National Public Law Research Articles

How Domestic Legal Systems Respond to International Local Government Law: Between Accommodation, Resistance and Transformation

Cities play a key role in today’s multi-level political and legal order. Due to the combined effects of decentralization, globalization and technological innovation, they are at the forefront of many pressing societal issues and use this position to develop nimble solutions thereto. Challenging the traditional state-centric perspective of international law, ‘international local government law’ shows how global institutions engage with cities directly. Specifically, these institutions promote a global model of the ideal city, defining how it should be organized, how its policies should be made, and how its relations with central authorities should be shaped. Yet, as cities are subject to national constitutional constraints and local level dynamics, this vertical interaction and its effects cannot be fully understood without considering features of the domestic legal system in which each local authority is embedded. The current chapter explores how national public law respond to the ideal city model as pursued by international local government law. Drawing on selected examples, we present a tentative framework advancing three possible responses of domestic legal systems to international local government law, namely resistance, accommodation and transformation. Moreover, a closer look at these responses reveals several challenges to the effectiveness and legitimacy of international local government law.

УПРАВЛІННЯ КОМУНАЛЬНОЮ ВЛАСНІСТЮ ЯК ПЕРЕДУМОВА ВИНИКНЕННЯ ПУБЛІЧНО-ПРАВОВИХ СПОРІВ

Decentralization of power in Ukraine that was launched in early 2015 has extended the powers of local governments in the communal property management. Communal property management is a multi-faceted process of a public-law nature aimed at meeting the needs of the residents of the community, and may therefore be a prerequisite for the public-law dispute considered in the administrative court. Thus, there is a need to explore this category through the prism of its public law (administrative law) character. In view of this, the goal of this article is to characterize communal property management as an administrative law category. To achieve the goal, several methods have been applied: analysis and synthesis (for definition of concepts and their characteristics investigated in this article), comparison (for comparing different views of researcherson certain legal phenomena), dialectical method (for research of management of communal property as a legal phenomenon formed by various factors). The article defines the concept of communal property management as a prerequisite for the public-legal disputes as well as its features and forms, provides their classification, and specifies the difference between public legal and private legal aspects of the phenomenon under research. The paper proves that the communal property management is an administrative-legal category which has a private-legal aspect that can be distinguished by applying both doctrinal approaches and normative regulation.

Some issues of attributing a bank as problematic

The article critically assesses the provisions of national legislation regarding the normative consolidation of the powers of the National Bank of Ukraine as for the establishing the grounds for attributing a banking institution as problematic. Describing the fixed grounds for the stated action, the above conclusion was made taking into account the impossibility of vesting the NBU with legislative functions based on the postulates of the theory of separation of powers. Considering theoretical achievements, attention is drawn to the absence in the Constitution of Ukraine of a norm on classifying the NBU as a legislative, executive or judicial power. At the same time, attention is drawn to the difficulty of appealing against a decision of the country’s central bank on attributing a banking institution as problematic. Assigning a bank to a problematic category by the NBU poses a rather difficult problem to challenge the decision of the central bank of the state. Given the public-law nature of the dispute with the subject of power, such a dispute should be considered by a court of administrative jurisdiction. However, the complexity of such an appeal is determined not by the difficulty of determining the jurisdiction of the court as an integral part of the right to a fair trial. The peculiarity of material relationships in the system of economic turnover in this case is that the decision of the NBU to classify the bank as problematic belongs to information containing banking secrecy

A Public Law View of the New Generation of FTAs

This article intends to consider what the new generation of FITs might signify for our understanding of public law. Rather than modelling international public law or questioning its legitimacy derived from national public law (or one independently generated), I want to focus on a ‘public law’ thread running through all of this. The analysis here traces the transliteration of investment protection arbitration from public international law to international public law. It begins first by briefly outlining the established position of foreign direct investment protection in public international law. It then reviews the public law character claimed for investor-state arbitration, a claim which is criticised. And finally the analysis considers how those public law elements can feed ‘international public law’. This points to forms of transnational legal pluralism and I consider at the end what the implications may be for a conception of state and law.

Charakter prawny opłaty planistycznej w świetle orzecznictwa sądów administracyjnych przed wejściem w życie ustawy o finansach publicznych z 27 sierpnia 2009 r. i po nim

This publication aims at presenting an issue of the legal nature of the planning fee and an assessment of a potential application of the relevant provisions of the Tax Law Act in this regard. Considerations, which are discussed in this article are based on the analysis of the judicial decisions of administrative courts which were made before an entry into force of the Public Finance Act of 27 August 2009, and those which have been were made after this period. The opinion that the planning fee is not a tax but it is a non-tax liability of the commune’s budget to which provisions of the Tax Ordinance do not apply dominated judicial decisions made before the entry into force of above-mentioned act. These decisions were grounded in administrative courts opinions that this fee cannot be regarded as a tax within the meaning of Article 6 of the Tax Ordinance. Moreover, courts’ decisions were not determined by tax authorities. Controversies concerning the legal nature of the planning fee have not ceased even when the Public Finance Act of 2009 entered into force. This happened despite the fact that non-tax budget liabilities of a public law nature were included in the above-mentioned Act. Nevertheless, it seems justified to state that judicial decisions of administrative courts, including the most recent judgments, were based on the opinion that the planning fee is a non-tax budget liability of a public law nature. Courts clarified that the provisions of the chapter III of the Tax Ordinance apply mutatis mutandis to these fees. This view was derived from Article 67 of the Public Finance Act. However controversies in judicature were raised, especially because of the fact that Article 60 of the Public Finance Law does not enumerate this fee in the catalogue of non-tax budget liabilities of a public law nature.

MANAGEMENT (ADMINISTRATIVE) ACTIVITY OF THE CONTROLLING AUTHORITIES IN THE AREA OF TAXATION: ESSENCE AND TYPES

The innovation of conceptual provisions of the administrative law doctrine that are based on the priority of rights, freedoms, legitimate interests of an individual, service orientation of the public administration authorities’ performance affects the essence of the controlling authorities’ management (administrative) activity in the area of taxation and requires its fundamental upgrade. Drafting of theoretical provisions as to the essence and the types of the controlling authorities’ management (administrative) activity in the area of taxation should be based on a profound theoretical and legal analysis of the existing concepts and doctrines and their comparison with the current developments in the public administration authorities’ performance that carry out similar activities. In addition, it’s reasonable to highlight the issues of legal regulation of the relations with respect to the controlling authorities’ management (administrative) activity carried out in the area of taxation. The research objective is to substantiate the theoretical background of the controlling authorities’ management (administrative) activity in the area of taxation set out in the form of a list of the substantive characteristics of such activity, the provisions that reflect its peculiarities, as well as the systematization of the lines and types of such activity. The object of the research is the social relations of a public-law nature, related to the activities of the controlling authorities in the area of taxation. The contemporary concepts and doctrines developed by the scientists through critical thinking constitute the theoretical basis of the scientific analysis. This article explores the scientific papers related to the issues of public administration, administrative law, and administrative activity. System-based approach constitutes the methodology of the scientific analysis which made it possible to single out the elements of the administrative activity system, to reveal their content and to take into account their specific features when determining the nature of the controlling authorities’ management (administrative) activity in the area of taxation. The result of this research is the theory that reveals the current essence of the specified activity and its lines. This article places emphasis on the existence of public and service component of the specified activity.

Международная гармонизация и унификация в отраслях национального публичного права

Международная гармонизация и унификация в отраслях национального публичного права

Hatósági előírások betartása és az üzembentartó mentesülése a kártérítési felelősség alól – a bírói gyakorlat tükrében

In general, the key condition is the official licensing for the lawfulness of carrying out a highly dangerous activity, even if the facts of the official license (being done or missing), of the appropriate carrying out and the operation, and of the observance of rules and regulations, remain irrelevant issues in the viewpoint of the civil law liability for damages. Our opinion is that the typical public law provisions (i.e. official licenses, official controlling) prescribing precautions, preventive measures against the source of high danger have retroactive effect – though an indirect one – upon the civil law assessment of the dangerousness of a given activity or thing, and they also have effect upon the establishing of the civil law liability for damages, which tendency is enhanced by the compulsory liability insurance as it is gaining ground. The following essay intends to deal with these issues with the help of the Hungarian judicial practice, the international legal literature, especially the theories of the mixed nature of public and civil law in the scope of liability for highly dangerous activities and the works in the field of Law and Economics

Uslovi za solemnizaciju ugovora o prodaji nepokretnosti zaključenog u vansudskom postupku namirenja

Public notaries act as holders of public authority and are obliged to protect the interest of legal certainty. The requirement of legal certainty is stronger than any individual request, and the public notary, as a holder of public authority, must uphold this. The public interest represents the gravitational field of any public notary operation. The legal rules governing the procedure of denying a public notary act determine the public law nature of the notary public service in a substantive manner. When assessing the fulfillment of the conditions for the solemnization of a document in each proceeding, the notary public must strictly apply the provisions of the law that prescribe the grounds for denial of an official act. The out-of-court mortgage settlement procedure is carried out without the involvement of public authorities. Such a regulated procedure is outside the logic of the execution procedure, and the notary public is the only public law entity before which a real estate sales contract concluded in an out-of-court settlement procedure is submitted for solemnization. Therefore, from the point of view of the protection of legal certainty, his role as the controller of the legality of the previously conducted out-of-court mortgage settlement procedure is further emphasized when he assesses the fulfillment of the conditions for the solemnization of a real estate sales contract concluded in an out-of-court settlement procedure. One of the conditions for the solemnization of a real estate sales contract is also the absence of a reason for denial of an official act, which the notary public must strictly examine in accordance with the rules of the law governing the public notary activity. When assessing that the aforementioned condition is not fulfilled, the public notary is required to refuse the solemnization of such real estate sales contract concluded in the out-of-court settlement procedure.

The Binding Nature and Enforceability of Hybrid Global Administrative Bodies’ Norms Within the National Legal Order: The Case Study of WADA

There is growing attention in legal scholarship for global administrative law and the changing nature of public law in general. Still, few authors have bridged the gap between hybrid global administrative bodies, which often construe soft law norms, and nation states, which increasingly make these norms binding and enforceable in the national legal order. The question arises as to how soft law norms are made binding and enforceable within nation states after they were drafted by hybrid global administrative bodies. The manner in which the Flemish federated entity in Belgium incorporates the World Anti-Doping Agency’s norms represents an instructive case study to formulate a tentative response to this research question. The World Anti-Doping Agency is an example of a global hybrid actor that was founded and continues to exist through the partnership between governments and private (sports) organizations. The article first shows that national legislation may be a necessary method to transpose hybrid global norms in the national legal order. Second – out of at least three techniques to adopt legislation (reception, delegation and dynamic referral) – the latter technique could represent the compromise between efficiency and constitutionality. However, the dynamic referral technique is equally limited by constitutional law and the European Convention on Human Rights. The article concludes with a number of recommendations for national legislatures or executives when they refer dynamically to hybrid global norms as a technique of modern public lawmaking.

FUNDAMENTAL PRINCIPLES OF THE LATIN NOTARIATE AND THEIR REALIZATION IN UKRAINE: HISTORICO-LEGAL ASPECT

In the article, based on the analysis of the fundamental principles of the Latin notariate and their realization in Ukraine, the most important conceptual problems of the notariate are highlighted: improvement of the domestic notarial legislation is required.Proceeding from the current Ukrainian realities and taking into account the historical experience of the functioning of the notariate in Europe in general and in Ukraine in particular, the most appropriate way of organizing notary activity is the activity based on its Latin model. The revival and further development of the Latin type notariate in Ukraine is an optimal and progressive way of the Ukrainian notariate developing. Further implementation in the Ukrainian notarial legislation still unrealized in it or insufficiently realized basic principles of the Latin notariate, is an objective process that confirms Ukraine's progress towards a legal democratic state, its entry into the European legal space and corresponds to the historical development of the Ukrainian notariate. The principles of the Latin notariate, on which its system is based, have been tested by time. They reflect the public-law nature of notary activity, have a normative character and are historical categories that have arisen and evolved over the centuries of history of the notariate, are elements of human culture in general, a value that embodies such ideas as a legal state, civil society, equality and independence of the subjects of civil circulation. If analyze the history of the formation and development of the notariate institution in Ukraine, it becomes quite obvious that it, with the exception of certain short periods, tended to the Latin model of the notariate, and its basic principles were largely enshrined in national legislation. Further development of the notariate in Ukraine, optimization of its functioning, improvement of the legislation should be based on the historical experience of the notary institution in Ukraine, the current world ' s trends in the development of the notariate, related to the activities of the International Union of Notaries, whose members today are 86 national associations of notaries and on the fundamental principles of the Latin notariate, determined under its auspices. In view of this, a number of suggestions for improving the current notarial legislation were formulated by the author (elimination of the existing division of the notariate into public and private, the refusal of the term «private», the need to quantify the number of notaries, the extension of the powers of the professional association of notaries, the introduction of a new procedure for payment of notarial acts by the same tariffs within the territory of Ukraine etc.).

Investor to State Dispute Settlement (ISDS) Mechanisms: A Comparison of Evolving Legal Approaches in Brazilian and Latin American with the European Union

Investor to State Dispute Settlement (ISDS) Mechanisms: A Comparison of Evolving Legal Approaches in Brazilian and Latin American with the European Union

The Constitutional Fit of European Standardization Put to the Test

The adoption of harmonized standards (HSs) within the framework of the ‘New Approach’ is a long-standing phenomenon of the European decision-making process. Yet, an important question remains how their use actually fits in with the Union’s legal system, in particular in the light of the changes Regulation 1025/2012 has brought as well as the hierarchy of norms introduced by the Treaty of Lisbon and the recent case law of the European Court of Justice. In analysing this question, this article concludes that given that HSs are gaining an increasingly EU public law nature and are akin to the Commission’s exercise of implementing powers, it can be doubted whether the constitutional safeguards the Regulation provides are sufficient. The ‘constitutional fit’ of European standardization is in need of improvement as the limited constitutional safeguards for this type of delegation of powers are in sharp contrast with those that have been put into place in the Treaties for the Commission’s own exercise of delegated power.

Die betekenis van die bepalings van die 1996 Grondwet: Die aanhef en hoofstuk 1

The Preamble and Chapter 1 This contribution is intended to be the first installment of a systematic interpretation of the Constitution of the Republic of South Africa 1996. 
 Due to the foundational and repetitive reference in the text to values, regard must constantly be had to those values when this Constitution is interpreted. 
 Even though the preamble does not contain positive norms, is an important interpretive source of the foundations of the Constitution. An important deviation from the preamble of the 1993 Constitution, is that the term Rechtsstaat ("constitutional state") is not employed. The introduction of this notion in South African law and its meaning in general is described. With reference to relevant dicta in recent constitutional cases, the Constitutional Principles in terms of which the 1996 Constitution was formulated and the text of the Constitution itself, it is argued that this is essentially a Rechtsstaat Constitution, but that the divergence in the range of constitutional values creates the danger of the constitutional state floundering in the waters of the social state. 
 Section 1, being the foundational provision, is not unamendable, but it is very tightly entrenched. The most profound values of the Constitution are set out in this compact formulation. The question is inevitably raised whether, where values have to compete for precedence in concrete circumstances, a hierarchy of values must be construed. An analysis of section 1 in the context of other relevant provisions of the Constitution reveals that human dignity is the primary nuclear value of the
 Constitution, supported by equality and freedom. Democracy, supremacy of the
 Constitution and the rule of law are structural and procedural values of the Constitution subordinate to the nuclear values and non-racialism and non-sexism are derived values. 
 How it is possible for a constitution to be superior law, as section 2 provides regarding the 1996 Constitution, is analysed against the background of the social contract theory. The weaknesses of this theory are exposed and it is argued that the force external to the Constitution that guarantees its primacy, is its practical legitimacy, i.e. sufficient support or acceptance of the authority of the Constitution by the citizenry. Section 2 is phrased in strong terms and means that no juridically relevant conduct, be it of a private or public law nature, can escape the test of constitutionality. 
 In the interpretation of section 3 the nature of citizenship and nationality is analysed with reference to international authorities and definitions of these concepts are developed. The legal implications of citizenship in the context of the Constitution are set out and the historical context of citizenship having been used in pre-constitutional times as an instrument for creating separate ethnic states, is described. The current post modern tendency in places to devalue citizenship is contrasted with the importance being attached to the notion in South Africa in the context of nation building and the employment of expatriates. 
 Regarding sections 4 and 5 the formal regulation of the national anthem and national flag is described. The national anthem may be amended by presidential proclamation, but changes to the national flag require an amendment of the Constitution. 
 Section 6, which deals with the complex language matter, protects linguistic diversity rather than the status of any languages. The Constitutional Court has determined that, although no express provision to this effect exists, individuals are entitled to use the language of their choice in their dealings and communications with the government. The state is required to promote "the indigenous languages of our people." This is interpreted to include the nine official indigenous African languages, Afrikaans, Khoi, Nama and San. In the determination of language policies Municipal Councils are required to take the language usage and preferences of the inhabitants into account and in the national and provincial at least two official languages must be used. Essential facts regarding language usage, demographic distribution, etc. must be taken into consideration for the determination of a language policy to conform to the Constitution.

Contracting Out of the Provision of Welfare Services to Private Actors and Liability Issues

AbstractThe article discusses liability issues related to the contracting out of welfare services. It focuses on the possible liability of the private actor and of the public entity towards the individual (the citizen) for non-performance or mal-performance of the welfare service. It is argued that since there is no contract between the individual and the private service provider there may be several obstacles to a claim against the private service provider based on contract. At the same time it is a general tort law principle that there is no vicarious liability for independent contractors, making it difficult also to succeed with a claim against the public entity based on tort law. Thus, a liability gap seems to exist. However, the article demonstrates that there are signs in different jurisdictions that solutions are being found in case law to this problem allowing to some extent for the imposition of some kind of vicarious liability on the public entity. Four different models are identified. The reasoning behind these models varies but they all have in common that the public law nature of the service that has been outsourced somehow plays a role.

ПУБЛІЧНЕ АДМІНІСТРУВАННЯ ЯК ОРГАНІЗАЦІЙНОПРАВОВИЙ ЗАСІБ ОХОРОНИ МАЙНОВИХ ПРАВ

The article explores the idea that public administration can act as an independent means of protection of civil rights, complementing such tools as civil law types of protection of rights, which consist in proving the legality of possession of the property itself. Protection of property rights is traditionally considered a field of private law, built on the principles of respect for private property, equality of arms, independence of the court and a fair settlement of legal disputes. It is stated that, unlike civil law methods of protection of rights, public administration as a method of protection of rights is aimed not at protecting the issue of legality of possession but at protecting the registration record from wrongful distortion. A large array of rules on the protection of private property is of a public law nature and is associated with the administration of relevant records. It is argued that from the point of view of protection of property rights, in particular property rights to real estate and their derivatives - the rights of the mortgagee, rights of claim, which are notarized, etc., the activities of state bodies are an organizational means of protecting such rights in the form of public administration. Publicity means that any decisions regarding changes in registered rights are made in public and, in accordance with the procedures provided by law, become public property, including stakeholders and an indefinite number of entities. It is determined that the essence of administration is that rights are protected on a procedural basis and the need for certain legal preconditions for making a management decision on changes in registered rights cannot be replaced by other legal preconditions, or a decision cannot be made without sufficient legal grounds.

Наука международного частного права: Генрих фон Кокцейн

The target of this article is to evaluate the theory of Private International Law developed by the German scholar Heinrich von Cocceji in 17th century. The contribution of this scholar to development of PIL doctrine has not yet been studied in Russian literature. The article analyses the Cocceji’s thesis, where he examines the question of conflicts of different national laws and of an applicable law’s determination. To consider these issues, the German scholar uses the methodology of his French and Dutch predecessors — the supporters of the theory of statutes, and thus he argues in line with this theory. The basic difference of Cocceji’s theory from classical theory of statutes is the starting point of his reasoning — he does not attempt to distinguish legal provisions and their scope, and sets the specific connecting factors. This is a very important difference, that explicitly anticipates the approach of the modern legislator to design the choice-of law-rules. In addition, he constructs a separate “action statute”, including not only questions of a form of an act, but also leading to generating of abstract connecting factor for determining the law applicable to the general concept of action. The conclusion of the article is that it is reputed that the main Cocceji’s contribution to the development of the PIL doctrine can be consideration of his assertion that the choice-of lawrules have nature of public law and the basis for solving conflicts of laws is international law — “international consensus of nations”.

Whose Rules are we playing by?

This intervention examines the recent case of Flaherty v National Greyhound Racing Club [2005] EWCA Civ 1117 and the ongoing debates over the public law versus private law nature of sports governing bodies’ decision making processes. In particular, it focuses on the economic impact of such decisions and the different approaches to sporting self-regulation of the European and UK courts.

Publicznoprawny charakter roszczeń odszkodowawczych za wywłaszczenie nieruchomości

Kwestia zakwalifikowania roszczenia do ustalenia odszkodowania za wywłaszczenie nieruchomości do sfery publiczno- lub prywatnoprawnej na gruncie prawa polskiego budziła wątpliwości doktryny już w okresie międzywojennym i pozostała nierozwikłana jednoznacznie do dziś. Jest ona szczególnie istotna z punktu widzenia przedawnienia przedmiotowego roszczenia odszkodowawczego. Na gruncie prawa administracyjnego bowiem, w przeciwieństwie do roszczeń o charakterze cywilnoprawnym, roszczenia co do zasady nie ulegają przedawnieniu, chyba że ustawa stanowi inaczej.W niniejszym artykule autor poddaje analizie przykładowe akty prawne, będące podstawą do przeprowadzenia procedury wywłaszczania nieruchomości oraz ewentualnych roszczeń odszkodowawczych, począwszy od rozporządzenia Prawo o postępowaniu wywłaszczeniowem z 1934 r., przez powojenne dekrety i ich nowelizacje, na obecnie obowiązującej ustawie o gospodarce nieruchomościami skończywszy. Jednocześnie w oparciu o orzecznictwo sądów powszechnych i administracyjnych oraz wypowiedzi wybitnych przedstawicieli doktryny autor podejmuje próbę uzasadnienia swojego stanowiska w zakresie publicznoprawnego charakteru roszczeń odszkodowawczych za wywłaszczenie nieruchomości.

The Expropriation of the Property of Foreign Investors in Private International Law

The measures for are closely linked to the right of ownership of foreign investors, as well as providing guarantees of ownership rights to foreign investors, in some cases, there may be cases of seizure of their property and, therefore, foreign investors are in need of appropriate legal guarantees. The of the property of foreign persons is, on the one hand, the nature of public law and is, therefore, subject to regulation of public international law; on the other hand, the is also the institute of private international law, since the affects the rights of foreign natural and legal persons in the sphere of their private property. It should be noted that along with the concept of in legal doctrine, national legislation and international agreements, there is also a concept of nationalization. The Civil Code of the Russian Federation contains general provisions on and, thus, refers to a special law on governing the procedure for the of property, which has not yet been adopted. In this regard, it can be argued that, at present, in the legislation of the Russian Federation there is no procedure regulating in detail the of property, including foreign investors. In accordance with the doctrinal definitions of expropriation and nationalization, as well as on the basis of a literal interpretation of the definitions contained in multilateral agreements and bilateral agreements on promotion and mutual protection of investments, it can be concluded that expropriation and nationalization at the present stage of development of international investment relations is referred to as expropriation because, as a rule, international agreements do not distinguish between the concept of expropriation and nationalization and unite them under the common term is expropriation.