Territorial Scope Research Articles

Choice of Law as Extraterritoriality

This contribution to RESOLVING CONFLICTS ON THE LAW: ESSAYS IN HONOUR OF LEA BRILMAYER (published under the title Choice of Law as Geographic Scope Limitation) argues that the choice-of-law question commonly addressed by state and foreign courts is conceptually identical to the question addressed by federal courts in determining whether a federal statute applies to a dispute having foreign elements. The latter question is clearly understood today to relate to the statute’s territorial scope. State courts have long conceptualized the choice-of-law question in the same way. Faced with a state statute addressing the issue before it and phrased in all-encompassing terms, the courts assume that the legislature did not intend to legislate for the whole world. They assume that the legislature enacted the statute with the purely domestic case in mind, with the understanding that cases with foreign elements will be addressed through the application of prevailing choice-of-law rules. A state’s choice-of-law rules thus operate as background principles of interpretation to determine the territorial reach of state law, just as federal extraterritoriality doctrine operates as a background principle of interpretation for federal statutes. Although this understanding of choice-of-law rules has a long pedigree, it has not been universally embraced. In particular, influential scholars have developed a two-step theory of choice of law, under which only the principles that courts apply at the first step address the law’s territorial scope. If these first-step rules yield the conclusion that more than one state’s laws extend to the case at hand, the courts resolve this conflict at the second step by applying “rules of priority.” The latter rules, according to the two-step theorists, do not address the law’s reach; rather, they empower the courts under specified circumstances to decline to apply the forum’s concededly applicable law in favor of another state’s law. The distinction is important for two-step theorists, as they maintain that other states are required to give effect to step-one rules that render the state’s law inapplicable to the case at hand, but are under no obligation to give effect to a state’s step-two rules, even if they would lead the courts of that state not to apply the state’s law to the case at hand. This essay questions the claim that step-one rules operate as limitations on a law’s territorial but step-two rules do not. Either both operate as territorial scope limitations or neither does. The essay goes on to agree with the two-step theorists that step-two rules are not binding on the courts of other states, while disagreeing with their contention that step-one rules are binding on other states. The final section considers whether the conclusion that neither category of choice-of-law rules is binding on other states means that choice-of-law rules do not in fact operate as limitations on a law’s territorial scope, and offers two alternative conceptualizations of choice-of-law rules that would explain the freedom of sister states to disregard them.

Google LLC v. Commission Nationale de l’informatique et des Libertés (CNIL)

In Google LLC v. CNIL, the Court of Justice of the European Union (CJEU or Court) held that the EU law only requires valid “right to be forgotten” “de-referencing” requests to be carried out by a search engine operator on search engine versions accessible in EU Member States, as opposed to all versions of its search engine worldwide. The ruling has been perceived as a “win” for Google and other interveners, such as Microsoft and the Wikimedia Foundation, who argued against worldwide de-referencing; while the Court has been praised for its restraint in finding that the current EU law on the “right to be forgotten” only applies within the EU. However, the CJEU went further and recognized the EU Parliament’s ability to extend the GDPR to apply extraterritorially and Member States’ ability to apply national de-referencing laws beyond their borders. Moreover, the CJEU appears to have reached these conclusions at the expense of the GDPR’s aims to harmonize the data protection framework across the EU. The decision allows Member States to decide individually the territorial scope of de-referencing obligations, thus creating the potential for different results based on where the requester resides. By creating the potential for national data protection authorities to apply stronger protections than those afforded by the GDPR, this decision could be seen as another brick in the “data privacy wall” which the CJEU has built to protect EU citizens. This note thus argues that Google LLC v. CNIL’s significance can only be understood by situating it in the broader context of CJEU’s recent data privacy decisions, which reveals the continued forcefulness of the CJEU’s stance on data protection after Snowden and Cambridge Analytica scandal.

To What Extent Does the EU General Data Protection Regulation (GDPR) Apply to Citizen Scientist-Led Health Research with Mobile Devices?

In this article, we consider the possible application of the European General Data Protection Regulation (GDPR) to "citizen scientist"-led health research with mobile devices. We argue that the GDPR likely does cover this activity, depending on the specific context and the territorial scope. Remaining open questions that result from our analysis lead us to call for lex specialis that would provide greater clarity and certainty regarding the processing of health data by for research purposes, including these non-traditional researchers.

Георгий Михайлович Лаппо (1923–2020): вехи биографии и научное наследие

The article is dedicated to the memory of the great Russian scientist, maitre of the urban studies Prof. G.M. Lappo (1923–2020). He made a huge contribution to the settlement pattern studies, Russian urban geography, and human geography, in general. Stages of the scientific biography of Prof. G. Lappo are analyzed and compared. The list of main publications for the entire period of his scientific research (since 1956 until 2019) is compiled. Territorial scope and major fields of the Prof. G. Lappo’s research are highlighted for various periods of his scientific activity. In the publication, special attention is paid to the Prof. Lappo’s books (scientific monographs) and their significance for the Soviet and Russian urban studies. The particular importance for the Russian human geography of the “settlement pattern framework” concept developed by Prof. G. Lappo is stressed.

Research into the importance of small seaport nautical infrastructure in the development of the local economy

Research into the importance of small seaports in the development of the local economy is extremely rare. This applies equally to the assessment of port infrastructure. Considering the research deficiencies, the decision was made for this paper to assess the importance of nautical infrastructure to port operators and the local economy. The territorial scope of the research covers seven small ports where the vast majority of national maritime sailing is concentrated. The importance of nautical infrastructure to port operators was assessed based on a cost-benefit approach. However, in the case of the local economy, the benefits of the expansion of the nautical infrastructure were determined based on the sailors’ spending, accounting for cash flows and multiplier effects. The study was based on available statistical data and the results of surveys and interviews. The studies carried out showed a negative return on nautical investments for port operators. However, nautical facilities generate net benefits to the local economy. The importance of nautical investments for port municipalities requires further research, especially into cash flows and the indirect and induced effects.

Budowa administracji skarbowej w pierwszych latach Polski międzywojennej

The purpose of this article is to present the process of building fiscal administration in the first years of interwar Poland, which ended with the adoption and gradual extension of the territorial scope of the binding law of July 31, 1919, on the temporary organization of tax authorities and offices. It replaced the post-partition solutions, which were initially subject to temporary changes. Considerations concerning the organization and scope of activities of the fiscal administration are complemented by comments illustrating the efforts of the Ministry of the Treasury to employ and train tax officials and candidates for tax services. The stated comments and observations were made on the basis of an analysis of legal acts, sources allowing to reconstruct the course of legislative processes (The Lower House of Polish Parliament [Sejm] documents and stenographic reports from the Lower House [Sejm] sessions) and literature. They confirm that the Act of July 31, 1919, adopted a structure based on the following principles: 1/ separation of fiscal authorities and offices from general administration, 2/ three-stage system of fiscal authorities (Ministry of the Treasury, tax chambers, tax offices), 3/ equal treatment of administration of direct and indirect taxes, as evidenced by their organizational unification in tax chambers, while maintaining the separation only in the authorities of the first instance (tax and fiscal offices; excise and state monopoly offices). The adopted fiscal administration system met the increasing role of direct taxes, which required the building of institutions for efficient calculation and collection of those taxes. However, the management of customs was separated from the competence of the tax chambers.

Problems of the organization and activities of bodies of the Soviet justice in the national regions of the north of the Tyumen Region Tobol District in 1920-1927

This article reveals the history of the formation of the early Soviet justice authorities in the northern regions of Western Siberia and the Urals in the 1920s using archival materials. The activities of the first judges, investigators, bailiffs, and prosecutors show the state policy in introducing the principles of Soviet law in an isolated region of Russia. This paper explains the role of the Soviet justice authorities in strengthening the new government in the isolated regions of the RSFSR. The information provided expands our knowledge about the process of establishing the law enforcement system in Russia. The purpose of the article is to identify the specifics of the activities of the Soviet justice authorities in the conditions of the North of Russia in the 1920s. Native justice authorities are not the subject of research in this article. The sources of the research include the documents of the bolshevik, Soviet, and law enforcement agencies stored in the archives of Tyumen, Tobolsk, Yekaterinburg, Omsk, Khanty-Mansiysk, and Surgut. This article has used the system-structural and the comparative analysis methods. The territorial scope of the study includes two northern districts of the Tyumen Region and five northern areas of the Tobolsk District of the Ural region. The chronological framework is defined by the period in 1920-1927. The first date is the moment of the creation of the first Soviet judicial bodies in the Tyumen province. The second date is related to the beginning of the Cultural Revolution and the transfer of managerial powers to the district courts. This moment starts the rejection of the model of Soviet justice created in 1922. This study has revealed the inability of the Soviet state to establish a permanent system of repressive organs in the north of the Urals. The management structure, territorial structure, and staff changed with kaleidoscopic speed. Young communists, mobilized to serve in courts and as prosecutors, tried to pursue the Bolshevik policy. Yet the outrageous illiteracy and severe climatic conditions forced them to leave the North, and the party bodies could not stop this process.

Subjective and Territorial Scope of confugium ad ecclesias, and Christian Ideas

Beginnings of asylum (asylum, ius asyli, confugium) in ancient Rome dates back to Romulus times. In subsequent periods of the development of the Roman state, the right of asylum was further developed and included in the norms of material and legal nature. In the Republic Period there were no comprehensive legal regulations regarding ius asyli, although temple asylum was known. It was only during the empire that legal regulation of asylum was in place and two of its forms were developed, confugium ad statuum (asylum, escape to the monument to the emperor) and confugium ad ecclesias (church asylum). That study focuses on answering the question of whether Christian ideas had an impact on the subjective and territorial scope confugium ad ecclesias. After the Edict of Milan in the year 313, Christianity, being able to worship publicly, began to influence the consciousness of the inhabitants of the empire. The Church was conceived as an institution protecting the weak, persecuted and those in need. The right of asylum was also enriched with some Christian elements, especially mercy (misericordia), in relation to individuals entitled to benefit from asylum protection. The territorial extent is also expanded to include places belonging to temples, such as the bishop’s house, cemetery and monasteries. An important novelty was the validity of confugium ad ecclesias in every Christian temple because it was not the emperor’s decision that was in force of ius asylum and the sanctity of the place. However, imperial constitutions played a more important role in shaping the right of asylum in the 4th and 5th centuries than the synodal legislation.

SCOPE OF THE APPLICATION OF INTERNATIONAL HUMANITARIAN LAW (IHL) IN SITUATIONS OF NON-INTERNATIONAL ARMED CONFLICTS: EXTENDED APPLICABILITY OF COMMON ARTICLE.3

The applicability of International Humanitarian Law (IHL) in non-international conflicts is a complex phenomenon due to the undefined and unannounced nature of non-international armed conflicts. International Humanitarian Law extends its applicability to the armed conflicts of non-international nature between state and non-state armed groups or between non-state armed groups. Common article.3 to the Geneva Conventions of 1949, and 1977 Additional Protocol II to the Geneva Conventions, provide criteria for the applicability of IHL However, the states are often seen reluctant to accept international legal oversight into their internal matters and this phenomenon of violence often need to be identified and defined. This paper investigates the scope of the application of International Humanitarian Law in situations of non-international armed conflicts, mainly focussing on the extended applicability of common article.3 to the Geneva Conventions 1949, in situation of non-international armed conflicts. Various types and nature of armed conflicts, the applicability of International Humanitarian Law to non-international conflicts are discussed with special reference to the scope and applicability of Common Article.3 to the Geneva Conventions of 1949. Moreover, the binding force and territorial scope of common article.3 are discussed in a broader context as to assess the applicability of International Humanitarian Law on the changing nature of the non-international armed conflicts.

The Labor Law Issues in the Treaties of Friendship and Cooperation Made by Poland with the Western European Countries after 1989

The Labor Law issues constitute a subject of the numerous bilateral and multilateral treaties. They have an important role in the system of Labor the Law sources. In regard to the bilateral treaties, Treaties of Friendship and Cooperation (so called political treaties) play significant role, not only because they reflect the priorities of one state’s foreign policy through definition of its territorial scope of interest, but also they indicate the areas of the particular interests of the parties. Poland, after the transformations of 1989–1990, entered into this type of treaties with the former socialist republics of the Central and Southern Europe established after the USSR dissolution, and – what constituted a novelty in Polish treaty policy – with the Western European states (France, Spain, Germany and Italy), and also with the countries included in this group for the political, not geographical reason: Greece and Turkey. Analysis of these treaties shows that the most of the labor references were used in the political treaty with a neighboring state, Germany. What is more, this field of cooperation was given its adequate rank and significance. Favorable solutions have been included in the treaties with Greece, Spain and Italy. The least consideration for the labor issues was given in the treaty with Turkey, as it includes only one provision, similar to the treaties with the other states, that deals with supporting the direct contacts among the trade unions.

Ethical codes in adult education as subjects of comparative analysis

In the process of professionalisation of adult educators, a significant role is played by qualification, educational and evaluation standards. However, they do not often deal with ethical questions which can arise from their relationship with participants of the educational process, from their membership in professional associations or from the relationship with an educational institution. This gap is filled by ethical codes, which are not legal standards but they are adult educators’ voluntary obligations. The importance of codes was a reason for the comparison of 26 ethical codes aiming to find their common features and non-standard regulations, to point out the prevailing structures and contents and disciplinary measures when the code is violated. The contribution of this study is to enrich the andragogical theory with a deeper understanding of the purpose of ethical codes, their structural elements and content. From the point of view of education policy, an analysis of codes can work as a specific monitoring of the market of educational services. It can serve for designing certification courses of adult educators as well as subjects in graduate studies in andragogy. The limitation of this study lies in the fact that the selection of codes was limited to codes written in four languages; however, one of them was English, which is a world language. As for the territorial scope, codes cover North America, Europe, Australia and New Zealand.

The Public Power of Private Property in Canadian Jurisprudence on Aboriginal Title

it is easy to see the decision of the Supreme Court of Canada Tsilhqot’in as an attempt to confer the financial benefits of title without recognizing jurisdiction to territory. We question whether the Court has a grander agenda to empower First Nations in its formulation of property. The clarity of the court regarding the beneficial interest in land, the scope of territory to be included, the commonality of holding, and the right to decide on its uses are key themes that could indicate this intention. Taken together with its overall trend towards conceptualizing reconciliation through consultation that ensures compensation, these characteristics authorize titleholders to directly exclude non-consensual users and indirectly impose a cost on government infringement so high as to be prohibitive. While private property ownership certainly does not reflect the territorial nature of Aboriginal title, it is pertinent to ask if the decision aims to politically empower Indigenous peoples as collectives by recognizing their private control over vast tracts of lands?

Aportes y desafíos del Sistema de Evaluación de Impacto Ambiental (SEIA) a la conservación de la biodiversidad en Chile

Los Sistemas de Evaluación de Impacto Ambiental son instrumentos de gestión ambiental de carácter preventivo, cuyo principal objetivo es incorporar consideraciones ambientales en los procesos y actividades que acompañan el crecimiento económico de un país. Su influencia en la conservación de la biodiversidad es fundamental, ya que, dentro del proceso de evaluación, permiten identificar y evaluar impactos ambientales potenciales asociados a estas actividades, y definir reparaciones, compensaciones, o mitigaciones. Detener la pérdida de biodiversidad, provocada por actividades humanas y el cambio climático, es un objetivo de carácter mundial. Chile no está ajeno a este desafío, considerando su condición de Hotspot de biodiversidad, las proyecciones asociadas al cambio climático que afectarán el territorio, y los pendientes que el Sistema de Evaluación de Impacto Ambiental (SEIA) presenta respecto de conservación de la biodiversidad desde una mirada más estratégica al considerar cuestiones como el alcance territorial de los impactos ambientales generados por los proyectos, bajo una mirada sistémica y transversal con otras materias. Al respecto, la investigación presenta un análisis de las principales modificaciones experimentadas desde de su creación, comparándolo con otros sistemas de evaluación en Latinoamérica; junto a estadísticas nacionales del comportamiento de los proyectos de inversión que afectan potencialmente la conservación de la biodiversidad. Se abordan dos cuestionamientos que guían la discusión de funcionamiento y cambios que debiese impulsar el Estado chileno: 1) influencia sobre titulares de proyectos para que internalicen la importancia de proteger la biodiversidad más allá de lo normativo, y; 2) introducción de otras mejoras en la ley ambiental que podrían propiciar de manera indirecta mejoras en el SEIA. Finalmente, se concluye sobre la importancia de potenciar la Evaluación Ambiental Estratégica (EAE) y su integración con el SEIA, impulsando una mejora en los diseños de proyectos mediante la incorporación de la sustentabilidad desde su formulación.

Cartographic image of “wandering streets and their names” in Lublin (in the 20th and 21st century) – verification of a research method

Abstract The authors’ main goal is to highlight the additional research potential of the method of analysing changes in the routes and names of streets introduced by Paweł E. Weszpiński in 2012. The proposed method was based on the old city maps of Warsaw and, according to Weszpiński, described “wandering streets and their names”. Taking the changing routes and names of streets on Lublin city maps from the last century as the research subject, the authors demonstrate that the method can be used to analyse how urban spaces are perceived and how they function in the minds of local residents. The authors propose to modify the method by adding one more important factor – the function of the place or street affected by the “wandering”. They claim that the study of changes in streets’ topography, territorial scope and names should be supplemented each time with an analysis of the administrative, economic or social significance of the place.

Financiamento da política de assistência social: avanços e perspectivas

Esse artigo objetiva fazer um panorama do financiamento da política de assistência social, apresentando as mudanças normativas, o aporte orçamentário e as perspectivas. Como metodologia, acessou-se o levantamento da produção normativa do órgão gestor da política, que pode ser solicitado aos autores, e a análise descritiva dos dados extraídos do Painel de Orçamento Federal, do atual Ministério da Economia1, que são oriundos do Sistema Integrado de Administração Financeira do Governo Federal (SIAFI), sistema que realiza toda a execução orçamentária e financeira do governo federal. Os resultados apontam para mudanças, com base nas orientações da Política Nacional de Assistência Social (PNAS) e da Norma Operacional Básica (NOBs/SUAS), que propiciaram um novo padrão de financiamento, com adensamento da institucionalidade, maior abrangência territorial e populacional e ampliação do escopo protetivo da política. O trajeto orçamentário foi ascendente, saindo de um patamar de 0,9% do Produto Interno Bruto (PIB), em 2006, para 1,3%, em 2018. As perspectivas, porém, não são nada animadoras, tendo em vista o cenário de congelamento, em termos reais, da despesa primária da União e um fortalecimento da concepção de assistência social como caridade e benemerência. Palavras

MODELING OF THE EFFECTIVE FUNCTIONING OF THE AGRICULTURAL LANDS MARKET IN UKRAINE

The article deals with the main problems of creating the agricultural lands market in Ukraine due to the absence of the normative and legal support of its circulation, which should define the set of rights and restrictions of the implementation of this process. It is determined that the agricultural lands market is a social and economic complex that functions in accordance with market laws, national specificity, territorial scope and consists of a set of enterprises, establishments and representative offices, which are directly related to turnover of agricultural lands market. The main prerequisites for formation of effective functioning of the agricultural lands market are substantiated. Structural and logical scheme of this process implementation is constructed. Despite the ban on the purchase and sale of agricultural lands, the market value of land for private peasant farming has been calculated according to an expert assessment of a comparative methodological approach in determining the degree of similarity of objects using the Euclidean distance. The proposed method is appropriate to use in determining the market land value, regardless of its target use, by the degree of similarity of the objects of comparison according to the area, location, physical characteristics, functional characteristics and the availability of improvements, which allows to take into account its quantitative and qualitative characteristics.

EU: Territorial Scope of De-Referencing Search Engine Results Based on “Right to Be Forgotten”

EU: Territorial Scope of De-Referencing Search Engine Results Based on “Right to Be Forgotten”

A Study on the Extraterritorial Application of the General Data Protection Regulation with a Focus on Computing

A Study on the Extraterritorial Application of the General Data Protection Regulation with a Focus on Computing

EU Contractual Protection of Creators: Blind Spots and Shortcomings

EU Contractual Protection of Creators: Blind Spots and Shortcomings

An Analysis of EDPB’s Opinion on the Competence of a Supervisory Authority in Case of a Change in Circumstances Relating to the Main or Single Establishment

Discussing the usefulness of an Advocate General’s Opinion, former Advocate General Wahl made the point that: “The clarity and the strength of the argumentation for the proposed solution is what elevate it from a mere opinion to an Advocate General’s Opinion.” This is an important observation, and an observation with applicability extending also to the Opinions issued by the European Data Protection Board (EDPB). On 9 July 2019, the EDPB adopted its Opinion 8/2019 on the competence of a supervisory authority in case of a change in circumstances relating to the main or single establishment. The Opinion was issued in response to requests by the Swedish and French Data Protection Authorities. Having found the EDPB’s Guidelines 3/2018 on the territorial scope of the GDPR (Article 3) to be largely a disappointment, I was hoping to see clearer guidance provided in the most recent EDPB publication dealing with jurisdictional issues. Unfortunately, the EDPB’s Opinion of 9 July 2019 leaves much to be desired. Its reasoning is unconvincing and its conclusion troubling.