Legal Harmonization Research Articles

Article: The Shortcomings of the EU Public Country-by-Country Reporting Directive

The Directive (EU) 2021/2101 of the European Parliament and of the Council of 24 November 2021 amending Directive 2013/34/ EU as regards the public disclosure of income tax information by certain undertakings and branches, entered into force on 21 December 2021 and must be implemented by all EU Member States until 22 June 2023. It introduces the so-called ‘Public Country- By-Country Reporting’ system in the European Union. With these new transparency rules, the EU seeks to raise greater public scrutiny on the tax planning practices carried out by certain undertakings with activity in the EU. Despite its many achievements, the directive has several shortcomings, namely in what concerns compliance with legal certainty, issues in its implementation and effectiveness for achieving its ratio legis. After mapping these issues, we will put forward proposals that could be adopted by either the European or domestic legislator (the latter, at the implementation stage). Tax Planning, European Union, Tax Transparency, Public Country-By-Country Reporting, Legal Certainty, European legal harmonization

The Legal Regulation of Spam: An International Comparative Study

Spam is the massive sending of messages over the Internet. This activity is carried out mainly for commercial and marketing purposes and causes a series of harm and conflicts of great relevance in the digital world. It is the responsibility of the Law to regulate this activity and protect the rights of the citizens. The objective of this article is to study this phenomenon, starting from its origin, establishing a clear definition, pointing out the most relevant types that have the greatest impact, and addressing the legal problems that derive from it. Through the analysis of documentary sources such as scientific articles, legislation, and practical guides related to spam, the different aspects of the legal systems of the most relevant countries have been reviewed to evaluate a single legal model that would allow facing the problem. Accordingly, a series of proposals and recommendations can be extracted to aim at a legal harmonization that is more adequate and more effective for the regulation of spam, as well as to point out the legal aspects at the international level that need to be improved.

The Environment and Forestry Investigators’ Authority in Money Laundering Offenses

Investigators from the Ministry of Environment and Forestry (Kementerian Lingkungan Hidup dan Kehutanan/ KLHK) are not authorized to investigate the crime of money laundering in the elucidation of Article 74 of Law No. 8 of 2010, although they are authorized to investigate the crime of origin. However, the controversy over the interpretation of Article 74 of the Money Laundering Law was resolved by the Decision of the Constitutional Court Number 15/PUU-XIX/2021, which expands the meaning of 'predicate criminal investigator' in the provisions of Article 74 of the Money Laundering Law to become 'an official or agency authorized by legislation to carry out an investigation.' This paper attempts to describe the dynamics of the authority of KLHK investigators in investigating money laundering offences before and after the pronouncement of the Constitutional Court Decision Number 15/PUU-XIX/2021, including the matter of legal harmonization in the Money Laundering Law relating to the authority to investigate money laundering. This research is normative research with a conceptual approach, a statute approach, and a historical approach. Through this paper, this research can convey that before the Constitutional Court's Decision Number 15/PUU-XIX/2021, KLHK investigators were not authorized to investigate the crime of money laundering, and several legal disharmonies arose regarding the regulation of the authority to investigate money laundering. Meanwhile, after the Decision of the Constitutional Court Number 15/PUU-XIX/2021, all investigators authorized to investigate predicate crimes of money laundering offences, among other things, investigators of the Ministry of Environment and Forestry, are ex officio authorized to investigate money laundering offences. Furthermore, KLHK investigators are authorized to investigate money laundering offences against environmental and forestry crimes whose tempus delicti is before the pronouncement of the Constitutional Court Decision Number 15/PUU-XIX/2021.

The Urgency of Harmonization of Regulations Regarding Groundwater Utilization in Industrial Activities in Batang Regency

This study will analyze the negative impacts of natural resource management in the form of environmental damage and pollution, agrarian conflicts, impoverishment, and neglect of community rights. This is a serious problem that must be resolved. These problems are related to the ineffectiveness of implementing a Regional Regulation (Perda) in the community and the disharmony at the stage of forming a Regional Regulation. This research is a normative juridical law research. Based on the results of the research, it is known that the Law has determined that "every Draft Regional Regulation (Raperda) before being stipulated as a Regional Regulation must first be harmonized at the stage of drafting the Raperda". However, at the practical level, there is often a neglect of the harmonization of the Raperda on executive initiatives, this does not only lead to certain legal consequences (procedural defects) but also raises assumptions related to the existence of overlapping powers. As also happened, there is material in the Batang Regency Regional Regulation number 13 of 2019 concerning the Batang Regency Spatial Plan for 2019-2039, especially in article 128 letter i of the Batang Regency Regional Regulation Number 13 of 2019 regarding the 2019 Batang Regency Spatial Plan. -2039 states that "it is forbidden to use groundwater for industrial activities and industrial support activities and direct industrial activities to utilize surface water, contrary to Central Java Provincial Regulation Number 3 of 2018 so that legal harmonization is necessary.

Dynamics of the regulatory function of Ukrainian lawin the context of European and international legal harmonization

Purpose. The purpose of the work is a comprehensive theoretical and legal analysis of the main problems of the dynamics of the regulatory function of Ukrainian law in the context of European integration and international legal harmonization. Method. The following theoretical methods of scientific knowledge were used in the study: the method of scientific analysis; system-structural; historical and legal; axiological; comparative law; formal-legal and method of generalization. Results. The scientific article highlights the process of transformation of the regulatory function of modern Ukrainian law in the context of its approximation to EU and international law. In the course of the research it was proved that in the issues of the European integration course the leading role belongs to the principles of realization of the regulatory function and regulatory influence. In particular, the implementation of the principle of the primacy of international law is for Ukraine a political and legal guarantee of stable relations with Europe and the world, as well as a legal means of protecting its legitimate interests. On the basis of the main principle of priority of norms of international law, such derivative principles of interaction of legal systems of the Council of Europe and Ukraine as: a) the principle of the rule of law should be developed; b) the principle of interconnectedness and complementarity of the law of the Council of Europe and Ukraine; c) the principles of cooperation, good faith fulfillment of obligations to the Council of Europe and the principle of mutual protection of human rights. Scientific novelty. The study found that the regulatory function of law, despite the narrowing of its scope at the domestic level and within national legal systems, has expanded its scope at the international and European levels, and especially at the level of European Union law. In this case, in the latter case, it interacts most closely with the integrative function. Practical significance. The results of the research can be useful for further general theoretical and applied research of the dynamics of the regulatory function of Ukrainian law in the context of European and international legal harmonization.

Aspek Interoperabilitas Antara Lantamal IX Dengan Kamla Zona Bahari Timur Dalam Penegakan Hukum Di Laut Maluku Ditinjau Dari Perspektif Harmonisasi Hukum

Introductioan: The basic conception of the realization of security in the territorial waters essentially has two dimensions, namely the enforcement of sovereignty and the enforcement of security which are interrelated with each other.Purposes of the Research: This study aims to analyze and discuss the interoperability between Lantamal IX and Kamla of the East Maritime Zone in law enforcement in the Maluku Sea is viewed from the perspective of legal harmonization and the obstacles faced by Lantamal IX and Kamla of the East Maritime Zone in Law Enforcement in the Maluku Sea when interoperability is connected. with efforts to harmonize the law.Methods of the Research: The research was conducted using a normative juridical method with a c statutory approach, conceptual approach and comparative approach a by specifically analyzing the performance of the institution and its authority in the implementation of law enforcement in the Maluku Sea based on the legislation which was then analyzed qualitatively.Results of the Research: The results showed that Lantamal IX and Kamla East Maritime Zone had the same authority in conducting security and safety patrols in the Maluku Sea, thus potentially causing overlapping authorities. Therefore, interoperability is needed between the two institutions in order to create synergy and minimize the occurrence of sectoral egos. So far, the interoperability of Lantamal IX and Kamla of the East Maritime Zone has been established, but it has not run optimally and continuously. Functional analysis of the collaboration between LANTAMAL IX and the East Maritime Zone Kamla shows that there are obstacles related to juridical and material aspects. In the juridical aspect, the East Maritime Zone Kamla does not have the authority to investigate so that the ship being considered must be handed over to the authorized agency. In addition, there has been no renewal of the memorandum of understanding between BAKAMLA and TNI Headquarters. As a result, patrol operations are not supported by Indonesian Navy warships. Meanwhile, materially, the facilities and infrastructure of the East Maritime Zone Kamla are minimal while BAKAMLA has a large enough budget for the implementation of operations. Likewise, the synergy of operations and sharing of data and information has not been maximized. Therefore, interoperability is needed through harmonization of law and synergy.

Harmonising insolvency law in the EU: New thoughts on old ideas in the wake of the COVID‐19 pandemic

While the harmonisation of insolvency law in the European Union (EU) has been a top priority on the European institutions' agenda in the last decade, it is well known that this endeavour has been slow and has often met resistance from the Member States. The COVID‐19 pandemic revealed that top‐down harmonisation of insolvency (i.e., introduced at EU level) has been temporarily halted. The urgency to control or mitigate the economically and financially destructive effects of the pandemic has, nevertheless, forced European governments to adopt domestic strategies and laws in the area of insolvency. Interestingly, however, such measures show that insolvency and restructuring law responses to the COVID‐19 pandemic, albeit largely uncoordinated, reflect a phenomenon of bottom‐up harmonisation (i.e., introduced by Member States) indicating a convergence towards common approaches. This paper interrogates the insolvency law responses to the COVID‐19 pandemic in six European countries (Denmark, France, Germany, Italy, The Netherlands, the United Kingdom). It uncovers the inadequacy of the EU's harmonisation language, and the limits of harmonisation strategies in insolvency and restructuring law. Finally, it promotes the formulation of a wider‐encompassing definition of “legal harmonisation”.

Is Legal Harmonization Always Better? The Counter‐Case of Utility Models

Policy makers and international institutions have long maintained that the global business environment is best supported when countries harmonize by adopting substantially uniform legal structures. This is particularly true in the context of intellectual property rights. When such national systems are similar, we believe that investment is undergirded and market participation is facilitated. However, this assumption may be incorrect in some cases. Marginal disharmony in certain intellectual property rights may provide countries space for experimentation while not impeding effective management of global intellectual property portfolios at the firm level. As evidence, we look to the utility model. This long‐standing form of invention right is conspicuously and surprisingly unstandardized across the world, yet our analysis, using PATSTAT data, reveals that firms are able to negotiate this disharmony effectively. We employ a novel empirical method that tracks U.S.‐priority patents to establish that firms use utility models to optimize their overall appropriability needs by region. Our study finds evidence that a firm may choose standard patent protection in one region and utility model protection in another, even though standard patent protection is available in both settings. We propose that a “zone of appropriability preference” exists when utility models and standard patents overlap, and this zone provides important strategic opportunities to firms with global intellectual property portfolios. Our study thus provides an important counter‐case for harmonization of national intellectual property laws. As a result, we suggest that such efforts be undertaken with more caution; in some cases, harmonization may do more harm than good.

Family Support in the Republic of North Macedonia

Ensuring children's rights and family well-being is a priority of every European country. The Republic of North Macedonia, as a candidate country of the European Union, shares the same family values and family policies as the remaining EU member states. However, despite the past governmental efforts in the area of legal harmonization, several gaps have to be fulfilled and policies to be improved to achieve efficient institutions at the European level. To expand existing policies regarding family support, we consider crucial the analysis of the factual situation in the country, as a basic step towards further research. Therefore, this paper aims to initially provide an analysis of the family support legal framework of the country. Secondly, we intend to map governmental and non-governmental institutions in the Republic of North Macedonia which is responsible to provide family, children, and parents' support. By doing so, we can develop additionally omitted family policies or improve existing ones. Finally, the paper will present a list of competencies of the employees of family support institutions to evaluate more peculiarly their staff's skills standards.

Perbandingan Aturan Perlindungan Privasi Atas Data Pribadi Antara Indonesia Dengan Beberapa Negara

The development of information and communication technology shows a significant increase. In the development of information technology and technology, personal information consisting of names, e-mails and cell phone numbers is very valuable data because there is economic value obtained in the business world, but technology can also be very dangerous if its use is not restricted, such as in the case of not protecting personal data, while privacy of personal data is important because it involves a person's dignity and freedom of expression, but data is not protected because in Indonesia there is no obligation in positive law which specifically regulates and provides sanctions for violations. This study aims to discuss the regulation in the perspective of comparative law in Europe, America, Hongkong, Malaysia, Singapore, South Korea, and Japan. This study uses normative legal research using asttutory approach and comparative approach that examines and analyses legal sources. This study discovers that the regulation of personal data protection in Indonesia has not been fully and thoroughly regulated compared to the regulations in several other countries, that there is a need for legal harmonization of personal data protection that is mature and deep

Problemy mediów w nowej strategii Unii Europejskiej "wzmocnienia odporności demokratycznej"

W artykule dokonano przeglądu aktywności instytucji Unii Europejskiej w kluczowych kwestiach unijnej polityki medialnej, podejmowanych w cieniu walki z pandemią COVID-19, w tym zwłaszcza planów związanych z wejściem w nowy etap strategii cyfrowej. Skutki digitalizacji w sektorze komunikacji i mediów obnażyły luki w dotychczasowych działaniach, legislacji oraz w zakresie zwalczania głównych zagrożeń. Komisja Europejska dostrzega groźny wpływ „infodemii”, negatywne skutki słabej harmonizacji prawnej oraz szkodliwe dla wolności mediów praktyki niektórych państw członkowskich, które ocenia jako podmywanie aksjologicznych fundamentów wspólnoty. Plany nowej Europejskiej Agendy Cyfrowej, europejski plan działania na rzecz demokracji oraz modernizacja dyrektywy o audiowizualnych usługach medialnych są względem siebie komplementarne. Mają one służyć „wzmocnieniu odporności demokratycznej”, podkreślając wizerunek i rolę Unii jako referencyjnego gracza nie tylko w przestrzeni rynkowej, ale także na polu globalnej walki o reguły demokratyczne.

Between occupation, exile and unification: sequestered and ‘abandoned’ properties in Serbia and Yugoslavia during and after the First World War

ABSTRACT This article examines Serbia’s policies regarding the treatment of enemy subjects, and, in particular, enemy property during and after the Great War. It situates these policies in the context of the Balkan Wars of 1912–13, when tens of thousands of Muslims are estimated to have fled the Macedonia and Kosovo regions, leaving behind their property and belongings. After the subsequent world war, the newly created Kingdom of Serbs, Croats and Slovenes struggled for international recognition, internal legal harmonization and the naturalization of former enemy subjects. These struggles often manifested themselves in Serbian policies towards issues of land redistribution, ownership rights and regional variations, as well as the legal status of the private and public property belonging to the former Habsburg and Ottoman Empires. These questions lingered right up until the late 1930s, when the Yugoslav state finally resolved these longstanding disputes with the successor states – Austria, Bulgaria and Turkey.

Prekogranični naslednopravni slučajevi i pokušaji harmonizacije srpskog zakonodavstva sa evropskim zakonodavstvom u oblasti naslednog prava

The study deals with the importance of harmonization processes related to the succession rules in the European Union. During the examination of the harmonization processes, a particular attention has been paid to migration, which nowadays has a deep impact on inheritance cases. In this regard the study demonstrates how the judicial cooperation is being realized in the European Union when it comes to succession-related issues. Among these, the study examines the current norms of the Serbian Act on private international law, which, from some aspects, has an obsolete system considering the conflict of laws rules in matters of succession with an international element. Namely, these rules are not harmonized with those of the European Succession Regulation, which means that the Serbian IPL system does not currently follow the European trends in legislation. Furthermore, it does not take into consideration certain current phenomena, especially the international migration and globalization. At the same time, Serbia is working hard to achieve a certain level of legal harmonization with the EU legislation. One proof of the harmonization attempts is the draft of the new PIL act of Serbia. The new concept of the conflict of laws rules and the new systemic approach of connecting factors is nearly completely identical with that of European legislative trends, especially regarding the scope of succession. If the draft act comes into force, it will mean, beyond any doubt, a giant leap for the country towards the European Union.

The EU Directives on Digital Contracts: An Important Step for Legal Harmonization in the area of e-commerce in Europe

The EU Directives on Digital Contracts: An Important Step for Legal Harmonization in the area of e-commerce in Europe

Spects of European Legal Harmonisation: When European Politicised Law Meets Freedom of Establishment and Vice Versa

spects of European Legal Harmonisation: When European Politicised Law Meets Freedom of Establishment and Vice Versa

The market, the regulator, and the government: Making a blockchain ecosystem in the Netherlands

AbstractThis article presents a socio-anthropological analysis of the formation of a business ecosystem around blockchain technology in the Netherlands, within the broader context of the European Union and the digital single market. I argue that while reproducing widespread global models of business group and network formation, the relations created by these networks also reveal particularities of local business and governance cultures. Such particularities emerge from the pragmatics of collaboration and competitive market relationships, as well as legal heterogeneity and plans for legal harmonisation in digital innovation and governance in Europe. They also emerge from the challenges and transformations that current experimentation cultures for digital innovation bring to the interactions between market players, regulators, and government. These challenges and transformations materialise in increasingly informal connections and strategies for experimental legitimisation, which occur in parallel to more formal and traditional forms of regulatory and governmental interaction. The article is based on ethnographic fieldwork in the Netherlands and in online terrains, including observation periods and 32 interviews with entrepreneurial project teams, as well as with individuals involved in financial incumbents’ innovation labs.

THE CISG AND CROSS-BORDER ACCESS TO COMMERCIAL JUSTICE

Global trade has changed rapidly, and in some ways dramatically, since the Great Recession began in 2008. Two sometimes competing factors are at play: the slowdown in globalization due primarily to protectionist measures employed at the national level and the new international opportunities created by technology and regulatory environment reform. Both factors present unique benefits and challenges for micro, small and medium enterprises (MSMEs)1 engaging in or planning to engage in cross-border trade. Barriers to MSME cross-border trade remain high, with one of the highest being the lack of cross-border access to commercial justice for smaller participants. There is a decreased incentive for small businesses to engage in trade and global value chains, or to use arm’s length contracts in such cases, where there is little potential for resolving disputes through litigation, arbitration or mediation. One solution that is gaining significant attention in legal, business and technology circles is Online Dispute Resolution (ODR), which is, in turn, driving legal harmonization that benefits MSMEs. This paper is a discussion of the evolution of a new generation of micro and small cross-border entrepreneurs, the growth of and rationale for improved access to commercial justice, the role the CISG should play in technology-assisted dispute resolution and, more generally, in establishing an environment conducive to MSME growth.

MINORITY LANGUAGES IN KOSOVO

The paper includes the legal aspect and political harmonization of human rights and freedom in the context of an analysis about the legitimate and executive function of the state of Kosovo. Guaranteeing civil rights it’s a part of and obligation that Kosovo institutions have, that are accorded in the legal structure of the fundamental human rights. This approach, mostly has to do with the majority community in Kosovo, that legally and politically are constitutional category.

Some Aspects of the Humanitarian Challenges of the Safe Reintegration Processes of Temporarily Occupied Territories of Separate Districts of Donetsk and Luhansk Regions: the Role of the Media

The article raises the issue of a large number of socio-humanistic challenges that will inevitably accompany the safe reintegration of TOT ORDLO (Temporarily Occupied Territories of Separate Districts of Donetsk and Luhansk Regions). These include problems of the citizens identification, dual citizenship (Russian Federation continues to distribute Russian passports), legal harmonization, education acquiring (in particular, enrollment to Ukrainian institutes of higher education of those who graduated from ORDLO and do not speak Ukrainian), vaccination against COVID-19 who crosses the Entry-Exit Checkpoint.It has been established that the term ‘safe reintegration’, which appeared in political and politological discourse, interprets this safety as a two-way process, which implies that the residents of TOT ORDLO must hear us, and we must hear them. That is, Ukrainians who find themselves in the occupation must understand and see that Ukraine hears them, knows about their problems, knows how to solve these problems and feels their hopes. How to achieve this? It has been found that in order to make the necessary information accessible to such persons, it is necessary to: a) ensure the availability of Ukrainian TV-channels (or other information resources) on these territories; b) create, produce and present a relevant content that will send the necessary messages and form stable attitudes and beliefs.The analysis of the availability of Ukrainian TV-channels on the media landscape of ORDLO and monitoring of the activity of the newly created ‘Dim’/‘Dom’ (‘Home’) TV-channel was conducted. By means of the content analysis, the quantitative and qualitative composition of the abovementioned TV-channel was singled out and the topics of the broadcast that interested an audience the most (by number of views in November and December 2020) was determinated. Alongside this, a review of Ukrainian news channels covering the problems of the temporarily occupied territories residents was performed. The following patterns are characterized and determinated: the most visited news coverages concern the peaceful settlement on the temporarily occupied territories, the foreign policy on the Russia-USA vector, the domestic policy of the Russian Federation and the policy of Ukraine relatively Donbass. The outstanding interest of residents of the occupied territories is attracted by the rubrics, which shall cover the problems of the region, show the audience’s interest in social, humanitarian and environmental issues.

The narrowness of Muslim personal law: practices of legal harmonization in a Delhi family court

Postcolonial Indian politics have been punctuated by major debates about Muslim personal law: the law and case precedent that applies to Muslims in matters of marriage, divorce, adoption, succession, and inheritance. These debates ask whether gender equality for members of all religious communities can be achieved in a religiously differentiated legal system. While some argue that a uniform civil code would be the critical mechanism to protect women’s rights, we suggest that Muslim personal law in fact plays a marginal role in family courts, where shared statutes already hold a much more significant place. Based on a mixed-methods analysis of cases from a New Delhi Family court, we demonstrate that Muslim women almost exclusively file cases under common, non-religious laws, and that the few cases filed specifically under Muslim personal law are often adjudicated on the basis of a combination of laws rather than on Muslim law alone. Yet, our findings also confirm that Muslims are only marginally present in state courts, and mostly use other means to adjudicate family disputes. This situation pushes against the idea that the “harmonization” of religious personal laws is sufficient to understand the legal complexities confronting minority women.