selected as a case study where we: (a) analysed how the concept of adaptive management has emerged within the evolution of coastal management and its applicable legal framework, and (b) identified juridical constraints to adaptive coastal management. Qualitative methods were used for the analysis of relevant documents and semi-structured interviews with 23 key informants. The results show that a distorted version of adaptive management has been adopted in Byron Shire's draft coastal management plans, which fails to adhere to the formal, structured, and iterative process of adaptive management. A legacy created by the legal effects of past decisions affecting coastal management has led to a path dependency towards protective measures to manage coastal erosion, constraining other management options, particularly managed realignment strategies. Failure to address juridical constraints in the early stages of the adaptive management process can result in stakeholder conflict and litigation. Overlitigation harms adaptive coastal management by pushing the decision-making process away from the pathway offered by the legal framework for preparing and implementing coastal management plans. After recent legislative coastal reform at the state level, there is momentum for the Byron Shire Council to refocus its adaptive management approach. However, overcoming existing juridical constraints will require adaptive governance, in which all levels of government must work collaboratively with the affected stakeholders in the design and implementation of the adaptive management process.

Killing Wolves Legally: Exploring the Scope for Lethal Wolf Management under European Nature Conservation Law

This article seeks to identify to what extent, and under what conditions, lethal wolf management can be conducted in EU countries without violating applicable European legal frameworks, in particular the Habitats Directive. The analysis carried out to that end demonstrates that certain variables are tightly related with the options of EU member states to allow the killing of wolves under the Directive, namely (1) the conservation status of the populations in question; (2) the quality of the scientific evidence showing that the various conditions of the Directive's derogation clause are met; (3) the quality of supervision and regulatory safeguards in member states’ hunting regimes and wolf plans; and (4) the extent and quality of intergovernmental cooperation targeting transboundary wolf populations. As these variables improve, so does the scope for legally viable wolf hunting.

Repo Markets Across the Atlantic: Similar but Unalike

This paper sketches the key differences in the EU and the U.S. repo markets to inform the policy recommendations for harmonization and standardization of rules governing repo contracts put forward by the international financial fora and standard setters. In so doing, it examines three main aspects of the repo markets. First, it highlights the differences in the legal framework governing repo markets, such as legal construction of repo contracts, special insolvency treatment, and legal treatment of the reuse of collateral. Second, it discusses the composition, structure and organization of the repo markets, such as differences in the composition of repo participants, maturity of repos and the composition of the underlying collateral in repo contracts. Finally, it investigates the differences in the issues related to the market infrastructure of repo markets such as differences in the clearing and collateral management stages. The main finding of this paper is that in spite of significant efforts to standardize and harmonize repo markets as well as their applicable legal framework in the past, there remains significant differences across the Atlantic. Such differences in the legal framework, composition, structure and organization of repo markets and repo markets infrastructure would require differential and more nuanced approach to regulating repo markets than what is pursued by the current international financial standard setters.

Monitoring employees' e-mail correspondence and Internet use – A Finnish perspective – PART II

This contribution is published in two parts. In Part I, published in the previous issue of the European Labour Law Journal, the monitoring of employees’ e-mail and Internet use was examined in light of the Trade Secrets Directive 2016/943 and the Finnish Trade Secrets Act (595/2018), the case law of the European Court of Human Rights and the guidance of the Article 29 Working Party. Part II examines the Finnish legislation applicable to the monitoring of employees’ use of e-mail and Internet. It provides an understanding on the applicable Finnish legal framework as an example of a European national approach highlighting the divergence between the level of protection afforded in different EU Member States and to reflect on why the subject matter is so sensitive.

Monitoring employees’ e-mail correspondence and Internet use – A Finnish perspective – PART I

This article examines the prerequisites under which a private sector employer is and should be able to monitor its employees’ use of e-mail and Internet. For purposes of this examination, the article analyses the meaning of the Trade Secrets Directive’s provision requiring the trade secret holder to take reasonable steps to protect its trade secrets, in order to ascertain whether the provision requires the employer to monitor its employees’ e-mail correspondence and Internet use to gain the protection under the Trade Secrets Directive and the relevant Finnish legislation implementing the Trade Secrets Directive. The article also examines the relevant ECtHR case law, and especially the Bărbulescu case, as well as the Article 29 Working Party’s principles applicable to the monitoring of employees’ e-mail correspondence and Internet use. To provide a national context, the article examines the prerequisites under which a Finnish private sector employer may monitor its employees’ use of e-mail and Internet, or more specifically the prerequisites under which the employer may process traffic data, as well as the prerequisites under which an employer may open and retrieve its employees’ e-mails. The Finnish legislation applicable to e-mail and Internet monitoring is particularly interesting as it is significantly more restrictive for employers than the criteria set by the ECtHR and the Article 29 Working Party. Examining Finnish legislation in this context is also interesting, because there has been extensive public debate on whether having legislation in place that enables the employer under certain circumstances to monitor its employees’ e-mail correspondence is at all necessary and justified. Such views have first and foremost been supported by the argument that monitoring employees’ e-mails constitutes an intrusion into the employee’s right to privacy and secrecy of correspondence. Also, Finland is so far the only EU Member State that has enacted a specific act regulating the processing of employee data. The purpose of this article is to provide an overview of the prerequisites under which monitoring of employees’ e-mail correspondence and Internet use is permitted based on ECtHR case law (as well as the relevant guidelines issued by the Article 29 Working Party) and applicable Finnish legislation, and to reflect on the extent to which an employer should have the right to monitor its employees’ e-mail correspondence and Internet use, to ensure inter alia compliance and adequate protection of trade secrets. The purpose of this article is also to provide understanding on the applicable Finnish legal framework as an example of a European national approach highlighting the divergence between the level of protection afforded in different EU Member States and to reflect on why the subject matter is so sensitive.

Engineered Credit Default Swaps: Innovative or Manipulative?

Credit default swaps (“CDS”) are, once again, making waves. Maligned for their role in the 2008 financial crisis and condemned by the Vatican, investors are once more utilizing CDS to achieve results of questionable market benefit. A CDS is a financial contract that allows investors to “bet” on whether a borrower will default on its loan. However, rather than waiting to see how their bets pan out, some CDS investors are collaborating with financially distressed borrowers to guarantee the profitability of their CDS positions—“engineering” the CDS’ outcome. Under the CDS contract, these collaborations are not prohibited, yet they have roiled the CDS market, leading some market participants to view the collaborations as a sign that CDS are little more than a rigged game. On the other hand, some view “engineered CDS transactions” as an innovative form of financing for distressed companies. As engineered CDS transactions proliferate in the market, it becomes increasingly prudent to look beyond their contractual acceptability to assess whether, from a legal point of view, these transactions are permissible. Engineered CDS transactions demonstrate the challenges that the existing legal and non-legal framework face in effectively responding to new forms of market distortion. This Article examines the costs and benefits of engineered CDS transactions on the market as a precursor to determining whether legal intervention is needed. Assessment of the relative costs and benefits of engineered transactions indicates that despite their innovativeness, engineered CDS transactions are largely detrimental to the markets because they impose costs on actors unaffiliated with the CDS market and, more broadly, destroy public trust in the financial markets. Yet, despite their associated harms, this Article demonstrates that, legally, engineered transactions exist in a gray space. This Article analyzes the phenomenon of engineered CDS transactions, assessing the capacity of applicable legal frameworks, private standards, and market discipline, to address these transactions and finds each to be lacking. Thus, this Article proposes a range of responses, including modernization of the existing anti-manipulation framework, to mitigate against the harm and collateral consequences that stem from engineered CDS transactions.

Change of Circumstances and Force Majeure Clauses in Serbian Legal System and Sources of International Uniform Law

Abstract The effects of globalisation are many. One of them is the effect that globalisation has on commercial contracts and contractual relations between contracting parties. Due to a fast pace of economy and the speed and volume of the conclusion of contracts in international trade, participants must rely on stable and reliable legal framework for contractual obligations. In globalised economy, traders from different countries bring with them individual trade practices and norms of national legislation, often diametrically opposed, and sometimes the legal institutes that are regulated in one country don’t even exist in another. This is the case with the institutes of force majeure and a change of circumstances. Due to large differences in the regulation of these two institutes in national legal systems, there have been demonstrated some attempts of standardisation and creation of a unified system of exemption from liability for non-performance, due to force majeure or a change of circumstances. This problem becomes even more evident when dealing with the long term contracts, which are prone to the effects of unforeseen circumstances. This paper aims to explore the nature of the above mentioned legal institutes in some of the most important sources of international commercial law. With a special attention paid to the Serbian regulatory solutions, in order to further understand the similarities and differences between the national legal systems and sources of international law. The first part of the paper deals with applicable legal framework in Republic of Serbia, concerning force majeure and a change of circumstances. The second part of the paper deals with the international sources of commercial law, such as UN Convention on Contracts for the International Sale of Goods of 1980; UNIDROIT Principles of International Commercial Contracts; Principles of European Contract Law; Draft Common Frame of Reference; and Common European Sales Law.

Intermodal Air-Rail Agreements: Legal Aspects and Considerations

Intermodal air-rail forms of cooperation have proliferated over the last decades as a response to the need for more efficient and strategic alliance in the transportation industry. Airlines and rail operators have indeed concluded formal agreements allowing them to synchronize services and offer an ever more seamless travel experience. While such agreements certainly generate significant benefits for both consumers and carriers, integration between airlines and rail operators may also raise serious concerns as to the applicable legal framework. In light of this, the present article will emphasize on the main legal implications of air-rail agreements. The analysis will consider three areas of interest, namely, competition law, liability and passenger protection. Whereas in terms of competition law, the same legal categories applicable to airline code-shares and alliances may be easily and conceptually borrowed, peculiar and interesting legal issues seem to arise out of the comparison of different international and European legal regimes with respect to liability and passenger protection.

Uniting for Peace Not Aggression: Responding to Chemical Weapons in Syria Without Breaking the Law

In April 2018 in response to a chemical weapons attack in Syria, the USA, UK and France attacked Syrian chemical weapons facilities without Security Council authorisation. The intervention was illegal but widely supported. The events epitomised a declining respect for the international rules on the use of force and for the international institutions charged with implementing those rules-a trend that has correlated with an escalation in violent conflict throughout the world. In other words, the credibility of international law and institutions is declining just as we need them most. This article describes the chemical weapons attack in Syria in April 2018, the retaliatory strikes, and the justifications and reactions that followed. It then describes the applicable legal framework (the UN Charter, humanitarian intervention, the responsibility to protect and the Chemical Weapons Convention), and the normative implications of the strikes. It is argued that international law recognises neither a right of humanitarian intervention nor a right to use force to prevent the use of chemical weapons. What international law does recognise, as articulated in the General Assembly's Uniting for Peace Resolution, is the residual responsibility of the General Assembly to maintain international peace and security when the Security Council fails. It is argued that where the Security Council has clearly failed to exercise its responsibility, it is incumbent upon the Council through procedural vote to refer the situation to the General Assembly, and it is then incumbent upon the Assembly to act on its secondary responsibility. This is an under-utilised procedure that allows concerned States to respond to atrocities such as those in Syria without breaking the law.