Doctrinal Legal Analysis Research Articles

Procedural fairness in automated asylum procedures: Fundamental rights for fundamental challenges

In response to the increasing digitalization of asylum procedures, this paper examines the legal challenges surrounding the use of automated tools in refugee status determination (RSD). Focusing on the European Union (EU) context, where interoperable databases and advanced technologies are employed to streamline asylum processes, the paper asks how EU fundamental rights can address the challenges that automation raises. Through a comprehensive analysis of EU law and several real-life cases, the paper focuses on the relationship between procedural fairness and the use of automated tools to provide evidence in RSD. The paper illustrates what standards apply to automated systems based on a legal doctrinal analysis of EU primary and secondary law and emerging case law from national courts and the CJEU. The article contends that the rights to privacy and data protection enhance procedural fairness in asylum procedures and shows how they can be leveraged for increased protection of asylum seekers and refugees. Moreover, the paper also claims that asylum authorities carry a new pivotal responsibility as the medium between the technologies, asylum seekers and their rights.

China’s marine eco-environment law enforcement from the perspective of the responsibility system: Dilemmas and solutions

As the final link in promoting the construction of marine ecological civilization, the marine eco-environment law enforcement is crucial to realize the Chinese-style modernization which concerns the harmonious coexistence of humans and nature. This study examined the current state of the responsibility system of China’s marine eco-environment law enforcement through legal doctrinal analysis. Three deficiencies that are hindering the improvement of the effectiveness and efficiency of China’s marine eco-environment law enforcement were identified. Firstly, at central level, the allocation of law enforcement powers fails to reflect the principle of integrated land-sea management. There is also insufficient coordination between marine environmental law enforcement and marine resources law enforcement. Secondly, at local level, there is a lack of cross-departmental and cross-regional law enforcement collaboration mechanisms. Thirdly, regarding central-local relations, the allocation of law enforcement powers and resources is unreasonable, and there are conflicts in the management modes of law enforcement agencies. To enhance the effectiveness and efficiency of China’s marine eco-environment law enforcement, it is necessary to: (i) coordinate central law enforcement powers among different maritime-related administrations based on the principle of integrated land-sea management, and the principle of environment-resources integration; (ii) establish cross-departmental and cross-regional law enforcement collaboration mechanisms; (iii) and appropriately allocate marine eco-environment law enforcement powers between the central and local maritime-related administrations.

Indigenous peoples in carbon pricing policymaking

The article contributes new thinking on the exclusion and inclusion of Indigenous Peoples in carbon pricing policymaking. Using a Canadian case to draw broader lessons for other countries and make a conceptual contribution, we ask and answer five questions: (1) who is excluded; (2) why does exclusion happen; (3) how does exclusion happen; (4) what does exclusion cause; and (5) how could policymakers enhance inclusion? To inform and answer these questions, we construct a decolonial theoretical framework and use it to guide qualitative analysis and doctrinal legal analysis of original data, including 34 semi-structured interviews and few court decisions, to enhance thinking on exclusion and how to enhance inclusion in carbon pricing policymaking. The thesis is that Indigenous Peoples are externally and internally excluded because of legal and practical problems in policymaking, and this impacts legitimacy, transparency, justice, policy effectiveness and indigenous reconciliation, and should be mitigated by enhancing transparency measures, prioritizing the value of legitimacy over cost efficiency, and, overall, transformationally rethinking policymaking processes. Altogether, our theory-grounded empirical sociolegal study demonstrates key concepts for thinking about Indigenous inclusion and exclusion, extending the extant public participation literature as applicable to climate, natural resource, and environmental law and governance, and other relevant legal and social science fields.

Beyond Cognition: Are Party-Appointed Arbitrators Truly Impartial?

The present paper examines the principle of impartiality and its significance in the context of party-appointed arbitrators in international investment and commercial arbitration. It reflects on how cognitive biases influence decision-making in arbitral disputes and how such biases can be mitigated to enhance the credibility and fairness of international dispute resolution procedures. Arbitration is a common mechanism for resolving disputes in international investment law, with parties often appointing tribunal members. However, the impartiality of these arbitrators is frequently questioned. Cognitive biases, such as confirmation bias and anchoring bias, can significantly impact the fairness of arbitration by affecting how evidence is perceived and evaluated. This study explores the relationship between cognitive biases and arbitrator impartiality, considering the role that such biases may play in the outcome of an arbitration process. Integrating doctrinal legal analysis with empirical insights from psychology, the paper aims to provide a comprehensive understanding of impartiality challenges faced by party-appointed arbitrators. It analyzes institutional measures like the duty of disclosure and ethical guidelines, alongside the theoretical framework of the ‘devil’s advocate’ approach, to propose effective strategies for mitigating biases. By enhancing understanding of these issues, the paper aims to contribute to the ongoing debate on the fairness of arbitration in international investment and commercial law.

Beyond Hopes, Beyond Cures: A Proposed Malaysian Regulatory Framework for Somatic Gene Therapy in Human

After serious side effects 20 years ago, somatic gene therapy (SGT) is gaining traction again. The pipeline for somatic gene therapy has expanded rapidly. Although SGT has shown remarkable efficacy for cancer and genetic diseases, it also carries risks, ethical challenges, and legal concerns. This study intends to (i) present Malaysia's experience with SGT clinical trials (ii) evaluate the adequacy of existing regulatory frameworks and (iii) propose future legislation. The study employs a qualitative approach by utilizing both primary and secondary data. Statutory provisions are referred to for doctrinal legal analysis. Primary data was collected through a purposeful sampling of experts. Interviews were conducted with government representatives, medical experts with experience in SGT, and Shariah experts. The findings indicate that in establishing Malaysian law on SGT, customary beliefs, especially Shariah perspective, must be taken into account, as well as adopting best practices from other developed countries and improving Malaysia's existing law.

Balancing Innovation and Regulation in the Age of Generative Artificial Intelligence

Abstract The emergence of generative artificial intelligence (AI), exemplified by models like ChatGPT, presents both opportunities and challenges. As these technologies become increasingly integrated into various aspects of society, the need for a harmonized legal framework to address the associated risks becomes crucial. This article presents a comprehensive analysis of the disruptive impact of generative AI, the legal risks of AI-generated content, and the governance strategies needed to strike a balance between innovation and regulation. Employing a three-pronged methodology—literature review, doctrinal legal analysis, and case study integration—the study examines the current legal landscape; synthesizes scholarly works on the technological, ethical, and socioeconomic implications of generative AI; and illustrates practical challenges through real-world case studies. The article assesses the strengths and limitations of US governance strategies for AI and proposes a harmonized legal framework emphasizing international collaboration, proactive legislation, and the establishment of a dedicated regulatory body. By engaging diverse stakeholders and identifying critical gaps in current research, the study contributes to the development of a legal framework that upholds ethical principles, protects individual rights, and fosters responsible innovation in the age of generative AI.

Redefining International Law Paradigms: Charting Cybersecurity, Trade, and Investment Trajectories within Global Legal Boundaries

Abstract This paper critically examines the evolving intersections of cybersecurity, trade, and investment within the framework of international law, thereby seeking to redefine its normative paradigms. The article adopts a multidisciplinary approach, integrating legal theory, international relations, and cyber law to analyze how digital security issues intersect with global economic transactions. Utilizing doctrinal legal analysis, the article delves into international treaties, case law, and policy documents, while a comparative method highlights variances and similarities across jurisdictions. The article identifies significant gaps in existing international legal frameworks that are ill-equipped to address the complexities and nuances of the digital age. It advocates for comprehensive legal reforms, encompassing cyber warfare, digital trade, and cross-border investments. The objective is to align international law with the digital era’s realities, effectively balancing national security, economic growth, and individual rights in a globally interconnected environment. This article not only uncovers critical shortcomings in current legal structures but also proposes forward-looking legal strategies, essential for tackling emerging challenges at the cybersecurity, trade, and investment nexus. These strategies chart a course towards a more resilient and adaptive international legal system, equipped to address the multifaceted issues arising from the digital era’s convergence.

ON CIVIL LAW ASPECTS OF RECOVERY OF LOSSES FOR NON-PAYMENT OF TAXES BY AN ORGANIZATION FROM ITS CONTROLLING PERSON

The purpose of the study is to the identification the essence of the "civilistic" approach to the compensation of pecuniary damage for non-payment of taxes through the fault of persons controlling the organization, as well as related legal consequences of the latter. Based on the analysis of legal doctrine, law enforcement practice on this issue, as well as the positions of the Constitutional Court of Russia, the conclusion is made about the subsidiary nature of the state's claims to the persons controlling the organization, through whose fault the budget was deprived of tax revenues. As a result of the research the substantive legal features of their consideration are determined. The aforementioned features includes: the possibility of compensation for damage at the expense of the controlling entity only if it has an independent property mass in relation to the main debtor; inadmissibility of deprivation of the subsidiary debtor of the right of recourse against the main debtor; the need for an economic link between the offence committed by the subsidiary debtor and the non-performance of the debtor's tax obligations; the need for the existence of an economic link between the offence committed by the subsidiary debtor and the non-performance of the debtor's tax obligations.

“Director General Review” as a Viable Mechanism to Safeguard Malaysia’s Revenue Through Tax Justice

The Revised Kyoto Convention (RKC) serves as a guide for Customs procedures in the modern era, and Malaysia has signed on as a participating country. One crucial element of the RKC, outlined in Chapter 10 of the text of the convention, is the requirement for national legislation to include a right of appeal in Customs matters. Subsection 143(1) of the Customs Act 1967 empowers the Director General (DG) of Customs to review his own previous decisions, and the Royal Customs Malaysian Department (RMCD) has devised a systematic process referred to in this research as the "DG review." This provision was enacted to comply with the RKC's standards. Subsection 143(1) was amended in 2020 to allow aggrieved parties to submit their applications for “DG review” within 30 days from any DG decisions in the indirect taxes. Despite the amendment, no prior research has been conducted on its effectiveness. This study aims to evaluate the viability of the DG review mechanism in promoting fair and efficient tax implementation. The research employs both doctrinal legal analysis and qualitative methods to scrutinize the laws and regulations governing the right of appeal for indirect tax in Malaysia, as well as the fairness of the DG review process for taxpayers. The outcome of this study is pivotal in proposing legal solutions and validating the amended mechanism outlined in subsection 143(1) of the Customs Act 1967.

Social conditionality: An adequate legal response to challenges faced by agricultural workers in the EU, or an example of redwashing within the Common Agricultural Policy?

This article provides a doctrinal legal analysis of the ‘social conditionality’ mechanism introduced in the latest reform of the EU's Common Agricultural Policy (CAP). Building on that analysis, the article proceeds to assess the likelihood of social conditionality improving the conditions of agricultural workers in the EU, thereby achieving the objectives set out for it by the EU legislator. The article concludes that due to numerous issues regarding its legal architecture, including limitations in its scope, the absence of novel requirements imposed on farmers, and the rather limited dissuasive effect of its enforcement mechanism, social conditionality is unlikely to improve the conditions for agricultural workers in the EU. Therefore, it is ultimately proposed that social conditionality might more appropriately be considered as an example of ‘redwashing’ within the CAP rather than an adequate legal response to the challenges faced by agricultural workers in the EU.

Legal Procedure for Investigation under the Criminal Code of Uzbekistan

This article examines the legal framework governing criminal investigations and proceedings in the Republic of Uzbekistan. Using doctrinal legal analysis, it outlines the code provisions related to inquiry, preliminary investigation, evidence gathering, rights of suspects and accused, procurator oversight, and court procedures. The objective is to elucidate the systematic approach underlying criminal justice administration in Uzbekistan, underscoring adherence to due process. The aspects include constraints on interrogation duration, attestation requirements for investigative actions, prosecutorial supervision safeguards, and judicial review principles. The study finds a robust legal structure emphasizing procedural fairness, transparency and accountability. It highlight the center on reducing bureaucratic delays in approvals, enhancing protections for juveniles and suspects, and limiting grounds for suspending inquiries. Streamlining procedures within human rights frameworks will strengthen public trust in the criminal justice system. Reforms must balance efficiency aims with upholding rule of law ideals.

Analysis of Doctrine of Insanity Defense in English Criminal Law

A person suffering from legal insanity cannot be held responsible for his criminal act. English criminal law recognizes the doctrine of the insanity defense against the criminal responsibility of an accused. The objective of this paper is to study the English law on insanity defense using the doctrinal legal analysis approach. The findings show that English law deals with legal insanity differently than medical insanity. However, the opinion of the medical professionals is mandatory to determine the legal insanity of a person. Furthermore, the standard of evidence to determine legal insanity is the balance of probabilities. English law treats the insanity defense as distinct from the defense of automatism and diminished capacity and the incompetency to stand trial is also dealt with differently than the defense of insanity in English law. English law on the defense of insanity must be interpreted comprehensively by adopting multidisciplinary approaches.

Constitutional Rights and Obligations of Citizens Towards the Environment Under the Conditions of Sustainable Development

Abstract The aim of this article is to determine the status of citizen’s rights to ‘a clean environment’ and their obligations towards the environment under sustainable development conditions, considering international and domestic regulations. It analyses three interlinked aspects: human rights to a clean environment, obligations of citizens and public authorities towards the environment, and environmental protection in accordance with the principle of sustainable development. Human rights to ‘a clean environment’ are enshrined in the Constitution, drawing on the Universal Declaration of Human Rights and the Rio de Janeiro ‘Environment and Development’ Declaration. These rights are implemented by public authorities through ensuring ecological safety and the use and protection of environmental resources, adhering to the sustainable development principle. In addition every citizen has obligations towards the environment, because he should take care of environmental resources and use them in accordance with the principles of environmental protection law. The analysis of legal doctrine and legislation highlights a clear relationship between the necessity for public authorities to ensure constitutional rights to a ‘clean environment’ and their obligations towards the environment through the protection of environmental resources in line with the sustainable development principle. This entails balancing the human right to a ‘clean environment’ against the environmental right to the continuity and sustainability of resources (natural balance), while also ensuring economic growth. An example of these principles in action is Agenda 2030, currently being implemented in Poland and other EU Member States.

Соотношение рамочного и гражданского процессуального правового регулирования

The study is aimed at studying the relationship between civil procedural and framework legal regulation based on an analysis of legal doctrine and current legislation. The dynamics of legal regulation are based on the modernization of methods and legal means in order to find an effective formula for legal regulation in information society. It has been determined that the main form of correlation between civil procedural and framework legal regulation is relatively specific legal norms.

Let Me Move: A Legal Analysis of Residence Restrictions on Asylum-Seekers in Ceuta, Melilla and the Canary Islands

For over a decade, Spanish police have prevented asylum-seekers in Ceuta and Melilla—two Spanish exclaves in Northern Africa—from moving to mainland Spain. Since 2020, similar measures have been taken in the Canary Islands. However, this practice has not taken place in a vacuum. This article shows that the Spanish authorities have long drafted and interpreted Spanish law in such a way as to create a veil of legality over these residence restrictions. Moreover, they have ignored attempts by the courts to uphold the freedom of asylum-seekers to choose their place of residence within the borders of the State. The government and the police have thus exercised a kind of “diluted” legal social control, in which legal certainty and human rights safeguards are out of the picture. This article analyzes the issue from different perspectives, using social control theories, classical legal doctrinal analysis, and comparisons with criminal law.

Иностранное судебное решение и его влияние на действительность арбитражного соглашения (анализ российского и иностранного опыта)

Introduction: the study examines the impact of a foreign judgment on the validity of an arbitration agreement. As part of the study, it was substantiated that a foreign court decision has the property of prejudice in cases where it complies with the conditions of recognition established by Russian legislation. The purpose of the paper is to study the impact of a foreign court decision on the validity of an arbitration agreement. Methods: special scientific methods including historical-legal, critical-legal, legal-dogmatic methods and the method of interpretation of legal norms; empirical methods of comparison, interpretation and description, methods of formal logic. Results: the analysis of legal doctrine, legislation, and court practice has shown that the conclusions of a foreign court on the invalidity of an arbitration agreement due to violation of the procedural legislation of the state do not have prejudicial force for international commercial arbitration (if the place of arbitration is the Russian Federation) and for Russian courts. Conclusions: the conclusions of a foreign court concerning the validity of an arbitration agreement are binding on Russian state courts only if the foreign court has established factual circumstances indicating the presence of a substantive defect in the arbitration agreement (for example, lack of legal capacity, conclusion under coercion, etc.). Moreover, due to the autonomous nature (‘severability’) of the arbitration agreement, the relevant party must prove that the substantive defect in question is covered by the arbitration agreement.

Терминология института освобождения от ответственности в гражданском праве

The study of the Institute of exemption from liability for breach of obligations is a very relevant topic, due to various kinds of emergencies occurring in the world that affect the fulfillment of obligations by the parties. The article examines the normative concepts that serve as the name of cases when the responsibility of participants in business relations for violation of obligations does not occur. These are the concepts of "exemption from liability", "exclusion of liability" and "elimination of liability". The existence of such different terms in legislation and scientific doctrine, in relation to exemption from civil liability, causes discussion, does not contribute to a uniform understanding and practical application of civil law norms. With the help of general scientific and private scientific methods of cognition, in particular, formal legal, structural and functional, the author analyzes and compares the concepts of "exemption from liability", "exclusion of liability" and "elimination of liability" in order to establish the grounds for the application of these concepts. The article concludes that the criterion for distinguishing concepts from each other and from related legal categories is the presence or absence of elements (conditions) of the offense. The analysis of legal doctrine, legislation and judicial practice, in relation to the concepts of exemption from civil liability, showed that each of the studied terms carries its own content load. Applying different concepts of the institution of exemption from liability, it is necessary to take into account that the term can be either the result of conciliatory actions of the parties to the contract, or follow from the requirements of the norms of the Civil Code of the Russian Federation. In the field of business relations, exemption from liability comes depending on the evidence or lack of evidence of certain circumstances. In the presence of certain conditions, exemption from liability is an exceptional measure aimed at ensuring the stability of economic activity. The paper concludes that it is advisable to introduce a legal definition of the concept of "exemption from liability" into civil legislation, in view of the existing problem of distinguishing between exemption and exclusion of liability. The author defines the concept of "exemption from civil liability". In order to move to a uniform terminological unity, in the norms on exemption for violation of contractual obligations, it is suggested that the concept of "elimination of liability" should be excluded from the normative text, as duplicating the legal meaning of the concept of "exemption from liability".

Dissenting Opinion of Corruption Court Judges as a Form of Freedom and Legal Reform in Indonesia

The existence of dissenting opinions is a step in organizing law enforcement. This is also an important issue in organizing judicial power in relation to the 1945 Constitution and Law No. 48/2009 on Judicial Power. In Indonesia itself, judges are allowed to give dissenting opinions, although there has never been a clear definition of dissenting opinions. In Anglo-Saxon law, dissenting opinions have become commonplace, and these dissenting opinions often form new laws. This is in line with the term "judge made law". Therefore, the existence of dissenting opinion is very important, because it can continue to update the existing law.This research includes normative or doctrinal legal analysis because it wants an accurate and clear picture of the judge's dissenting opinion on the verdict of a corruption case. To explain and find answers to problems, theories are used as the basis for analysis, namely Legal Certainty Theory, Judicial Power Theory, Evidence Theory, Legal Construction Theory, and Sentencing Theory.The impact of the application of dissenting opinions by judges is an instrument towards a better quality of law enforcement, not just a matter of majority and minority in the consideration of judges but a consideration of whether or not a criminal offense has been proven. Therefore, further regulation of the conception of dissenting opinions in Indonesia is important. Legal reform of the Criminal Procedure Code in Indonesia and dissenting opinions must be regulated in the Criminal Procedure Code, precisely in the decree article 197, so that it becomes part of the consideration of a decision. The mechanism for entering dissenting opinions needs to be further regulated so that it becomes a form of transparency to the public.

The Impact of Vulnerability on State Obligations in Criminal Proceedings on Domestic Violence: Interpreting the Istanbul Convention and the European Convention on Human Rights

The article discusses how the categorical designation of victims of domestic violence as vulnerable by the European Court of Human Rights compares to the approach taken in the Istanbul Convention. The doctrinal legal analysis is based on the interpretation of the European Convention on Human Rights and the Istanbul Convention by their monitoring bodies, with a focus on criminal proceedings in domestic violence cases. The article concludes that the protection enjoyed under the Istanbul Convention appears relatively similar to that required by the case law of the European Court of Human Rights, regardless of whether the victims are formally designated by the Istanbul Convention as being in a vulnerable position or not. However, already this limited study displays divergence on a central protection issue, meaning more open reflection by the monitoring bodies would be welcome as regards the grounds for and legal consequences of regarding an individual as vulnerable.

EU Sanctions Policy Vis-à-Vis Russia

This research piece investigates the role of norms in European Union (EU) sanctions policy towards Russia in the context of the Russia Ukraine War. It aims to answer the research question of the extent to which the EU’s foreign policy in this particular case can be interpreted as having normative power. As an analytical lens, the Normative Power Europe (NPE) framework is used. In order to tackle the question, this study deploys an interdisciplinary approach drawing from EU law and social sciences. It combines EU legislation and case law of the European Court of Justice on the one hand, with a qualitative content analysis of official EU press releases on the other. The first part of the analysis focuses on the doctrinal legal analysis of the relevant EU law in order to account for the normative-legal basis and legitimacy of EU autonomous sanctions. The second part investigates if the EU in this particular case is guided by international norms (milieu goals) or economic interests (possession goals) and which foreign policy instruments it uses to pursue its objectives. The study finds that the EU is committed to its normative identity.