General Clauses Research Articles

Germany’s Supply Chain Due Diligence Act: Is It Compatible with WTO Obligations?

Regulations that aim at the observance of certain human rights and environmental standards by companies along the value chain have gained momentum. A recent example is the German Supply Chain Due Diligence Act that obliges German companies to adhere to due diligence obligations vis-à-vis human rights and, to a lesser extent, the environment when making use of global supply chains. Germany, as other WTO members, must at the same time ensure compliance with WTO law when adopting such measures. This article will argue that due diligence laws may have a bearing on WTO obligations, but can be justified according to the general exceptions clause of Art. XX GATT. Ultimately, the article argues that such measures may be necessary if international economic law is to accommodate the common goal of sustainable development.

A general clause of good conduct as one of the conditions for practising the profession of an attorney-at-law

A general clause of good conduct as one of the conditions for practising the profession of an attorney-at-law

Responsabilidade civil: a equidade como parâmetro para fixação da indenização no caso de excessiva desproporção entre a gravidade da culpa e o dano

Civil liability is among the most instigating, complex and relevant themes of Modern Law, including the Brazilian one. The research aims at analyzing the reflexes of equity foreseen in the sole paragraph of article 944 of the Civil Code of 2002 in the scope of civil liability. The 2002 Code,compared to the 1916 Civil Code, is considered an open normative document, full of general clauses and undetermined legal concepts. Equity, among other meanings, as a corrective to the law, can be seen as the justice of the concrete case. Provided for in the 2002 Civil Code, equity confers, in line with the principle of operability, an expansion of the interpretive power of the judge. This reveals that its systematic study is important, especially focusing on its influence on the principle of integral reparation of damage inherent to civil liability. The method used is the hypothetical-deductive one, based on legislation, doctrine and jurisprudence. It concludes that, in the area of civil liability, the equity provided for in the sole paragraph of Article 944 of the Civil Code of 2002 constitutes an effective parameter for establishing compensation in the event of excessive disproportion between the seriousness of the fault and the damage, whether in relation to subjective or objective liability. Keywords: Equity. Indemnity. Judge’s interpretive power. Principle of operability. Civil liability.

Korruption bei der parteiinternen Kandidatenaufstellung für Parlamentswahlen – ein Fall für das Strafrecht?

Taking a proposal of a parliamentary group in the Landtag of the Saarland as a starting point, the paper discusses pros and cons as well as legal options to criminalize bribery in the context of party meetings that select candidates for general elections . The author argues that it is advisable to extend the criminal law to that effect . In this regard, well-defined new provisions in the German Political Parties Act are preferable to a general clause in the Crim- inal Code .

Primena fiskalnih pravila Evropske unije u uslovima krize izazvane pandemijom

The paper examines the application of the European Union fiscal rules in the conditions of disturbances caused by the COVID-19 pandemic. Faced with a severe economic crisis, the European Union (EU) institutions for the first time activated a "general escape clause", which allows for temporary deviation from the budgetary requirements set by the Stability and Growth Pact in March 2020. The clause was introduced as part of the 2011 fiscal rules reform (six-pack) and it allows member states to temporarily derogate from fiscal constraints due to severe economic disruptions. By activating the clause, the member states have been left with sufficient room for maneuver to take expansive fiscal policy measures, which mitigate the consequences of the crisis but also negatively affect the budget balance. Although conceived as a temporary deviation of fiscal indicators from the set values, in practice there was an extensive application of the general clause, which de facto led to the suspension of EU fiscal rules. This was also influenced by the decision of the European Commission and the Council of the EU to withdraw from initiating proceedings against member states with excessive budget deficits, due to the seriousness of the crisis and uncertainty regarding the recovery. The experience with the application of fiscal rules during the Coronavirus pandemic crisis imposes the need to redefine the institutional framework of fiscal governance in the EU, which will ensure a stronger link between numerical constraints and fiscal policy objectives but also provide enough space and resources for intervention during severe economic downturn.

What Has Changed in European Concept of Undertaking? From „FENIN“ to „EASY PAY“

Competition is the main self-regulatory principle of the market in general, internal market included. Competition law has the form of general clauses making its application dependant on the correct interpretation of general concepts. Core competition rules of the Functional Treaty („TFEU“) are addressed to undertakings; undertaking thus belongs to key concepts of competition law. Interpretation of this concept is decisive for the scope of competition rules application. So, the article explores different approaches of the case law to the interpretation of the concept of undertaking based on economic activity. It compares the FENIN doctrine and the new functional test of separability developed in EASY PAY. It drives attention to the impact of this new test for the evaluation of procurement activities under competition scrutiny.

Wykładnia pojęcia „dobrej wiary” w orzecznictwie w kontekście dokonywanych w okresie PRL naruszeń prawa własności

The article aims to asses the jurisprudence of the first decades of the 21st century regarding the good faith of stateowned enterprises that began, without a legal title, to use private land in the communist period, placing on them the infrastructure used to transmit electric energy. Courts interpreting general clauses referring to concepts and systems of values lying outside the legal system gain the ability to influence the decision of the case based on their own moral judgments. Therefore, the case where Polish courts operating in a state that respects the principle of equal property protection regardless if the entitled entity had the opportunity to assess the conduct of entities representing the state operating on the basis of a completely different system of values, should be considered particularly interesting. It is typical for totalitarian and authoritarian regimes to formally grant broad protection to individual rights and, at the same time ignore their existence in the activities of the state. It can be seen in the practice of carrying out some infrastructure investments in the communist period. Electricity networks were often built on private land. At that time, there were regulations allowing to obtain a legal title to use the land, both in private law (contract) and of an administrative (expropriation) nature. The state and state-owned enterprises, however, mostly did not use them, focusing on planning investments to obtain permits related to technical issues. The reasons for this behavior can be seen primarily in the basic assumptions of the socialist system. The described practice testified to the real attitude of the state to private property as a type of property that was ultimately to be ousted in the socialist system. The role of economic plans in the Polish People’s Republic was also significant. State bodies and state-owned enterprises primarily aimed at executing plans, regardless of whether or not they violated the individual’s interests in this way. After 1989, the legal status of many power grids, overhead lines, and other devices was therefore not regulated. State-owned enterprises, and the companies resulting from their transformation, used many properties without a legal title. Changes in the legal awareness of society and the grow-ing understanding of economic mechanisms based on the principles of responsibility for one’s own actions and protection of subjective rights, led to many court disputes between owners and entrepreneurs. The most common claims addressed to transmission companies were remunerations for the use of land without legal title and actio negatoria. The case law reacted to the increase in the number of disputes by creating a concept of usucaption of land easement for the benefit of the transmission entrepreneur. Its legitimacy from the beginning raised fundamental doubts in the legal doctrine, but it gained the full support of the courts. Many statements of the Supreme Court assessed the correctness of the state-owned enterprises’ conduct. The relatively numerous statements approving the omission of obtaining a legal title to seize someone else’s real estate in the investment preparation process ought to be considered inter-esting and surprising. They significantly influenced the practice of common courts, causing many claims of property owners against entrepreneurs to be dismissed. Moreover, by expressly praising unlawful interference with the right to property, carried out during the Polish Peopleʼs Republic, they probably also deepened the sense of harm and injustice — caused mainly by a surprising in-terpretation that allowed for the acquisition by prescription of a right unknown to the Act — and above all the belief that courts treated trade participants unequally and that courts granted significant privileging to the state and entities representing its interests.

Critical Review of the ATAD Implementation: Implementation of the EU ATAD in Spain: Outstanding Issues of a Partial Transposion

The purpose of this work is to critically analyse the transposition of the Anti-tax Avoidance Directive (ATAD) (1 and 2) into the Spanish tax system. To do so, a distinction is made between the rules that are transposed (exit taxation, controlled foreign companies (CFCs) and hybrid mismatches) and those that are not (limitation on interest deductions and general anti-abuse clause). This analysis will highlight the main differences between the directive and Spanish law and examine whether such discrepancies may be the source of problems of application and even uncertainties about the alignment of Spanish regulations to the directive itself or to EU primary law. Tax avoidance, corporate taxation, general anti-abuse clause, limitation on interest deductions, exit taxation, controlled foreign companies, hybrid mismatches, fundamental freedoms, proportionality, legal certainty.

The general noun-modifying clause construction beyond Eurasia

Abstract I aim to provide a typological investigation of the General Noun-modifying Clause Construction (NMCC) in languages other than those of Eurasia. I show that the five properties proposed by Matsumoto et al. as potentially correlating with the General NMCC are rather areal features which are falsified by the data of languages from Africa and Europe. The semantic interpretability condition and the syntactic licensing condition of the General Noun-modifying Clause Construction need reconsidering. Semantically, I argue that the interpretability of the General NMCC depends both on the semantics of the head noun and that of the modifying clause because they show close interaction with each other. Syntactically, I propose three general syntactic properties of the languages with the General NMCC, i.e. (1) no relative pronouns or relative pronouns in competition with a general clause marker, (2) complex subordinate locutions composed of the general clause marker(s) (and a head noun), and (3) unified verb forms in subordination.

A SELECTION OF CONSTITUTIONAL ASPECTS THAT IMPACT ON THE MENTALLY DISORDERED PATIENT IN SOUTH AFRICA

This article examines a selection of constitutional aspects that impact on the mentally disordered patient in South Africa. There are specific fundamental human rights protected in the Bill of Rights that are applicable to the psychiatric and psychology professions and the mentally disordered patient. The first is section 36 of the Constitution – the general limitation clause. Further rights include the right to dignified and humane treatment, freedom from discrimination in terms of access to all forms of treatment, the right to privacy and confidentiality, the right to protection from physical or psychological abuse and the right to adequate information about their clinical status. These rights should ideally include efforts to promote the greatest degree of self-determination and personal responsibility of patients. Since 1994 many farreaching improvements have been made to the South African health system. The legal and policy framework described in this article is still relatively new and is a major achievement. However, much remains to be done to implement policies and to ensure that the vision of the protection of the mentally disordered patient becomes a reality for people regardless of factors like mental disorder. Because this is an article of limited scope, focus is placed on a discussion of sections 10, 12(2)(b) and 14 of the Constitution.

Consumer Protection: The Interaction Between Written and Unwritten Law

The scope of consumer protection according to both written and unwritten law is assessed through an analysis of court decisions and decisions of the Consumer Complaints Board in Danish law with references to other Scandinavian law and to EU case law. The article analyses consumer protection in Scandinavian contract law according to general principles of interpretation and statutory law in the form of national legislation implementing Article 5 of Directive 93/13/EEC on unfair terms in consumer contracts. The so-called (larger) general clause of invalidity in the form of section 36 of the relevant national Contracts Acts is included as it greatly influences interpretation in Scandinavian contract law. The analysis involves a discussion of interpretation as a legal source in Scandinavian contract law, and a presentation of the Scandinavian consumer complaints board system with an emphasis on the Danish system. It is argued that the (traditional) general principles of interpretation in contract law play an important role as a supplement to written law in the aim of consumer protection, and that both courts and the Consumer Complaints Boards seem to operate with protection of consumers as a relevant underlying legal basis when interpreting consumer contracts. Both general rules of interpretation and the underlying legal basis (in the form of i.a. non-mandatory rules and customs) thereby seem to enhance consumer protection in Scandinavian contract law.

The European Union fiscal policy framework and fiscal sustainability: challenges for the post-crisis environment

The fiscal policy framework in the European Union was originally agreed upon in the Maastricht Treaty 30 years ago. In the following years it has been supplemented (Stability and Growth Pact) and modified, influenced by the experience of its application practice and external shocks, such as the financial crisis. However, the essence of this framework remained the same - member states are obliged to conduct a disciplined fiscal policy, which, in a nutshell, is assessed by comparing the ratio of budget deficit and public debt to GDP in a given country to the reference values. Even before the outbreak of the Covid-19 pandemic, the need to change the mechanisms for disciplining fiscal policy was widely recognized. High and persistent levels of public debt, pro-cyclicality of fiscal policy, shortage of public investment and the complexity of fiscal rules and their weak enforceability are indicated as unfavorable features of public finance. In 2019 the COVID-19 pandemic came as the biggest shock to the world community since World War II. In the context of the provisions on fiscal discipline, in May 2020 the Commission and the Council activated the general escape clause of Stability and Growth Pact, for the first time ever. This has allowed member states to take the necessary fiscal measures to deal with the crisis. On 19 October 2021, the European Commission adopted a Communication relaunching the public consultation, put on hold in March 2020, on the EU?s economic governance framework. The new governance framework should be tailored to the challenges the EU is facing, including the challenge of achieving a fiscal stance that is appropriate for the euro area as a whole. There is a fairly widespread belief in the need to move away from rigid reference values, which should be replaced by solutions that ensure the sustainability of public debt in the differing circumstances of member states. The proposed options for the revision of the EU fiscal framework, although justified in theory, have a fundamental flaw - they strengthen the position of supranational institutions and, moreover, open the door to discretion and potentially unequal treatment of member states. These proposals can be seen in a broader context - the federalization of the EU, which would limit the sovereignty of nation states.

The Randstad Case: Melki Reloaded? The Fundamental Right to Effective Judicial Protection as Battleground for Judicial Supremacy in European Law

This paper will examine the recent preliminary reference to the European Court of Justice issued by the Italian Court of Cassation in the Randstad case, aimed at rearranging the internal constitutional separation between ordinary and administrative courts (article 111(8) of the Constitution). I will first provide some context on both the relations between Italian and EU courts (2.1) and on the confrontation between the Court of Cassation and the Constitutional Court in interpreting article 111 (2.2). I will then specifically examine the referring order to the Court of Justice of the EU (3), focusing on the role of general clauses of EU law as articles 4(3) and 19 TEU and 47 of the Charter in it. Finally, I will consider the instrumental use of EU law made by the Cassation to overcome an unpleasant constitutional arrangement. This aligns Randstad with previous cases such as Melki or A v. B and may foster constitutional conflict in the future.

Research on the dilemma and improvement of legal regulation for unfair competition related to corporate data in China

Corporate data disputes have been rising rapidly in recent years in China. Courts typically apply the trade secret clause, the Internet clause, and the general clause under the Anti-Unfair Competition Law of PRC to the disputes. However, there are some limitations and problems, including the limited scope of the trade secret clause, the difficulty in interpretation of the Internet clause, and short of sufficient demonstration of the general clause, all leading to the lack of clear rules and guidelines for solving corporate data competition issue. The property nature of corporate data and the business operators’ factual control of the data necessarily require standard legal protection. Corporate data is not the property right, but the property interest protected under the Anti-Unfair Competition Law. For further legal positioning of the corporate data, the paper refers to the trade secret clause’s legislative principles. The paper also learns from the United States and Japan that both information misappropriation rule and newly established ‘shared data with limited access’ provision protect corporate data under their anti-unfair competition law. The paper concludes by providing judicial and legislative suggestions to pave the way for corporate data protection in China. At the judicial level, Chinese courts should clarify the specific application conditions of the general clause. At the legislative level, enacting new legislation ‘data clause’ into the Anti-Unfair Competition Law is necessary to regulate unfair competition behaviors related to corporate data.

Globalization and the Growth of Islamic Banking: The Authorization Process in Italy

This paper endeavours to ascertain how Islamic banking may operate within the Italian legal system, given that neither the Rome I regulation, and the incorporation approach cannot be applied. There are three main research questions: i) which is the mainstream Western approach to Islamic banking?; ii) if Sharia rules are considered as a system of social rules and Islamic banking is compared to ethical banking or socially responsible banking, to which extent the Italian banking law is applicable to?; iii) can we suggest building up Sharia rules as a system of normative prescriptions? Globalization, Islamic banking, Sharia, Italian banking law, money, potential capital, usus, legal system, general clauses, lex mercatoria

Complexity or crisis of the sources of law system in Colombia: issues and challenges according to substantive law and procedural law in case law

The legal system in Colombia and its issue to be enforceable for any person, it may be known from a context of crisis or complexity, all about the various typologies of sources that mainly work according to case law, where they are constantly in tension, in addition to their concretion of that interaction, among others, the right to equal protection and the principles of legal certainty and predictability of law, all of them are the basis for any well-organized society that can be declared constitutionally as a rule of law. Therefore, this research aims to the characterization and systematization of law from case law that is created from sub-rules that define substantive and procedural contents for any issue according to the case study, all of those situations have shown the current crisis status and the complexity in the legal system and their effect to produce the final aim of this research composed by three parts (part I, part II and part III), all according to the term that we have named general clause of the sources of law in Colombia.

Liability for Withholding Assistance: General Clause or Closed List? A Review of Competing Models in Arab Legislations

This study reviews two main approaches for dealing with omission of assistance in the criminal laws of Arab jurisdictions. The first approach adopts a general clause on the crime of withholding assistance. This approach, following the model of the French Code pénal, prioritises the right to life and bodily integrity over individual freedom, and has been adopted in Algeria, the UAE, Qatar, Lebanon, Bahrain, Morocco, and Sudan. The second approach restricts criminal omission of assistance to a closed list of cases, in which it mandates a duty to intervene. The Palestinian Criminal Code follows this alternative model, with origins in English criminal law, prioritising individual freedom. The study presents the viability of a general omission clause in criminal law. It contrasts this with the absence of a comparable clause in civil liability, where Arab jurisprudence has instead codified a set of requirements for simple omission to result in civil liability.

General Clauses that Define the Scope of Contractual Freedom in Concluded Settlements in Disputes Between the Employee and the Employer

Abstract This paper aims to present the issue of general clauses that define the scope of contractual freedom in settlements which have been concluded in disputes between the employee and the employer. The aspect of mutual concessions is also discussed. The violation of the problem of justified interest is considered. The paper shows that general clauses are not mutually exclusive, but usually overlap in a settlement. Therefore, a given settlement may violate various general clauses. The vagueness of their conceptual scopes sometimes generates significant practical problems worth to be observed.

The Idea of the “General Clause” in American Labor Law

Abstract European legal systems have long encompassed the concept of the “general clause”, particularly in contract and labor law. The general clause includes unwritten legal norms such as good faith and public morality, and these principles are duly incorporated in the process of construing civil and labor contracts. While the general clause itself is formally absent in common law systems, its principles have found their way into modern British and American law. Two primary examples include the doctrines of good faith and unconscionability. In a broader sense, the idea of introducing rather indeterminate legal norms to be construed and interpreted by judges appears to be well-suited to a common law system. However, as applied to American labor law, the very indeterminacy of these terms has had rather negative effects on the rights of employees and the labor unions that represent them. Specifically, this article examines the good faith requirement in collective bargaining under the National Labor Relations Act (NLRA) and the doctrine of unconscionability in employment arbitration agreements, and concludes that they both should be supplemented by more definite standards in order to effectively protect employees.

Objective Reasons on the Part of the Employer as a Premise for Entering into an “Unlimited” Fixed-Term Employment Contract

Abstract The current wording of Art. 251 § 4 point 4 of the Labor Code, valid since 22.02.2016, is an example of a general clause in labor law. At the same time, the “objective reasons” of the so--called “unlimited” fixed-term contracts entered into belong to the clauses that change their meaning depending on the person who applies an established rule of law. The use of “objective reasons on the part of the employer” on purpose to limit the abuse of “temporary employment” should generally be assessed as incorrect. According to this, the Court of Justice of the European Union may judge this regulation to be illegal according to Clause 5 of Council Directive 99/70 / EC of 28 June 1999, and as incompatible with the purpose and the effectiveness of the framework agreement. Therefore, it is necessary to replace the general clause used by the legislator with further, more specific premises of “objective reasons” for entering into “unlimited” fixed-term employment contracts.