Doctrinal Approach Research Articles

Appraisal of Challenges Confronting Recognition and Enforcement of Arbitral Awards in Nigeria

Arbitration is an alternative dispute resolution method often commenced by express agreement of parties in a dispute. Arbitration has become an increasingly preferred method of settling commercial disputes and thought to have advantages over the traditional litigation. However, a problem could emerge where one party to the arbitration is unwilling to comply with the terms of the award. In this case a successful party is left with no option than to use the enforcement machinery of the courts. This paper adopts the doctrinal approach in discussing the issues with the procedure provided for in the various rules of courts for recognition and enforcement of arbitral awards. It also identifies the challenges inherent in the recognition and enforcement of arbitral awards. The paper identifies other enforcement machineries outside the courts and concludes that arbitration, if not properly managed may ultimately cause delay in enforcement and become a time wasting method therefore defeating the very essence of opting for arbitration instead of litigation. Keywords: Challenges, Recognition, Enforcement, Arbitral Award

Allah Yang Menderita sebagai Kekuatan Menghadapi Penderitaan

This paper describes the suffering God as strength in facing suffering. This research departs from the philosophical-theological issues about evil and suffering in relation to the existence of God; If God exists why is there evil and suffering? Philosophy by using pure reason tries to keep looking for answers to the problem and the final answer is that there is no satisfactory answer. Whereas theology, based on revelation and with the help of reason, provides the final answer that closes the entire series of questions, namely that evil and suffering are mysteries. Humans will not get a definite answer to this problem, but one thing that is certain is that humans experience evil and suffering in the world. Therefore, there are two main problems involved in this research. First, what is the philosophical-theological view of the existence of God in relation to the phenomenon of evil and human suffering? Second, what is the Christian response to human suffering in light of the event of God suffering? This study uses a qualitative method with a doctrinal approach. This research more or less refers to the Encyclical Salvifici Doloris from John Paul II, the Encyclical Spe Salvi from Benedict XVI, and the book Iman Katolik: Buku Informasi dan Referensi from the Indonesian Bishops' Conference. This research found two things, first, Christ's suffering on the cross is proof of God's existence. Second, the God who suffers is strength in the face of suffering.

PERLINDUNGAN HUKUM BAGI NASABAH PADA PINJAMAN ONLINE MENURUT HUKUM EKONOMI SYARIAH

This article aims to examine the legal protection for customers in the implementation of online-based money loans or known as online loans (pinjol). The research method used is a doctrinal approach where the author will examine legal norms related to customer protection according to the Banking Law, and a number of Financial Services Authority (OJK) regulations related to pinjol. The results of this study conclude that there are several phenomena that occur in the implementation of pinjol that do not get legal protection for customers, namely: First, the determination of interest that does not refer to the interest rate provisions of Bank Indonesia, second, the maximum interest setting on online loans in fintech companies is 0.4 percent per day but the amount of real interest is not regulated in the agreement. Third, Financial Services Authority Regulation No.77/POJK.01/2016 on Information Technology-Based Money Lending and Borrowing Services OJK Regulation No.77 of 2016 is the basis for the implementation of Peer to Peer Lending business activities or online lending and borrowing which is one of the types of fintech, including the protection of customer personal data. Customer personal data collected by fintech providers must be kept confidential in accordance with applicable privacy provisions.  

Effectiveness of Legal Anti-Corruption Mechanisms in the Financial Sector

The relevance of the issue under research is determined by the growing corruption in the financial sector during the last decades. Combating corruption in this field will depend on the effectiveness of the legal anti-corruption mechanisms in the financial sector. The aim of the article is to analyse the effectiveness of legal anti-corruption mechanisms in the financial sector using the case of Ukraine and to provide recommendations for increasing such effectiveness. The factors that reduce the effectiveness of legal anti-corruption mechanisms in the financial sector of Ukraine were identified through content analysis, doctrinal approach, comparative methods, analysis of legal acts and abstract logical method. As a result of the research, directions for increasing the effectiveness of such legal mechanisms are proposed. The recommendations formulated in the work can be applied to the improvement of such mechanisms both in Ukraine and in other countries, in particular EU countries. Future research prospects may include providing recommendations for improving the effectiveness of legal anti-corruption mechanisms in the financial sector of other countries, taking into account their specifics.

Demystifying the Network and Cloud Forensics’ Legal, Ethical, and Practical Considerations

As cybercrimes grow more sophisticated, network and cloud forensics have become vital investigative tools. However, complex legal, ethical, and practical challenges around extraterritorial evidence, privacy rights, volatile data, and specialized skills constrain these processes. This study critically reviews academic literature and industry reports to examine these multifaceted considerations holistically. It aims to aggregate the latest insights around regulations, technical protocols, certification regimes, and international cooperation frameworks shaping network and cloud forensics. The study follows qualitative research methodology, a doctrinal approach used for the analysis of regulation, and grounded theory used for the analysis of related literature. The results reveal gaps around the liability limitations of internet service and cloud providers, ethical bounds for ancillary data collection, and anti-forensic obfuscation techniques. Proposed solutions include accountability in technology design through transparency and oversight. Simplify procedures for cross-border legal assistance requests. Develop lightweight encryption methods that still enable lawful access as well as promote collaboration between industry and academia to advance cybersecurity tools.

International Mechanisms for the Protection of Children’s Rights in Armed Conflict

The relevance of the work is determined by the need to improve the protection of children’s rights as the most vulnerable category of the population during the military conflict. The study aims to analyse the existing international mechanisms for the protection of children’s rights during the armed conflict and their effectiveness using the case of Ukraine. The work employed a doctrinal approach, the method of comparative law, a statistical method, and a content analysis. The research established that at the international level, there is an extensive system of legal documents and relationships between countries and international organisations aimed at protecting children’s rights during military conflict, but this system cannot provide the expected results. Using the case of Ukraine, it was proved that children’s rights are regularly violated in the war with Russia: 512 children were killed, and 1,158 were injured as of December 14, 2023. In Ukraine, numerous measures are taken to protect the children’s rights during the armed conflict. International cooperation plays an important role, but protective mechanisms still need significant improvement. The research results are useful in improving government measures related to protecting children’s rights in armed conflict.

THE LEGAL CAPACITY (AL-AHLIYYAH) OF ARTIFICIAL INTELLIGENCE FROM AN ISLAMIC JURISPRUDENTIAL PERSPECTIVE

Capacity is the legal right and empowerment of a legal person to individual responsibility. A legal person has the right to social, economic, and political duties and responsibilities in the society to sue and be sued in the law court. However, the issue of artificial persons has been gaining attention in recent times, especially its legal capacity. This paper examines the legal capacity of Artificial Intelligence from Islamic jurisprudential perspective. For instance, legal and juristic issues remain around the legal capacity of humanoids like Sophia Robot which was granted the first full citizenship in Saudi Arabia. Does that citizenship translate to full rights and responsibility like a normal human? The study uses a qualitative method to employ the doctrinal approach of analyzing Islamic jurisprudential opinions on the legal personality of an artificial person. Although there are Islamic thresholds on minors and other interdicted persons, however, the study explores the extent of interpolating classical Islamic rulings of the legal capacity of certain corporations, entities, and interdicted persons on the artificial intelligence robot. The study found that an artificial intelligence robot does not have the complete traits to be considered for natural legal capacity. However, AI has the trait of artificial personality that is justified in Islamic jurisprudence. The vicarious tortious liability can be interpolated on the artificial personality of AI to ensure the protection of the public interest. Therefore, this study lays the groundwork for further studies in understanding how Islamic law can address the rights, responsibilities, and ethical considerations surrounding the use of AI, thereby facilitating the development of comprehensive, and religiously sensitive regulatory frameworks.

A börtönlelkészi szolgálat alapjogi vetülete – a jogdogmatikán innen és túl

Aim: This study aims to examine the ministry of prison chaplains in the context of fundamental rights, in particular freedom of thought, conscience and religion.Methodology: The analysis uses the legal doctrinal approach of fundamental rights as its primary method of research. This is complemented by a public law context going back to the regime change and an international perspective, which are common tools of comparative method of legal scholarship and provide reference points in the analysis.Findings: Prison chaplaincy is linked to both the individual and collective aspects of religious freedom, and there is both a rights and obligations side to this fundamental rights relationship. The paper will discuss the fundamental rights of prison chaplaincy, including the right of prisoners to individual and collective religious practice, as a subset of freedom of conscience and religion in the period since the change of regime. Finally, the paper briefly reflects on the case law of the European Court of Human Rights on the exercise of religion by prisoners.Value: The study contributes to the complex issue of religion and reintegration through an analysis of constitutional law.

Deprivatization: current judicial practice

The article considers the legal framework and trends of judicial practice in claims for the recovery of previously privatized assets. The purpose is to identify risk factors for the deprivatization of enterprise property, as well as circumstances affecting the prospects of possible litigation. The authors used such research methods as logical, theoretical-prognostic, formal-legal, system-structural and legal modeling methods. The methodological apparatus consists of the following dialectical techniques and methods of scientific cognition: analysis, abstraction, induction, deduction, hypothesis, analogy, synthesis, typology, classification, systematization and generalization. The authors analyzed relevant legal cases within the context of legal regulation and doctrinal approaches to the interpretation of civil legislation. It is concluded that violation of the privatization procedure means the absence of the will of the public owner to property alienation. As a result, the public owner has the opportunity to claim property even from a bona fide purchaser. Shares in the authorized capital of companies, and individual objects (buildings, structures, movable property) are subject to deprivatization. The basis for the claim of property in favor of the state is most often the privatization of property classified as federal property, with the approval of only regional authorities as well as the privatization of property in respect of which prohibitions and restrictions are established. It is stated that the courts reject references to the expiration of the limitation period, at the same time, judicial practice regarding the application of objective limitation periods has only begun to form. Considering the specifics of the participation of public legal entities in civil turnover, the authors conclude that it is necessary to clarify the established practice of applying law by the Constitutional Court of the Russian Federation.

RECOGNITION AND ENFORCEMENT OF FOREIGN COURT DECISIONS IN THE CASE LAW OF THE CONSTITUTIONAL COURT OF REPUBLIC OF KOSOVO

Background: To respect international cooperation, human rights and legal certainty, it is possible to recognise the legal effects of foreign judicial decisions in another state, provided that the procedure for recognising a foreign judicial decision takes place and that such court decision fulfils the requirements set by local legislation. Recognition, as a concept, entails acknowledging the rights and obligations established in the originating jurisdictions and accepting juridical consequences. Enforcement, on the other hand, means fulfilling the obligation, allowing the creditor to realise his/her right and to ensure that the debtor has obligations and obeys the decisions that have already been made. International collaboration should facilitate the codification of Kosovo's legal framework on private international law, allowing for the recognition and enforcement of foreign decisions to be less complicated, more extensive, and more easily applicable. In comparison to prior solutions, the new law makes significant adjustments. Previous norms are being abandoned in favour of open links and jurisdictional criteria. Some prior solutions are preserved and, if necessary, changed and improved. Methods: The doctrinal approach involves the systematic identification, collection, and application of legal literature within the domain, encompassing statutes, texts, articles, and scholarly research by both local and international authorities. Additionally, the method involves a meticulous analysis of judicial practices, evaluating the practical implementation of legal standards and their judicial interpretations. Through examining legislation, our approach not only identifies legal issues but also furnishes a scholarly interpretation of the laws governing the field of study and its related institutions. Results and conclusions: Kosovo, as a relatively new state, has established a legislative framework through which it attempts to address problems and the path that must be taken in the implementation of foreign judgments. In general, the goal of having a democratic and well-developed society also means respecting the rights and decisions of foreign citizens, the rights that originate from the judicial decisions of international courts and the internationally accepted conventions. The harmonisation of the legislation and its compliance with ECHR conventions creates real opportunities for Kosovo to be ranked among the countries that respect these decisions. The legal system of Kosovo, as well as decisions made by the Constitutional Court, have produced results that can be used to influence future cases. The codification of private international law in Kosovo means that numerous circumstances will now have a legal basis for implementing foreign decisions.

On the issue of legislative regulation of the status of federal territories in the Russian Federation

In this article the authors’ concept of certain provisions of the framework Federal Law ‟On Federal Territories” is presented. The researchers proposed a structural vision of the future legislative act, concretised the norms defining the general principles of the legal status of federal territories: the subject of regulation and the purpose of the adoption of the federal law, basic terms and concepts, the principles and procedure for the formation of federal territories, their types, the purpose and grounds for the creation of federal territories. The article also analyses the legal foundations and doctrinal approaches mediating the procedure for the creation and functioning of territorial units of a special type in the system of public authority of the Russian Federation.

Доктринальные подходы к понятию «национальная безопасность» и его соотношение со смежными понятиями и категориями

The article discusses doctrinal approaches to the concept of national security and its correlation with related concepts and categories. The author notes that an attempt to develop the concept of national security by summing up individual elements of this phenomenon is counterproductive. Analyzing various approaches to this problem, the author concludes that the simple “summary approach”, peculiar to modern science, should be replaced by a systematic approach.

Legal liability: seven doctrinal approaches to understanding its essence

The article provides a critical analysis of the civil law doctrine of understanding the “legal liability” category. Seven main approaches to the interpretation of the category under study are identified and their advantages and disadvantages are highlighted. The author concludes that neither current legislation nor legal doctrine is consistent on the issue under study.
 The author emphasises that the doctrine of legal theory distinguishes two types of legal liability: positive (relating to an offence not yet committed) and negative (relating to an offence already committed). The critical analysis of this approach is that such different legal phenomena as proper performance of duties and liability for their violation cannot be covered by the same legal concept – “liability”. As a result, the author makes a reservation that positive responsibility can be spoken of as a type of social liability, but not legal one. Thus, in the context of civil relations, legal liability should be referred to as negative liability. Positive liability is rather a moral phenomenon, which consists in the subject's conscientious (responsible) fulfilment of all legal principles.
 Based on the analysis of the doctrinal approaches to understanding the category of “legal liability” and their critical assessment in the legal literature, it has been noted that it is inappropriate to formulate a universal (generally accepted) definition of the concept under study today. This assertion is based on the fact that in many cases, experts seek to combine numerous and diverse features of legal liability into a definition which leaves out specific manifestations of various aspects of its phenomenon.
 It has been proved that the current doctrinal approaches to the understanding of legal liability can be reduced to two main areas: its study as a form of state coercion/influence or as a protective legal relationship.

The status of the African Charter on Human and Peoples’ Rights under the South African legal system

The relationship between international law and South African legal order has been much examined. However, that of the African Charter on Human and Peoples’ Rights and the South African legal system has not been seriously explored. Therefore, this article examines the status of the African Charter under the South African legal system. It adopts a doctrinal approach and analyses ss 231(4), 231(5) and 232 of the Constitution of the Republic of South Africa, 1996 within the context of South African law and international human rights norms in Africa; and how South African courts have treated the African Charter. It finds that the African Charter has not been enacted into law under s 231(4), implying that it does not operate in South Africa and that South African courts have not seriously regarded the African Charter. Nonetheless, it argues that the Charter directly operates in South Africa under s 231(5) as a deemed Act and as customary international law under s 232. It further argues that the Charter as a deemed Act is inferior to the Constitution, maintains a co-ordinate status with other Acts implementing human rights treaties, higher in status than other Acts implementing other treaties and ordinary Acts. As customary international law, the Charter is inferior to the Constitution and statutes but higher than common law. Both the Charter as a deemed Act and as customary international law operate at the same time in South Africa. It concludes that the African Charter is a statute in South Africa and that South African courts have no choice but to apply it when required.

Legal Aspect in Peace Keeping Operation and Nepal

The United Nations (UN) Charter is the constitution of the UN, that underpins the operational framework of the UN, encompassing the peacekeeping mission to create conditions for lasting peace in conflict-torn countries. Nepal involved in all peace initiatives taken by the UN and largest troop contributor to the UN peacekeeping missions carrying the beacon of peace in the world initiated by Nepal’s enlightened son, Gautam Buddha. This study aims to identify the legal basis of the UN peacekeeping operations implied in the UN Charter and other international law concerning the influence of Buddha’s teaching of peace and non-violence on the global norms of peace. This study also aims to analyze Nepal’s adherence to human rights law and humanitarian law, as well as the legal aspects of Nepal’s participation in UN peacekeeping operations. Methodologically, the study follows a doctrinal approach, focusing on the examination of legal doctrines. The researcher draws upon multilateral conventions, resolutions of the General Assembly and Security Council, decisions of the International Court of Justice, reports, Nepal’s correspondence to the UN, speeches by the Nepali delegation in the UN General Assembly, Nepali laws related to UN peacekeeping, and journal articles as sources of data. This paper argues that as a birthplace of Buddha, Nepal needs to negotiate with the UN to expand its role in securing policy-level and command-level positions in UN peace initiatives, enabling it to contribute more to enhance the legal norms for peacekeeping operations with oriental knowledge of world peace.

Waiver to apply the European Convention for the Protection of Human Rights and Fundamental Freedoms in the resolution of disputes in the Court of Arbitration for Sport (CAS)

The subject. Sports legal relations, as having a private legal nature, and assuming “horizontal” inter-subject relations by default, do not imply the extension to them the guarantees provided by international acts in the field of human rights protection in order to protect the individual in “vertical” interaction with public subjects. However, this doctrinal approach is still questioned by sports actors, who make attempts to refute it through the involvement of certain norms of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) (Articles 6 and 8, mostly) as arguments in sports disputes. An additional incentive for this is the location of international and continental sports federations, their jurisdictional bodies and the Court of Arbitration for Sport (CAS) in the national legal orders that recognize the application of the mentioned ECHR.The purpose of the study. The prospects of arguments in the resolution of sports disputes based on the requirements of the literal use of the norms of the ECHR are considered in this article.Methodology. Methods of analysis and comparison based on the CAS practice.The main results of research and the field of their application. The use of only certain meanings of part 1 of Article 6 of the ECHR in sports justice is forced to be taken into account by CAS due to the prospect of appealing decisions to the Swiss Federal Tribunal.Conclusions. The norms of the ECHR generally do not apply in sports justice.

Восточное Средиземноморье и сирийский вопрос во внешнеполитических приоритетах России и США

Russian and foreign specialists continue to maintain their research interest in the Eastern Mediterranean, both in view of the energy potential of the region as well as unresolved security issues. This article considers the role of global powers – Russia and the United States – in the Eastern Mediterranean from the point of view of the theory of the regional securitycomplex. An attempt was made to determine the interests and priorities of Moscow and Washington on the basis of an analysis of the doctrinal approaches of both states in the identified subcomplex. Approaches of the two states to the Syrian issue were analyzed as well. The subordination of the “Syrian portfolio” to other policy issues of Russia and the United States is shown, as well as global powers’ policy evolution towards this key crisis for world politics. Despite the strategic desire to stabilize the region and exit from regional conflicts, Russia and the United States retain interests that will require their presence, albeit limited. The article indicates the influence of the states of other sub-complexes of the Middle East regional security, primarily the Persian Gulf, on the Levant and, more broadly, the mesoregion of the Eastern Mediterranean, as well as the growing weight of regional powers in general.

Privileges as a legal category: theoretical and legal aspect

In the content of the work, the author analyzed the phenomenon of legal benefits through the prism of their cognitive regularities and their potential as a basis for improving the conceptual and categorical apparatus of legal science. The relevance of the research topic and the importance of modernizing the understanding of legal benefits in the modern conditions of their application in the mechanism of legal regulation are noted. The cognitive features of the subject of this article have been established.
 The author emphasized that the current conditions of the development of legal regulation both in Ukraine and in most post-Soviet countries determine the need for a doctrinal rethinking of all legal means of regulation, especially in terms of their nature, functional purpose and role. The key means of legal regulation are legal benefits, which are designed to ensure the establishment of special, softer conditions of legal regulation, based on the principle of expediency and social justice. The use of legal privileges is especially relevant in the modern conditions of the development of legal regulation, which is accompanied by new threats associated with the outbreak of hybrid wars, a significant increase in the number of armed conflicts on the political map of the world, a significant increase in the level of their aggressiveness, etc. In such conditions, the question of both the scientific rethinking of the regulatory and protective possibilities of legal privileges, and the expansion of the practical limits of the application of legal privileges in improving the regulation and protection of the rights, freedoms, and interests of legal subjects, which require a higher level of legal protection and protection, becomes especially relevant. The author stated that the relevance of the topic of the scientific work is also determined by the high level of changeability of the legal provision of benefits, the importance of their correlation at the national level with the standards introduced at the international level, including at the level of the European Union.
 Based on the analysis of doctrinal approaches to the understanding of legal privileges, a high level of discussion and ambiguity of the views of scientists was noted. This determines the expediency of developing a single doctrinal approach to their conceptual definition and substantiating the expediency of their terminological consolidation in the provisions of acts of international law and national legislation. As a conclusion, the author draws attention to the cognitive potential of legal benefits as an independent component of the conceptual and categorical apparatus of legal science and draws attention to the fact that legal benefits: firstly, from a cognitive point of view are characterized by general properties, which indicates that they belong to the phenomena of social reality, and special properties of a legal nature, which proves their belonging to the phenomena of legal reality; secondly, as the subject of scientific research is a complex, multifaceted socio-legal phenomenon, which determines the expediency of using a complex methodological basis of scientific knowledge; thirdly, it is an integral component of any modern legal system aimed at ensuring justice, balance of interests in society, harmonious development of all spheres of social life, etc.

From shelter to the streets: the feminine face of homelessness in contemporary democracies

ABSTRACT Homelessness has shattered democracies worldwide. This study uses a doctrinal approach, employing content analysis, especially relational content analysis, to examine the underlying factors and difficulties associated with homelessness among women. The study notably focuses on the issue of police violence directed at this marginalised population and sheds light on the vulnerable position of homeless women, highlighting the crucial responsibility of governments under Parens Patriae to protect their lives and freedoms. The study argues that homelessness is fundamentally inconsistent with the principles of human dignity. The findings highlight the constitutional violations committed against homeless women in India, contravening the principles enshrined in Articles 14, 19, and 21, as well as the directives specified in Articles 39(1), 42, and 47. The findings indicate that the social welfare efforts implemented by the state are in line with the objectives of SDGs. This highlights the importance of adopting more focused approaches to address the issue of homelessness among women. Moreover, the study examines the legal framework of the United Kingdom, taking into account the influence of India’s colonial history, and investigates the current practices of democratic nations and the role of the protagonist played by the Indian Judiciary in addressing homelessness.

The Place of Women in the Armed Forces: Legislation and State Compliance with Gender Equality Policies

The purpose of this comparative study is to analyse the challenges and problems faced by women during military service based on the state of gender equality in different countries. The study analysed international law and international judicial practise, which are the driving forces behind making adjustments and changes to the legislation of different countries. The main research method was to compare the existing doctrinal approaches to the study of gender inequality in the armed forces of different countries, to display quantitative indicators of women’s military service in those countries, as well as to analyse and compare the nature of the challenges faced by women during their military service. The study also conducted a thorough analysis of the works of scholars in this area, which confirmed the existence of this problem of gender inequality in the armed forces. It was concluded that the authorised bodies of states should allocate significant resources and efforts to implement measures to ensure the rights of women in the armed forces.