Principles Of Public Law Research Articles

Public International Law and Tax Law: A Fair and Equitable Nexus in International Taxation

This article, inspired by the authors’ participation in the research of the Tax Committee of the International Law Association, calls into question the appropriateness of the traditional definition of “tax nexus” and stresses the need to reconcile the existing rules with the principles of international law. It outlines possible avenues for establishing workable, fair and common criteria and rules for the definition of “tax nexus” that operate globally. The article focuses on the existing rules on international tax nexus, inter alia, residence and source, taking into account the principles of public international law, such as those related to tax sovereignty. It proposes the development of a new fair and equitable tax nexus to address the challenges of the globalized modern world, which can potentially draw from the practice in other areas of law, such as competition law. In such a global context, the goal is to verify whether and in which cases multiple criteria for nexus can be replaced with a single nexus based on the concept of the closest connection to a single jurisdiction.

A common law in space for public health

Beyond the gravitational pull of Earth, space travel poses substantial public health hazards pertaining to the physical and mental well-being of astronauts and passengers, in addition to a possible threat to the populace of Earth upon re-entry. Exposure to cosmic radiation, cranial pressure from microgravity, weakened immunity to contagion, and the potential for depression and psychosis are all risks. Public health crises of this nature are to be expected as the duration of missions extends, as is the case with Mars settlement. In contrast to national space programmes, which have regarded these obstacles as human factors effecting the mission, public health law in common law British nations approaches them from the perspective of social justice and the preservation of human life and societal welfare. Countries including Australia, Canada, the United States, and the United Kingdom continue to apply traditional common law principles of public health law, which provide a sensible and enduring method for reconciling competing public and private interests. Common law permits the violation of civil liberties through the use of force in public health restraint, forced medication, and quarantine, but only if necessary, reasonable, and equitable. While the understanding of the health challenges associated with long-duration spaceflight may be in its infancy for national space programmes and civilian space ventures, the application of common law public health principles could aid in the establishment of health and safety protocols in which human reactions to crises in space resemble those observed on Earth. This may, nevertheless, necessitate the enactment of a more comprehensive federal public health statute. Embedded in both public health common law and international space law, the pre-eminence of preserving and respecting human life and well-being continues to be a cornerstone of humane justice despite the perilous conditions of space.

Romanian Diplomacy during the Balcan Wars (1912-1913)

The young national Romanian state would reaffirm itself in the first decades of the 20th century as a factor of equilibrium and of collective security in the Balkan Peninsula, in the context of the two wars which were about to begin (1912;1913), both conflicts which would precede the greatest diplomatic and military conflict known to international society until that time, namely the First World War (1914-1918). Romania acted in accordance with the principles of public international law regarding its external policy to maintain its sovereignty, independence and territorial integrity of state built from the ruins of the former Ottoman Empire, thus acting for the respect of the status quo in the Balkan area according to the regulations of international treaties, seen as formal sources of law.

La personnalité juridique de l’État

The conceptualization of the State as an entity endowed with legal personality has played a central role in the development of French and German public law, and is also one of the fundamental principles of public international law. The first theories viewing the State as a legal person emerged in the mid-19th century, and were still widely discussed at the beginning of the following century. Curiously, however, Swiss scholars were not as enthusiastic about the matter than their foreign counterparts. In Switzerland, while it is traditionally accepted that the State, the cantons and the municipalities are legal entities, neither the dogmatic basis for this personality, nor its material scope, are really clear. The present contribution examines this apparent shortfall, drawing on the various theories of the person-state developed in France and Germany, and on the concept of legal personality under public law, to examine the legal position of the state in Swiss law. It concludes that the State is a legal person governed by public law by virtue of customary law. It is argued, however, that the distinction between legal personnality under public-law and legal personality under private law must be relativized with regard to their material content. Thus, the legal personality of the State is not intrinsically different in scope from the legal personality enjoyed by private persons. In Swiss law, the personification of the State does not explain what makes it a distinct legal phenomenon, nor does it constitute a conceptual necessity. On the contrary, it is a pragmatic response to the need to make the State a center for the imputation of rights and obligations.

The Relationship between Private and Public Law Principles in Energy Legislation

The paper examines the problems of the relationship between private law and public law principles in energy legislation. Based on an analysis of the historical development of Russian and foreign energy legislation, it is concluded that, at its core, energy law is private law. The features of the subject and method of energy law are analyzed, and the criteria for identifying the subject of energy law are outlined. In order to determine the essence of energy law, the author proposes a concept of areas of law, which include energy law. The paper examines the features of organizational and regulatory structures (institutions) in energy legislation, which are the most important structural elements of energy law. Examples of the mutual influence of norms and institutions of private and public law in the energy sector are considered, and the specifics of the functions and objectives of contractual regulation in the energy sector are indicated. The key practical problems of the energy sector are identified, the scientific study of which is a priority for legal science in this area.

ON THE ISSUE OF PRIVATE AND PUBLIC LAW: A NEW MANIFESTATION OF OLD PROBLEMS

The paper raises the question of the practical significance of the division of law into private and public, analyzes the ratio of public and private interests; conclusions are drawn about the inadmissibility of integrating public law principles into private relations, even if one of the parties in these relations is the state.

The Relationship Between Public Policy in the Domain of Public Economic Law Policy

The objective of this research was to analyze the relationship between public policy in the domain of public economic law policy. The primary policymakers in the field of public economics, in light of ethical schools of thought, aim to distinguish between the current state and desired goals. They strive to bridge the gap between what is and what should be by utilizing various tools. On the other hand, the successful implementation of these processes depends on the continuous evaluation of all components of these two main and significant factors, which is typically carried out based on various elements such as the governing principles of public law and economic policy. Muslim jurists generally extract these principles by referring to numerous Quranic verses and Hadiths or by utilizing different jurisprudential approaches. In addition to these legal discussions, various economic schools have also structured their systems of policy evaluation using their own targeted and diverse criteria regarding moral valuation. The findings indicate that choosing any of the approaches—deontology, virtue ethics, or ethical economics—has specific implications for evaluating the policies of different legal and economic schools. Muslim economists, as well, have proposed other methods, aside from normative ethical theories, to derive the governing principles of Islamic economic policies. They have adopted frameworks of Islamic economic value systems based on referencing Quranic verses, Hadiths, or employing jurisprudential approaches to extract these principles.

Legal Issues of Copyright Objects Processing by AI Systems in the Process of Machine Learning

The research paper analyses the legal aspects of copyright objects processing by AI systems, including the legality of automated analysis of text and data in digital form — TDM (text and data mining) and machine learning. The research paper examines: the grounds for qualifying such processing as copyright infringement and certain obstacles to the full protection of copyright (including Big Data, being a subject of processing by AI systems). The paper proposes the adoption of certain public law principles of copyright objects processing by artificial intelligent systems, in particular: the principle of limited purpose, according to which the processing of works should be carried out exclusively for the purposes established by the operator of the artificial intellectual system; the principle of limited storage, which involves storing personal data (in a form accessible to identify the subjects of this data) no longer than required in-order to achieve the stated processing purposes; the principle of transparent reporting — reporting on the quantity and quality of processed data sets, accessible to any person, regardless of interest.

კანონიერი ნდობის პრინციპი კანონიერების პრინციპის პირისპირ

Two important institutes of administrative law will be discussed in this paper, namely, the principle of legal reliance and the principle of legality, their origin, their place in the General Administrative Code of Georgia, their relation to the constitutional principles and to other principles of public law. The issue of conflict between these two principles takes significant part in the paper. The aim of the paper is to analyse the grounds for the principles of legal reliance and legality, the established caselaw related to them and to reveal significant challenges often faced by an administrative body, in the case of conflict between the mentioned principles. Herewith, the paper will present those problematic issues, which are related to the coexistence of the mentioned institutes, also, the ways for their solution and recommendations. Keywords: the principle of legal reliance, the principle of legality, protection of reliance of interested party, revocation of act, collision of principles, proportionate and fair decision, conflict of public and private interests.

The Right to Self-Determination of Peoples through Examples of Åland Islands and Quebec : Recommendations for a Peaceful International Legal Order

In contemporary public international law, it is increasingly common that in many countries of the world and Europe, political representatives of the peoples are calling for an inalienable right to the external self-determination of the peoples involving secession to try to achieve their independence and autonomy, forming their national states to the detriment of already existing countries in which they are currently living. However, this may cause destabilization and wars in many complex multiethnic states and the European Union. Therefore, the Aland Islands and Quebec cases are extremely important for today’s understanding of the exercise of the right to self-determination of the people in contemporary public international law, in particular as the International Court of Justice in The Hague and the domestic courts invoke them as precedents to address all future cases of reference to the right of the people to external self-determination involving secession. Based on those cases, it has developed that the issue of secession is the question of the internal legal order of each sovereign country, which should deal with this issue through its constitutional legal order, and contemporary public international law should deal with its consequences. In connection with this, it is necessary to investigate and offer answers that will highlight possible abuses of the right to self-determination of all peoples as a collective human right in contemporary public international law. Such unlawful conduct may result in adverse legal consequences, in particular, the violation of basic principles of public international law, including the principles of territoriality and sovereignty of the states, the distortion of world peace and order, economic progress, the rule of law and the pursuit of basic human rights and freedoms, as well as other collective human rights, which may ultimately be the cause of provocation and lead to international and civil wars.

The East African Court of Justice: Weaving Jurisprudential Pathways, 2012–20

A reading of the decisions of the East African Court of Justice delivered during its early years portrays an orientation towards the application of common law doctrines. This is not surprising given that the initial litigants, legal Counsel and Judges originated from countries with legal systems sourced from common law; and so, they relied on judicial precedents of national courts and the Court’s predecessor, the Court of Appeal for East Africa. For over a decade now, there’s been a shift as the Court has charted a jurisprudential path reflecting its international character. This paper considers some of the decisions of the Appellate Division which have espoused the primacy of public international law principles and legal instruments; and the inspiration drawn from the jurisprudence of other international and regional courts in interpreting and applying the East African Community Treaty. Over the years, the Court has continued to uphold deference for rule of law, jurisdictional, procedural and evidential standards in the administration of justice and applied the seldom used dissenting opinion mechanism where necessary.

Academician V.V. Laptev on the main component of Economic (Entrepreneurial) Law

In the article, the main, basic component of Economic (Entrepreneurial) Law, which is the main achievement of Academician V.V. Laptev, as an independent branch of law, branch of legal science, branch of legislation and academic discipline is defined as an organic combination of legal regulation of economic activity (entrepreneurial) and its management. In fact, it is an organic combination of private law and public law principles. Noting that the development of this industry, according to scientists, went through three stages during the Soviet period, called: “two-sector” theory (20s), a single pre-war theory (the second half of the 30s) and the post-war so-called “addressee” theory, the author believes that Entrepreneurial Law as well as the Economic Law of the market economy - this is the fourth stage, which is another significant scientific achievement of V.V. Laptev. The author has made 10 conclusions and makes appropriate proposals

КОНВЕРГЕНЦИЯ ЧАСТНОГО И ПУБЛИЧНОГО ПРАВА В СФЕРЕ УГОЛОВНОГО СУДОПРОИЗВОДСТВА

The subject of the article was the identification of the main directions and results of the convergence of private and criminal law in the field of criminal justice. The purpose of the article was to sum up the results of the development in domestic science of a set of views on the process of convergence of private and public law in the field of criminal justice. The main subject of the analysis was the conceptual apparatus, which reflected changes in ideas about the measure of private and public in the mechanism of criminal procedure regulation. The author of the article tried to overcome dogmatic obstacles to strengthen private law values in the domestic criminal procedural culture, including ideas about a contractual method for resolving issues related to the conduct and completion of a criminal case. The main dogmatic obstacle is the postulate about the dominance of the public law principle, interpreted in the investigative sense. The investigative ideology hinders the convergence of private and public law in domestic criminal procedure science. The main areas of application of the author's developments are seen as «evidence law» and «law of accusation», as the backbone institutions of Russian criminal procedure law. It is in them that the essence of the Russian type of criminal process is embodied. Changes in these institutions are significant in terms of the degree of penetration of the private principle into their public law nature. The author comes to the conclusion that the convergence of private and public law in the field of criminal proceedings manifested itself in a number of sub-institutions, including private and private-public types of prosecution, alternative outcomes of a criminal case on some nonrehabilitating grounds, a pre-trial agreement on cooperation, a special procedure for considering a criminal affairs. All these institutions stand on two «super-institutions» of procedural law: accusation and proof. To some extent, both of these institutions were affected by the convergence of private and public law in the field of criminal justice. The conclusions made by the author contribute to the development of the general doctrine of the convergence of private and public law in the field of criminal justice. He makes specific proposals for the modernization of the institutions of prosecution and proof in the light of the concepts of «contract».

Substantive Legitimate Expectations: The Journey So Far

The doctrine of substantive legitimate expectation is rooted in administrative law. Initiated in United Kingdom, it is originally intended to provide relief for claimants who suffered public wrong, but who may not have any legal claim procedurally or substantively under the main administrative or public law principles. Basically, by the principles in promissory estoppel, a public authority will not be allowed by rescind its promise if a suspecting member of society relies on such a promise to alter his position. This paper analyses the genesis of legitimate expectation in its both substantive and procedural forms in view of a number of cases decided by English courts.

The Meaning of Silence in Investment Treaties

Abstract The ambiguity of key terms in investment treaties, such as ‘investment’, ‘fair and equitable treatment’ and ‘fair market value’, has been subject to extensive analysis. Less attention has been paid to the silence of investment treaties on numerous issues that routinely arise in practice. This article argues that treaty silence has played a critical role in the development of international investment law. It shows that arbitrators frequently adopt a creative approach to silence resulting in expansive interpretations, and argues that this approach stands in tension with several fundamental principles of public international law. The article concludes by highlighting considerations drawn from its analysis for arbitrators, treaty drafters and the international legal order.

Принципы исполнительного производства: публично-правовой аспект

The article discusses the principles of enforcement proceedings as a public legal basis for enforcement in the activities of a bailiff. Along with the legal principles of enforcement proceedings enshrined in a special Federal law, such as legality, timeliness of enforcement actions and enforcement measures, respect for the honor and dignity of a citizen, the inviolability of the minimum property necessary for the existence of a debtor-citizen and his family members, the correlation of the volume of the recoverer’s claims and enforcement measures, the author proposes to fix in The principle of the protection of human rights, citizens, organizations in court and out of court, which would serve as a legal basis for the protection of legitimate expectations in enforcement proceedings, contributed to the reflection of law enforcement reality in Russia. The author also argues that enforcement proceedings should be considered both from the point of view of the importance and provision of public and private legal interests, concludes that it is a public legal means of ensuring law and order, determines the general patterns of operation of the principles of law in general and public law in particular. Taking into account the universal fundamental nature of the legal category under consideration, the principles of executive. The thesis on the importance and necessity of ensuring the basic public law principles of enforcement proceedings in the theory of law, legislation,in practice as an ideal model and purpose of the competent executive authority is proposed.

A jeles humanista gondolkodó és kodifikátor, Andrés Bello és a magánjogi (polgári jogi és kereskedelmi jogi) kodifikáció Chilében

The author of this article analyzes the process of codificaton of private law (civil law and commercial law) in the light of the thought of Andrés Bello (1781–1865), the humanist thinker and expert of codification in Chile. The intellectual background of Andrés Bello, born in Venezuela, comprised history, philosophy, linguistics, literature, mainly poetry, education as well as law. It also deserves to be mentioned that Bello was the first rector of the State University of Chile founded in 1842. According to the idea of Andrés Bello Roman law (ius Romanum or ius civile) constituted the background of legal education as well as the primary source of the codification of private law in Chile. The author of the study points out that Bello had no legal education. In the field of philosophy he was substantially influenced by the scholastic tradition. In his works he put special emphasis on morality in compliance with the plurisecular tradition deeply rooted in natural law (derecho natural). This article provides also an insight into the partial influence of the German Historical School of Law (Historische Rechtsschule) on the law related ideas of Andrés Bello. The author emphasizes the decisive influence of Johann Gottlieb Heineccius on Andrés Bello. Andrés Bello was regarded as a major authority regarding his principles of international public law both in Europe and in most countries of Latin America. He spent 19 years in the United Kingdom, in London. His work Principios de Derecho de Gentes, published in 1832 was with no doubt fundamental in particular as far as sovereignty of State was concerned. Andrés Bello was a committed advocate of the Solidaridad americana pointing out the specific features i.e. characteristics of the Spanish speaking states in America. In the field of the codification of private law (civil law and commercial law) in Chile the role of Andrés Bello was determinant. The first step towards codification was the consolidation of the law of the country. The process of consolidation ended in 1833 when the first constitution of Chile was promulgated and came into effect. During the second period, encompassing the period between 1834 and 1838, Andrés Bello took into consideration the French Civil Code, the Austrian General Civil Code and the Civil Code of canton Bern (Switzerland) prepared by Samuel Ludwig Schnell. During the third period (from 1838 through 1849) Andrés Bello contemplated the structure and the contents of the draft Civil Code of Chile. It has to be notes that on the territory of Chile several compilations, namely the Breviarium Alaricianum, the Fuero Juzgo, the Fuero Real, the Siete Partidas, as well as the Ordenamiento de Alcalá were implemented. Moreover, the Nueva Recopilación, promulgated in 1567, the Recopilación de las Leyes de las Indias, promulgated in 1680 as well as the Novísima Recopilación, promulgated in 1805 were in effect. The author of the article emphasizes that the Civil Code of Chile prepared by Andrés Bello influenced the codification of civil law in most countries of Latin America. Therefore, as the author puts it, Andrés Bello can be regarded as a ‘father of codification of civil law’ in Latin America. The Civil Code of Chile was completed in 1855 and promulgated by the National Congress in the following year. The Civil Code of Andrés Bello came into effect in 1857. The Code is still in effect, with minor amendments i.e. modifications. The Civil Code of Chile follows partly the French Civil Code. However, the Código de la República de Chile, albeit does not contain a General Part (parte general), differs from the French model regarding its structure. Compiling the Code, Andrés Bello took into consideration the Spanish legal dogmatics based mainly on Roman law traditions (acervo jurídico romano). He also availed himself of the doctrine developed by the representatives of the German Pandectist Legal Science with particular regard to the thoughts of Friedrich Carl von Savigny (1779–1861). Several legal institutions regulated in the text of the Civil Code of Chile testifies the influence of the works of Jean Domat (1625–1696), Robert-Joseph Pothier (1699–1772), Merlin, Favard de Langlande, Jean-Etienne-Marie Portalis ((1745–1807), Raymond Théodore Troplong, Pardessus and Carl Salomo Zachariae von Lingenthal (1769–1843). Andrés Bello took into consideration first of all the French Civil Code, the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB), the Louisiana Civil Code, the Prussian General Land Code (Allgememeines Landrecht) as well as the Dutch Civil Code (Burgerlijk Wetboek), promulgated in 1838. In the last part of his study the author emphasizes that the Civil Code of Chile does not contain a General Part (Parte General). The structure of the Civil Code of Chile is as follows: the Preliminary Title (Titulo preliminar), containing general dispositions, the Law of Persons, the Rights In Rem, The Law of Succession (Law of Inheritance) and the Law of Contractual Obligations.

Баланс частных и публичных интересов при правовом регулировании // Актуальные проблемы государства и права

Introduction: the events of the last few years provoke scientists and practitioners to constantly raise the problem of determining the balance of private and public interests necessary for effective legal regulation. On the one hand, we are talking about the spread of the coronavirus pandemic (COVID-19), a difficult foreign poli-cy environment that requires the active participation of the state, rigidity in legal regulation in order to ensure constitutionally enshrined provisions. On the other hand, the state course to development the digital economy, the rapid development of digital technologies, the qualitative transformation of social relations are entail the need for flexible legal regulation, greater consideration of the interests of economic entities. Goals and objec-tives of the study: consists in clarifying the main parameters for determining the balance of private and public interests, taking into account current trends in Russian society. Research methodology: dialectical, systemic, comparative legal, formal legal methods. It made possible to identify the parameters for determining the balance of private and public interests, to conduct a brief analysis of the current state of modern trends characteristic of Russian society and the state, and to determine the possible conditions for its further formation. Conclusions: the author's position is argued that the totality of public law and private law principles of legal regulation of a particular sphere of human life is expressed in amount of means, methods, forms, mechanisms and regimes of legal regulation, which are elected by the state, taking into account a number of factors. That is why the balance of interests is a mobile category, which is based on the principle of protecting the rights, freedoms and legitimate interests of a person and a citizen.

ЕКОНОМІЧНИЙ КОНСТИТУЦІОНАЛІЗМ: ПОСТАНОВКА ПРОБЛЕМИ

The article clarifies the essence of economic constitutionalism (constitutional economics) as an interdisciplinary doctrine. It is argued that economic constitutionalism (or constitutional economics) is the name of an interdisciplinary scientific field on the border of economics and constitutional law. In essence, economic constitutionalism is a special section of constitutionalism in general, which focuses on economics, property, the combination of private law and public law principles in the constitutional text, the theory of legitimate expectations, the economic nature of human rights and other constitutional legal objects regulation, ensuring de facto equality and establishing the limits of interference with economic freedom, financial and budgetary issues, the economic consequences of the concept of the welfare state and social human rights, etc. It is proved that economic constitutionalism is a promising interdisciplinary direction that integrates politics, constitutional law and economics. The importance of researching the economic nature of basic public and state constitutional institutions is beyond doubt. Similarly, the impact of relevant institutions, on the other hand, especially in the transition and transformation stages of development is enormous. The following main directions can be identified for further research on economic constitutionalism (constitutional economics), namely: consideration of law and the constitution as a manifestation of self-regulation; the role of property institutions, market economy, capitalism to ensure freedom; the need to ensure equality in order to implement rational choices, the interplay of democracy and social rights; the link between democratic transit and a market economy, exploring ways to grow and overcome poverty. The practice of interpretation of the constitution by the body of constitutional jurisdiction plays a significant role in economic constitutionalism. Analysis of the experience of the Ukrainian Constitutional Court in this aspect so far leads to the conclusion that its positions are inconsistent and, unfortunately, insufficient role in the constitutional economy (in terms of potential positive impact).

The Main Principles of French Public Law: A Comparative Reflection

This article will be divided into two parts. First, I will demonstrate the importance of comparative law and legal culture by highlighting the “great principles of French public law”. I will then explore some of these major principles, based on the French and German conceptions of law, justice, the State, and democracy.