National Courts Research Articles

Courting Global Commerce: The Shifting Dynamics Between International Arbitration and International Commercial Courts

p class="MsoNormal"Globalization continues to flourish through international trade and interconnected economies, despite the rise of economic nationalism. Even as trends like onshoring gain traction, the importance of global trade and effective dispute resolution remains unchanged. Businesses still demand swift, cost-effective, and enforceable outcomes, which is where International Commercial Courts (ICCs) play a role. These courts fall into three categories: Global (e.g., Singapore’s SICC), National (e.g., China’s CICC), and Hybrid (e.g., those in Gulf financial zones), each focused on supporting cross-border commerce in distinct ways. Though arbitration is largely insulated from judicial intervention, it still depends on court cooperation for enforcement. Arbitration enjoys strong support in commercial hubs, where judicial interference is typically limited to extreme cases. However, systemic challenges persist, including the lack of uniform ethical standards and effective enforceability mechanisms for professional lapses. While ICCs prioritize transparency and discharge public functions, arbitration remains a private process that benefits only the involved parties, with no authoritative public case law generated. Both systems share a common goal of providing effective justice, aligned with commercial norms, but they offer complementary advantages that support global trade. This dual approach allows businesses to choose between public judicial mechanisms and the confidentiality and flexibility of private arbitration. Arbitration’s unique strengths – confidentiality, procedural adaptability, expert arbitrators, and broad enforceability under the New York Convention, which is recognized by 172 countries – make it unlikely to be replaced by commercial courts. Arbitration awards are often easier to enforce than court judgments, which can face significant hurdles. Additionally, the neutrality of arbitration addresses concerns about bias in national courts, reinforcing its status as the preferred method for resolving international commercial disputes. While ICCs strive for similar neutrality, they have yet to match arbitration’s global enforceability, unless conventions like the Hague Judgments Convention gain broader adoption. Arbitration processes and ICCs complement each other but do not directly engage each other on the prevailing creases. To iron this out, the establishment of a forum where arbitrators and judges collaborate could drive innovation in cross-border disputes, enhance the synergy between arbitration and judicial systems, and strengthen global commerceo:p/o:p

The National Judiciary as an Exceptional Measure in the Face of the Crimes of the Zionist Entity in the Gaza Strip

In light of the inability of the United Nations to stop the Israeli aggression on the Gaza Strip, as the official sponsor of international peace and security, many countries are calling for the application of the law of war between states to occupied Palestine. However, reality proves that the application of this law was and still is merely ink on paper in the Palestinian case, because the international will is very much in solidarity with the occupier, this does not prevent Israel’s crimes from being documented to be put before international courts in the future, as happened in the war crimes of Bosnia and Herzegovina, Sierra Leone, and Rwanda, or national courts as the alternative or available option for states in accordance with what was stipulated in the four Geneva Conventions. Therefore, it must direct the national judiciary towards what is known as universal jurisdiction to pursue war criminals in the Gaza Strip.

The effects of COVID-19 on Polish enterprises

The COVID-19 pandemic had massive impacts on economic sectors. This paper explores the economic effects of COVID-19 on 150,000 Polish enterprises. The paper analyses financial data from the Polish National Court Register and explores heterogenous impacts brought by the COVID-19 pandemic across multiple sectors. Its innovative contribution lies in adopting a granular perspective to assess the sector-specific impacts of COVID-19. This approach distinguishes the paper from much of the existing literature, which predominantly emphasises global or macroeconomic outcomes. The paper compares financial ratios across 2019 and 2020, applying Wilcoxon and Mann-Whitney tests to measure changes in profitability, liquidity, working capital, and leverage ratios. Key findings indicate a disparity in revenues across sectors, with some showing resilience in adapting to pandemic-induced challenges. The analysis reveals that 28 PKD divisions experienced significant revenue reductions (up to −70% in tourism-related sectors), while 25 divisions experienced gains (up to +23% in Information Technology sectors).

МЕЖДУНАРОДНО-ПРАВОВЫЕ АСПЕКТЫ БОРЬБЫ С ИЗМЕНЕНИЕМ КЛИМАТА И СТРАТЕГИИ ИХ РАЗРЕШЕНИЯ

This article analyses the international legal aspects of combating climate change and develops strategies to effectively address them. The paper highlights key international treaties, such as the UN Framework Convention on Climate Change, the Kyoto Protocol, and the Paris Agreement, and explores their impact on global climate policy. The authors focus on the contribution of national courts and countries in the Global South to the application and development of international climate law. The article goes on to address the complexities involved in implementing international commitments and suggests measures to strengthen legal mechanisms to enhance the effectiveness of interstate co-operation in this area. Special attention is given to the need for deep engagement between countries and international organizations to combat climate change more decisively, highlighting the importance of a global response to this threat.

The use of electronic evidence in criminal proceedings: issues of collection, verification, and evaluation

In modern criminal proceedings, the use of electronic evidence has become an important tool in proving the guilt or innocence of the accused. With the development of information technology and the digitalization of society, the role of electronic evidence, such as files, messages, video and audio recordings, data from mobile devices, and other forms of digital information, has significantly increased. These types of evidence can be crucial for confirming facts that are of essential importance for a criminal case and also for effectively investigating crimes, especially when traditional methods of evidence collection are less effective. However, along with its significant potential, there are serious problems in the use of electronic evidence. One of the main issues is ensuring their authenticity, as electronic evidence can be forged, altered, or destroyed, making it difficult to accept in court. For electronic evidence to be used in court, it must meet the requirements of admissibility, technical integrity, and the legality of collection. In practice, however, situations often arise where the absence of clear procedural norms or improper collection of evidence leads to its rejection by the court. At the same time, given that much electronic data is stored on servers abroad, there is a need for international cooperation to obtain and use such evidence in national courts. Problems also arise due to limited access to this data and the complexity of its examination. In this context, there is a need to adapt national legislation to modern technological challenges and adopt international experience to improve the process of collecting, verifying, and evaluating electronic evidence. It is also important to enhance the qualifications of judges and law enforcement officials in the field of digital forensics and provide them with the necessary technical tools to improve procedural control and reduce the risk of falsifications. Only with proper legal and technical preparation can the effective use of electronic evidence in criminal proceedings be ensured, which, in turn, will improve the level of fairness in the process.

Ecclesiastical Record Books and Political Legitimacy in Mid Seventeenth-Century Scotland

This article explores the ways that ecclesiastical record books produced by national and local Church courts in Scotland were bound up in the contests for legitimacy around the Scottish Revolution. The article argues that adherents to the National Covenant used paper record books and the practices that surrounded them, as well as their printed output, to legitimise their protest movement and to attack their opponents. Reconstructing the Church in paper represented an essential part of the Covenanters’ protest, reconstructing the Church after the fall of episcopacy.

Generative AI, Reproductions Inside the Model, and the Making Available to the Public

Abstract The training of generative artificial intelligence (AI) models requires the collection and analysis of a staggering amount of data, most of which consist of copyright-protected works. To date, the question whether reproductions of these works are created inside the models during their training has seldom been discussed. This is a serious blind spot in the debate given that such reproductions – e.g., inside ChatGPT’s or Stable Diffusion’s models – could be made available to end users and, therefore, to the public when AI services are offered online. Under the InfoSoc Directive, this might be copyright infringement. EU Member States’ national copyright laws would then apply and their national courts would have international jurisdiction. Seen in this light, the widely propagated narrative that non-EU AI developers are not subject to EU copyright law is an illusion.

Náhrada újmy způsobené nezákonným stíháním za přestupek

This text deals with the topic of the liability of the state for the damages caused by unlawfully conducted misdemeanour proceedings. This issue is not elaborated in the literature often, therefore the authors of the text aim to analyse its selected aspects in more detail. The prosecution for an offence constitutes a criminal charge within the meaning of Article 6(1) ECHR and is effectively on the same level as a criminal prosecution. Where a person is charged with either a criminal offence or a misdemeanour, and such proceedings have been conducted unlawfully, i.e., have not resulted in a final conviction or a final decision of an administrative authority, it is clear that such a person may have suffered harm as a result of the unlawful conduct of the public authorities. In the case of misdemeanour proceedings, unlike criminal proceedings, it has long been out of the question for the courts to award damages. A breakthrough came only in 2019, when the Constitutional Court admitted that even in the case of unlawful prosecution for an offence, the accused is entitled to compensation for damages, and only in certain circumstances, in which the Constitutional Court has not commented in detail. The authors of this text therefore focus in more detail on the question of in which cases and under what conditions a person unlawfully prosecuted for an offence is entitled to compensation for damages or non-pecuniary harm, in particular, on the basis of an analysis of case law. The aim of the text is to capture the decision-making practice of the courts and to analyse the arguments of the national courts in more detail.

The Status of a Child Who Is a European Union Citizen in the Light of the Right of Residence under Article 20 TFEU

Abstract In its recent judgment (C-420/22 NW and C-528/22 PQ of 24 April 2024), the EU Court of Justice once again referred to the concept of ‘deprivation of the substance of the rights conferred by citizenship of the Union’ in the context of a possible obligation of a minor EU citizen to leave the territory of the Union if a right of residence is not granted to a third-country national who is a family member of that citizen. This paper proposes looking into the legal situation of minor EU citizens and their parents who are third-country nationals through the lens of the concept of EU citizenship. It aims to analyse the judgments of the EU Court of Justice, starting with the case of Ruiz Zambrano. What all of them have in common is that all of the parties in the proceedings before national courts are third-country nationals and parents to children who are EU citizens. These judgments helped clarify and systematize both the children’s and the parents’ situations, with important implications for the scope of their rights. The paper thus proposes the systematization of several issues, e.g. the scope of the ‘essence of rights’, its possible limitations, the consequences for both EU and non-EU citizens, the notion of dependence, the obligation to have suffi cient resources and the importance of fundamental rights. The methodology includes an analysis of Court of Justice case law, with special consideration of the facts of cases before national courts, as well as a critical reading of the relevant literature.

Administrative process in the context of European justice standards

The article deeply analyzes the administrative process in Ukraine, emphasizing the critical need for its compliance with European standards of justice. The impact of the European Convention on Human Rights on domestic administrative legislation, existing challenges and possible ways to overcome them is considered in detail. The author draws attention to the importance of transparency, fairness and efficiency in administrative procedures and analyzes the key principles that should be integrated into national practice. Much attention is paid to the role of national courts in ensuring compliance with international standards, which are the foundation for protecting the rights and freedoms of Ukrainian citizens. The article also highlights the current challenges faced by the administrative process in Ukraine, in particular, legal gaps, problems with the implementation of European standards and shortcomings in procedural codes. The author discusses the consequences of such shortcomings, which make it difficult for citizens to access fair and effective justice. Further improvement of the administrative process, as noted in the article, requires a comprehensive approach, which includes legislative reforms, strengthening of the institutional independence of courts, introduction of modern technologies to optimize processes and active involvement of the public in monitoring and evaluation of legal initiatives. The author suggests concrete steps to improve the situation, including strengthening legal certainty, improving the qualifications of judges, implementing transparent procedures, and involving the public in the reform process. The article ends with a conclusion about the importance of integrating European practices into the national justice system, which is key to ensuring respect for human rights, strengthening democracy and the rule of law in Ukraine. The author emphasizes that only through the joint efforts of national and international organizations, state institutions and the active participation of civil society, it is possible to create an effective system of administrative justice that will contribute to the real protection of the rights and freedoms of every citizen, in particular, the conducted study of the development trends of the administrative process in the context of European standards of justice in Ukrainian practice emphasizes several key aspects that are important for the further development and improvement of the legal system.

Expulsion of a participant from a corporate legal entity as a sanction in corporate law

The article defines the exclusion of a participant from a corporate-type legal entity as the compulsory termination of their participation in such an entity, based on grounds provided by law. This is recognized as a universal reason for the termination of corporate relations in business entities (except joint stock companies) and production cooperatives. The author identifies the qualifying features of this measure as follows: 1) it is applied by corporate-type legal entities as a sanction against unscrupulous participants who, through their actions (or inactions), violate legal requirements or the provisions of the entity’s constituent documents and fail to fulfill their duties; 2) the application of this sanction does not depend on the will of the participant (member) being excluded. The article systematizes the grounds for making decisions on the expulsion of participants from corporate-type legal entities in the following cases for: 1) members of Limited Liability Companies and Additional Liability Companies; 2) members of general and limited partnerships; 3) members of production cooperatives. It is argued that the expulsion of a participant, depending on the legal form of the entity, has distinct features related to both the grounds for and the procedure of expulsion. The article also examines the approaches of national courts in resolving cases of expulsion of members of Limited Liability Companies. It emphasizes that expulsion based on grounds not explicitly provided for in special legislation is not permitted. Moreover, the article highlights that a court decision to exclude a participant constitutes interference in the economic activities of a company. Therefore, courts do not have the authority to assume the functions of a company’s management bodies. Instead, their role is limited to verifying the validity and legality of the decision to exclude a participant if a claim is filed to invalidate such a decision. The author warns that an absolute inability of a company to remove an unfair shareholder can lead to a corporate deadlock, a trend increasingly observed in business practices today.

The principle of ne bis in idem and the European arrest warrant as vehicles for the CJEU for redefining the powers of national prosecutions in EU law.

The article examines how the Court of Justice of the European Union (CJEU) through its judgments enlarged the ambit of the ne bis in idem principle in a certain aspect and redefined attributes of national prosecutions. More poignantly, how the Court's recognition of a possible res iudicata effect of prosecutorial decisions binding on other EU Member States triggering ne bis in idem protection not only empowered national prosecutions but also implicitly pushed Member States to further harmonize their criminal justice systems. At the same time, by finding that prosecutions may not only issue European arrest warrants (EAW) but also terminate criminal proceedings with res iudicata consequences obligatory for other Member States initiating EU wide recognition of the termination's ne bis in idem force, the CJEU elevated national prosecutions-depending on domestic legal prerequisites-to the level of national courts. It is argued that by reading these judgments together, the CJEU's jurisprudence might have created frictions between the Member States' criminal justice systems and reshaped terms such as "judicial authority" and "effective judicial protection" in a way which lowers the level of protection afforded to the individual, be that, to make cooperation in criminal matters more effective between Member States.

Application of international experience in the consideration by national courts of cases on compensation for damage caused as a result of armed conflict

The article examines the existing international experience in the area of compensation by courts for damage caused as a result of armed conflict, which would be relevant to Ukrainian realities and applicable to Ukrainian national court practice. In order to comply with the standards of fair trial provided for in Article 6 of the ECHR, we believe it is reasonable to conclude that when considering the issue of compensation for victims of armed conflict, Ukrainian judicial proceedings in terms of the general restoration of justice for this category of persons should refer to international principles to assess the existence or absence of the right to compensation for damage caused as a result of armed conflict at the initial stage of proceedings (for example, when deciding whether to open proceedings). Also, for the purpose of effective judicial proceedings aimed at restoring property rights of individuals, but also in such a socially important category of cases as compensation for damage caused as a result of armed conflict, it is necessary to take into account international legal acts that provide for the prerequisites and rules for compensation for damage caused as a result of armed conflict, as well as the provisions of the ECHR and the case law of the ECtHR. The author establishes that no State may rely on State immunity in cases of compensation for damage caused by armed conflict or military aggression, and the application of State immunity does not amount to denial of justice, and State immunity may not prevent judicial enforcement of the jus cogens rule prohibiting war crimes. For Ukraine, the issues related to the practical implementation of effective fair trial ensuring that it complies with the provisions of Article 6 of the ECHR in court proceedings on compensation for victims of armed conflict are extremely relevant, which is possible by referring to the already established international mechanisms and case law, including decisions of international judicial institutions. Key words: compensation for damage caused as a result of armed conflict, ECHR practice, fair trial standards.

ARBITRABILITY OF CONCESSION DISPUTES IN SLOVENIA

A fundamental question at the beginning of any arbitration is whether any public policy rules prohibit the dispute to be decided by arbitration. As arbitration became a widely accepted alterna- tive to litigation in national courts, the scope of arbitrable disputes was expanded to allow for a wide range of disputes to be resolved through arbitration. The authority to restrict arbitrability lies with the legislator, which generally does so only in cases where it is war- ranted by serious public policy concerns. The Slovenian Arbitration Act is a modern act that provides for a wide concept of arbitrabil- ity. When the Slovenian legislator unexpectedly tried to restrict the arbitrability of concession disputes by adopting an authentic inter- pretation of law restricting arbitrability for concession disputes, it created significant uncertainty for the parties who have included an arbitration clause in their concession contracts or who were consid- ering doing so. The Slovenian Constitutional Court confirmed that the authentic interpretation of law cannot be used to give binding interpretations on how to rule in specific cases because it would undermine the core principle of the separation of powers and inde- pendence of judges. While it has now been settled that the authentic interpretation should not be applied, it nevertheless remains a skel- eton in the legislator’s closet since the legislator had not expressly invalidated or retracted the authentic interpretation.

Consideraciones y análisis dogmático del delito de maltrato animal en Colombia a la luz de la ley 1774 de 2016 y el replanteamiento de los elementos estructurales del tipo

In this context, the object of this work is to carry out an analysis of the different theories proposed by the doctrine when determining the legal and social advances regarding the status of the animal, identifying the legal asset to be protected through the classification of the conduct punishable by animal abuse, as well as the criticism that these approaches have generated from doctrinal sectors contrary to them. To this end, the hypotheses raised by different authors with an impact on the matter will be analyzed, as well as some statements by national courts through their rulings.

Czy dyrektywa w sprawie ochrony osób zgłaszających naruszenia prawa Unii może być stosowana w Rzeczypospolitej Polskiej bezpośrednio? Przyczynek do dyskusji

The article aims to attempt to answer the question of whether – in the face of the inaction of the national legislator – Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (hereinafter: the Directive) can be applied in the Republic of Poland directly to potential whistleblowers concerning situations occurring in the period from the expiry of the deadlines provided for the implementation of the Directive to the date of entry into force of individual provisions of the Act of 14 June 2024, and if so, to what extent? In making this attempt, the authors of the study rely on the criteria developed in the case law of the Court of Justice of the European Union (hereinafter: CJEU) determining the possibility of direct application of directives and the modest practice of Polish courts in this area to date (three judgments). In the study, the authors present practical problems for potential whistleblowers resulting from the lack of transposition of the Directive; ratio legis and the essence of the institution of whistleblowing; its subjective scope, i.e. the circle of entities interested in the direct effectiveness of the Directive and its objective scope; the procedure for reporting infringements of the law and – against the background outlined above – the issue of the direct effectiveness of the Directive in the Republic of Poland. Within the framework of the latter issue, the authors not only present the main conclusions resulting from the case law of the CJEU and national courts but also interpret the most important provisions of the Directive from the point of view of a potential whistleblower in terms of the possibility of assigning their direct effect. The analysis conducted unequivocally leads to the conclusion that the Directive can be applied directly in the Republic of Poland, certainly in the period from the expiry of the deadlines for its implementation to the date of entry into force of the Act of 14 June 2024 on the protection of whistleblowers. This conclusion refers in particular to the most important articles from the point of view of potential whistleblowers: 15, 19, 21, 23 and 24 of this act. The study uses the dogmatic method and the method of case law analysis. Due to the submission of the article for publication before the date of filing the draft bill on the protection of whistleblowers, the analysis of the provisions of the Act of 14 June 2024 on the protection of whistleblowers (Journal of Laws 2024, item 928) is beyond the scope of this work.

Transnational Judicial Control in EU Law: The Practice of National Courts

This special issue explores how national courts review foreign administrative acts within the EU’s integrated administration framework. It examines whether and how courts engage with transnational administrative acts arising from horizontal cooperation between Member States in fields such as taxation, migration, pharmaceuticals, and social security. While principles, such as territoriality and mutual trust, have historically constrained judicial review of foreign acts, recent case law from the Court of Justice of the EU suggests an evolving approach that mandates judicial scrutiny in certain cases to safeguard the right to an effective remedy under Article 47 of the Charter of Fundamental Rights. Through a comparative analysis of national court practices in six Member States (Germany, Greece, Italy, Portugal, Sweden, and France) this study identifies significant disparities in judicial engagement: some jurisdictions actively review foreign acts under EU law while others remain reluctant to do so. The findings highlight gaps in judicial protection and the emerging influence of mutual recognition and sincere cooperation principles. It concludes that while national courts are beginning to acknowledge their role in reviewing transnational administrative acts, inconsistencies in approach and limited case law suggest the need for further legal development and research to ensure effective judicial protection within the EU's integrated administration system.

NextEra/9REN v. Spain: The Latest in the Recognition and Enforcement of ICSID Arbitral Award in Intra-EU Dispute

The decision of the US Court of Appeals for the District of Columbia in joined cases NextEra Energy Global Holdings B.V. and NextEra Energy S Pain Holdings B.V. v. Kingdom of Spain, and 9REN Holding S.A.R.L. v. Kingdom of Spain, confirms that national courts are not prevented from recognizing and enforcing intra-EU ICSID arbitral awards. While some issues raised by the parties could have been conclusively determined by the Court, the value of the decision cannot be diminished. In fact, the decision validates the significance of the ICSID Convention and of the original commitment of the drafters of the Convention to the final and binding nature of the ICSID arbitral awards. Moreover, the decision confirms that the intra-EU development which has generated a ‘complex international puzzle’ does not weaken the reality that the overall rate of voluntary compliance and post-award settlement of ICSID awards is of 90%, with a further 7% of awards being satisfied following successful enforcement proceedings.

Taxation of Company Directors in the European Union

This paper analyses the judgment of the Court of Justice of the European Union of December 21, 2023, in Case C-288/22. The European court response to the questions submitted by a Luxembourg court for a preliminary ruling enabled the resolution of an appeal filed by a taxpayer against the Luxembourg tax administration, which had determined that his remuneration as a company director was subject to value-added tax. The European court finally sided with the appellant, obliging the national court to annul the ex officio tax assessment. In addition to analyzing the aforementioned judgment, this paper also considers its implications for the European Union as a whole.

Certain issues of the application of equity law in cases related to the temporarily occupied territories of Ukraine

The author of this scientific article examines the prerequisites and future prospects for the application of equity law (also known as «common law») as an element of the Anglo-Saxon legal family in resolving legal disputes related to the temporarily occupied territories of Ukraine. Specifically, the article explores the peculiarities of applying principles prevalent in equity law, such as the principle of equity and the principle of trust. Additionally, the mechanism of estoppel is analyzed, which can be used to protect the property rights of citizens, other individuals, and legal entities, as well as to restore justice in conditions of an insufficient legal framework to resolve such legal issues. At the same time, the author does not limit the study to theoretical aspects of equity law within the Anglo-Saxon legal family but also conducts a comparative analysis of approaches to this legal phenomenon within the continental legal family. The article compares the approaches of these legal systems to resolving legal disputes in crisis conditions, including cases of military occupation and armed conflict. Particular attention is paid to existing international precedents, including the practices of the European Court of Human Rights, the International Criminal Court, and decisions of national courts in states with Anglo-Saxon legal systems. The possibilities of implementing these approaches into Ukraine’s national judicial practice are also considered. The article separately addresses the existing legal regulation of relations in the temporarily occupied territories of Ukraine, including legislative acts, judicial practice, and international standards. It proposes the adaptation of equity law principles to improve the resolution of property disputes, compensation for damages, and protection of the interests of legal entities. Recommendations are provided for enhancing Ukraine’s judicial practice in resolving international and cross-border disputes.