Komparativ ret

Framework Decision 2009/948/JHA on the prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings established an ad hoc procedure for settling conflicts of criminal jurisdiction based on the mutual exchange of information and the establishment of direct consultations between the competent authorities with a view to reaching consensus on an effective solution. However, neither common legally binding criteria for deciding the best jurisdiction nor specific rules for the transfer of proceedings (which can occur after parallel proceedings have been identified) were established in this instrument, or in any other instrument adopted by the EU to date.This book analyses the current EU legal framework on conflicts of jurisdiction and transfer of criminal proceedings, paying special attention to its numerous shortcomings and loopholes from a fundamental rights and due process of law perspective. The book begins with an assessment of the various principles and grounds used by Member States for claiming criminal jurisdiction. Secondly, de lege lata EU procedure on the settlement of conflicts of criminal jurisdiction, as well as its implementation in Spain and Italy, are thoroughly examined. After discussing the main principles and fundamental rights at stake, the author proposes two alternative and original de lege ferenda models for the prevention and settlement of conflicts of criminal jurisdiction and transfer of criminal proceedings, exploring the different possibilities offered by the EU's primary law.

Introducing ethically controversial (bio)technologies into the public healthcare system inevitably provokes societal and legal conflict. While it is often argued that these choices ought to comply with moral standards, the consideration of ethical and religious concerns raises a serious problem of legitimacy. By adopting the position that the state must act in an ethically neutral manner this book provides a critical legal analysis of the relationship between ethics and law and its implications for the public healthcare system. The ensuing examination combines a comparative, legal-constitutional perspective with the investigation of two case studies: preimplantation genetic diagnosis (PGD) and non-invasive prenatal testing (NIPT).

This book explores the historical and legal importance of two principles, Quod Omnes Tangit, and Tianxia Wei Gong, which have played significant roles in European and Chinese political and legal history. While Quod Omnes Tangit has been thoroughly researched, Tianxia Wei Gong has not been systematically examined. This thesis fills this void and connects these two principles for the first time. Quod Omnes Tangit was initially introduced in Justinian's Codex Civil, while Tianxia Wei Gong originated from Liji, one of the books in a key series of works by Confucius. Liji is comparable to the Thora in the Old Testament and is considered as important as law in Chinese legal history. Both principles have undergone comparable developmental processes, with scholars contributing to their reinterpretation. This book thoroughly examines the interpretations of individual scholars, with particular attention given to Liang Qichao, who is the only one to have mentioned both Tianxia Wei Gong and Quod Omnes Tangit. The book also provides an explanation for the original discrepancies in their concepts, particularly their methodologies in distributing and legitimizing rights. This research will be of interest to legal philosophers and historians in both the Western and Eastern worlds, legal practitioners and policymakers, and researchers seeking to explain current events and explore fundamental differences between the East and West.

This book describes how statements made by non-state actors affect the scope of an individual's criminal responsibility and how they should be taken into account by domestic criminal courts. Sentencing is only possible on the basis and within the limits of the law. In the 21st century, this law increasingly means regulations formulated by various non-state actors: international organisations, human rights tribunals or statutory bodies. The content of these regulations does not only refer to states, but often has a direct impact on the legal situation of individuals. Two worlds collide here. Strict criminal law is influenced by fluid regulations issued by entities that have not been empowered to exercise the right to punish. The book presents an interpretative method to support the court's inference in the cases outlined above, based on the using the concept of two interrelated norms: the norm of the individual and the norm of the court.

This book deals with banking integrations, which are now becoming crucial not only because of the increased number of economic integrations, but also in view of the qualitative improvement of such banking integrations. It compares the European Union (EU), as the most successful union, which was able to move from a common financial market to the prime example of banking integration; the Banking Union; and the Eurasian Economic Union (EAEU) as a relatively young one but with several of the prerequisites for becoming an influential union, and which was established by five countries - the Russian Federation, Kazakhstan, Belarus, Armenia, and the Kyrgyz Republic - in 2015. The key research question is whether the single market in banking services or a banking union is an achievable goal or merely a utopia. In this regard, the book reveals the bottlenecks and obstacles that the EU and EAEU policymakers faced during the difficult process of establishing a single market and banking union. However, along with the problems of banking integration, it identifies many peculiarities of the harmonization of banking legislation among the EU Member States. Recognizing and acknowledging these peculiarities can be very beneficial for young unions and help to guide their integration processes. In particular, the book concludes that evolutionary (not revolutionary) harmonization is required in order for the EAEU to become a full-fledged union.

This book serves as a comprehensive study of and provides rich insight into non-market economy treatment, including its past, present, and estimated future practices and implications. It explores the introduction of the market and non-market economy dichotomy into international trade law. It traces the origin and development of non-market economy treatment against changing international economic and political background. The book examines this treatment in light of the rationale underlying anti-dumping, reflecting its alleged significance of ensuring fair trade. It in particular investigates the varied non-market economy treatment practices responding concerns of Chinäs rising as a large state-led economy, analyzing the deviation of NME treatment into an all-in trade tool. The book argues against preconceived bias and unilateral protectionism. It highlights the universal existence of government involvement in the market and proposes objective assessment of its impact on fair trade.Final proposition of the book is depoliticizing trade, reforming comprehensively international trade rules to carefully calibrate different values, including promoting fairness and enhancing global social welfare. It envisages a multi-dimension overhaul of international trade rules to rebalance trade interests, rather than roughly labeling an economy to confer different treatment, the practices of which lead to separation and chaos. The book is of particular relevance and interest to economies-in-transition, and among policy makers, academicians and legal practitioners engaged in trade remedies and trade rules reconstruction.

Based on the Judicial Transparency Index Assessment (2019 and 2020) conducted in China by the Institute of Law of the Chinese Academy of Social Sciences, this book summarizes and analyzes the current situation of judicial openness in China, using a sample of 218 courts across the country for the study. The book analyzes the ideological and institutional origins of judicial openness and examines the operation of judicial openness through the practical experience of role replacement. By analyzing evaluation data in the fields of audit information disclosure, trial information disclosure, judicial enforcement data disclosure, and judicial reform data disclosure, the book points out that the current judicial disclosure has made significant progress, but there are still problems such as unclear disclosure standards, insufficient rigidity in disclosure requirements, and the scope of disclosure still needs to be expanded. The book recommends accelerating the disclosure of judicial legislation, public standards, and strengthening assessment and accountability.

The book explores "e;what are the societal interests that may be affected by a takeover, are these protected under the current regulatory frameworks of the U.K., Germany, and China, (and if so) how are they protected and what recommendations can be made for future reforms in the three jurisdictions?"e; The book adopts three main methods: law and economics analysis, doctrinal legal research, and comparative analysis.The content of this book is intended not only for the academia; it may also benefit the policy makers by providing an evaluation on the strengths and weaknesses of different protection mechanisms and recommendations for future reforms. Besides, companies which are (potentially) interested in conducting takeovers in the three countries may also find this book useful with its overall analysis of the regulatory frameworks and representative takeover cases in the jurisdictions.

This book analyses the principle of equality from three perspectives: public international law, private international law and EU law. It is the first book in English providing a comprehensive overview of this principle in these areas of law and showing the current trends and issues concerning its application. Its main goal is to understand whether and to what extent the principle of equality has been affirmed in public and private international law, as well as EU law, and what - if any - the common core of this principle is.The analysis carried out in this contributed volume starts from general analyses of the principle of equality in the areas of the law covered by the book and then discusses the principle in more specific areas, such as human rights law, international adjudication (including investment law) and the law of international organizations.The book is intended to become a benchmark for academics dealing with matters of equality in public international law, private international law and EU law. It will be a useful tool for practitioners too, the collected chapters being based on the relevant case law dealing with the principle of equality.Daniele Amoroso is Professor of International Law in the Department of Law of the University of Cagliari, Cagliari, Italy.Loris Marotti is Assistant Professor of International Law in the Department of Law at the Federico II University of Naples, Italy.Pierfrancesco Rossi is Postdoctoral Fellow in International Law in the Department of Law of Luiss University, Rome, Italy.Andrea Spagnolo is Professor of International Law in the Department of Law of the University of Turin, Turin, Italy.Giovanni Zarra is Professor of International Law and International Litigation in the Department of Law at the Federico II University of Naples, Italy.

The global energy economy is undergoing a profound transformation, yielding several pivotal objectives. Foremost among these is mitigating greenhouse gas emissions and toxic pollutants. Another essential goal involves promoting more sustainable economies, thereby curbing material consumption and reducing our reliance on resource extraction. Further priorities include fostering energy security and economic resilience by reducing dependence on external energy sources. All these aims overlap in one common policy: accelerating the renewable energy capacity deployment. Complementing this paradigm shift is the complete electrification of economic activities and households, resulting in the need to incentivize green electricity generation.In this context, this book undertakes a comprehensive exploration of the regulatory framework underpinning the advancement of green electricity. After reviewing the political and economic dimensions, it offers an exhaustive analysis of ongoing developments in four legal domains: The WTO, EU, Germany, and Turkey.Furthermore, the book presents a legal analysis of the intricate interplay between the WTO and EU law coupled with the German and Turkish models. It focuses on the most topical and relevant issues, including the effect of the ongoing energy crisis on state aid for green electricity in the EU; WTO case law on local content requirement components of the promotion schemes; the intricate legal, economic, and political challenges that accompany Germany¿s Energiewende and its phasing out of coal and nuclear energy; and Turkey¿s regulatory endeavors to bolster its energy self-sufficiency strategy.Following a thorough examination encompassing theoretical, regulatory, and comparative aspects, the book moves beyond the applicable legal framework to make concrete proposals on the future design of green electricity promotion in Germany and Turkey so as to facilitate a rapid but socially equitable energytransition by incentivizing economic efficiency.

La presente obra de los profesores Jiménez y Urbina, analizan los pormenores teóricos y sus praxis sobre los dos mecanismos de persecución contra los patrimonios ilícitos globales: el decomiso sin condena o civil y la extinción de dominio. Este libro parte de las investigaciones publicadas hace unos años sobre el comiso autónomo y la extinción de dominio, de los mismos autores, mucho antes de su aplicación o discusión en Venezuela. En la medida que la delincuencia económica 2.0 avanza en sus patologías cada vez más discretas el grado de destrucción es progresivamente proporcional sobre los sistemas económicos, tal como lo indican los informes y estudios de organizaciones internacionales como la ODCE, el Banco Mundial, el FMI, el GAFI. Urge a los Estados la aplicación de mecanismos que corrijan patrimonialmente estos desequilibrios introducidos por bienes ilícitos, cuyo daño no solo se circunscribe a lo material sino también a los imaginarios colectivos sobre cómo obtener mejoras económicas.La obra está dividida en tres partes. La primera, dedicada íntegramente al estudio del decomiso sin condena y a la extinción de dominio no tanto desde la óptica descriptiva sino de los modelos conceptuales. Se estudia el origen y fuentes normativas globales de ambos institutos (LMEDO, UNCAC y Directiva 2014/42/UE), haciendo un detallado repaso de la construcción originaria anglosajona y su adaptación al Derecho continental por la jurisprudencia del Tribunal Europeo de Derechos Humanos (TEDH). Incluye un análisis de los modelos y tendencias de extinción de dominio en América Latina, desde la prototípica sistemática colombiana (versión dominante) hasta las nuevas variantes negadora o de desafío. La segunda parte del libro se detallan las tendencias contemporáneas sobre el decomiso sin condena y la extinción de dominio en Europa y América Latina, respectivamente. La tercera y última parte, está dedicado al estudio exhaustivo de la Ley Orgánica de Extinción de Dominio venezolana (LOED). Se aborda al instituto tanto en sus aspectos sustantivos (constitucionalidad, características, efectos, problemas con otras instituciones análogas como la confiscación, etc.) como procesales. El texto repasa los pormenores del nuevo procedimiento de extinción de dominio, para lo cual, la LOED califica a la acción de naturaleza civil patrimonial

The unification of international commercial law has been a common course for every country of the world. The U.N. Convention on Contracts for International Sale of Goods (CISG) is a milestone in creating a uniform law in the field of the international sale of goods. The CISG coordinated divergent political, economic, and legal systems combined different contract laws and set up a comprehensive and independent legal framework for the international sale of goods.This book examines the basic requirements and criteria of the CISG¿s interpretation and investigates how to achieve the uniform interpretation of the CISG based on interpretation rules in the CISG and through appropriate legal interpretation approaches.As a comprehensive and uniform legal framework for the international sale of goods, the CISG still has gaps to fill. Therefore, a uniform interpretation in gap-filling is equally important for the CISG. This book discusses gap-filling in the CISG, explains why and how to fill its gaps, clarifies gap-filling approaches, their order of application, and eventually concentrates on general principles and the uniform interpretation of the CISG.Another feature of the book is to discuss the supplementary materials that could be used to assist in the uniform interpretation of the CISG. PICC, foreign cases, UNCITRAL Digest, and the CISG Advisory Council opinions will be examined in detail to see whether and how they can fill the gaps in the CISG and promote its uniform interpretation.Only by clarifying the basic requirements and principles relating to the CISG¿s uniform interpretation, can courts and arbitral tribunals correct their attitude toward and practices in the interpretation of the CISG. Only by following the autonomous interpretation approach, can the CISG achieve its goal to unify the sale of goods laws and promote the development of international commerce.

This book argues that large corporations need to implement governance practices and processes that make them better innovators and that the challenge is to identify organizational principles and practices that provide the best chance of delivering innovative products to create a meaningful consumer experience. In this context, it is important to recognize that when we address organizational forms, we are not thinking of corporate governance in the sense of managing agency costs and ensuring regulatory compliance, but the more pressing business task of putting in place organizational systems and processes that facilitate value creation through continued and sustained innovation. The book examines how the contemporary concept and discourse of corporate governance may be obsolete or, at least, is increasingly disconnected from the needs and realities of the most innovative firms today. The concept of organizing for innovation-identifying process and practices that deliver the best opportunities for innovation-needs to take centre stage. This book aims to contribute to the nascent debate in this area by bringing together a series of chapters that examine various issues related to organizing for innovation.

The book focuses the openness of Chinese copyright law and patent law, namely the right limitation and exception rules (as the IP-internal balancing mechanism) and the right enforcement and protection (as the IP-external balancing mechanism). It examines the highlights of the 3rd and 4th amendments to the Chinese copyright law, patent law and the trademark law, addressing the most debated questions during these amendments. This book also takes a comparative approach to study the legislations and case laws in the USA, EU and China. The comparison covers the legislation, case decisions, which could offer useful clues for legislators to revise the current law, for judges to decide the cases about relevant topics and lay down their market plans. Moreover, this study also provides several recommendations for the right holders who are currently operating or planning to operate in China, regarding the de facto protection levels of their IP rights, the risks of right infringement and litigation costs as well as the trend of the goalsetting in their intellectual property strategy.

This book, one of the first of its kind, explores the impact of the COVID-19 pandemic on modern Western democracies from a comparative constitutional law and policy perspective. Through 11 scholarly contributions, it tackles cutting-edge topics for the liberal state, such as emergency legislation, judicial scrutiny of COVID-19 measures, parliamentarism and executive decision-making during the pandemic. The book examines these topics both from a microscopic national constitutional angle, with a focus on European states, and from a macroscopic regional and comparative angle, on par with the American example. The COVID-19 pandemic is thus treated as an international state of emergency that has enabled far-reaching restrictions on essential human rights, such as freedom of movement, freedom of religion or even major political rights, while giving rise to the 'administrative state.'This edited volume explores each of these pressing themes in this exceptional context and evaluates different liberal states' responses to the pandemic. Were these responses reasonable, effective and democratic? Or is the COVID-19 pandemic just the beginning of a new era of global democratic backsliding? How can liberal democracies manage similar crises in future? What lessons have we learned? The institutional knowledge gained turns out to be the key for the future of the rule of law.

This is an increasingly timely book, focusing on issues arising from the impact of COVID-19 on the health care law of the Central and East European countries. It deals with dualism and system of health care law, depicts legal personality in the field of health care, examines property rights and turnover of human tissues, considers moral rights in this field, intellectual ownership in the field of medicine and pharmacy, contracts on health care and contracts on rendering medical services, the legal relationships of transplantology, post-mortem reproduction and donorship, features of family personal property rights in the field of health care, problems of legal regulation of medical workers labour, investigates private legal relationships of surrogate motherhood with foreign element. Special attention is given to the alternative resolution of health care disputes and impact of pandemic on the effective health rights protection. The book is intended for wide auditoria of scholars and practitioners, who engaged in health care rights protection, as well as judges and practicing lawyers, graduate and undergraduate students.

This book is about environmental and climate legal protection in the energy transition. The Paris Agreement has a binding commitment of holding the global temperature increase to 2(deg)C while pursuing efforts to limit it to 1.5(deg)C. To cope with the negative effects of climate changes and mitigate greenhouse gas emissions, one of the primary responses has been the deployment of renewable energy sources, transiting from fossil fuels to sustainable electricity production. However, renewable energy sources can also cause significant environmental impacts. Wind energy, for instance, can impact biodiversity, such as birds and bats, killing them when colliding with turbines and affecting their migration and nesting.This results in conflicts in environmental law.  This book questions whether, in the energy transition, the generation of electricity from renewable sources to protect the climate is compatible with the protection of the environment, both interests in environmental law.To address this question, this book follows a legal-environmental perspective and assesses the common problem of solving those internal environmental conflicts in Brazilian and German law to understand and compare whether and how both legal systems solve the conflicts by compatibilizing the protection of the climate with other environmental interests. The legal analysis focuses on land-use planning and environmental licensing, assessing similarities and differences, and evaluating the results, identifying what one country can learn from the other.

The aim of this book is to delve into the impact of the Information and Communications Technologies in the criminal prevention and investigation, by addressing the state of the art of different measures and its implementation in different legal systems vis à vis the protection of human rights. Yet this research not only pursues a diagnostic goal but furthermore aims at providing a reconstruction of this problematic area in light of modern, human rights-oriented notion of criminal justice. This broadens the scope of this investigation, which encompasses both unprecedented safeguards to traditional, or anyway widely recognized individual rights and the emergence of new rights, such as the right to informational self-determination, and the right to information technology privacy.The book addresses the problems and potentials in the areas of criminal prevention and criminal investigation, taking into account that due to electronic surveillance and the progress in the use of big data for identifying risks, the borders between preventive and investigative e-measures is not clear-cut.

This book focuses on the real themes in various areas of international economic law and explores the key elements behind the written rules. The advantage of this approach is that these themes or elements apply to all types of countries, whether developed or developing, whether market-based or not, and to trade, investment, or other transactions.This book reflects the author's thoughts and views on international economic law and its application based on his experience advising government departments and entities, particularly insights into the U.S.-China trade war from the perspective of a Chinese scholar. This feature makes the book very different from other books published before the U.S.-China trade war or textbooks that simply introduce the relevant subjects and provokes readers to think deeply about the relevant issues.

The book deals with the secession/separation of territorial entities and the legal consequences that derive from it both for the parent state and for the seceded/separated entity or the entity that intends to secede/separate. This subject is approached from the triple perspective of international law, comparative law, and Spanish law.International law, because it is this legal system which contains the general legal framework within which this issue must be dealt with. Thus, for example, the legal basis of the right to self-determination, the constituent elements of the state, the recognition of states and governments, succession in the matter of treaties, succession in membership of International Organisations, etc.Moreover, international law is also the reference invoked by secessionist/independentist political projects within states in an attempt to provide a legal basis for the legality of their claim.Comparative law, in order to find out not only how most state constitutions deal with secession or independence of their territories, but also the jurisprudence handed down by national courts on the matter (USA, Canada, Italy, France, Spain, among others).And finally, Spanish Law, because the perspective chosen to address the object of study is from the perspective of Spain.

This book presents a selection of the latest arbitration cases, materials, and commentaries from China. It aims to provide information on the theory and practice of arbitration combined. It is intended to provide readers with a useful resource to guide them when they encounter actual China-related arbitration cases. This book is a valuable resource for all practitioners concerned with international and foreign-related arbitration matters in China, global law firms, companies engaged in multinational business, jurists, and academics.

In diesem Buch werden die völkerrechtlichen Debatten um die Dekolonialisierung innerhalb der Vereinten Nationen und in der Völkerrechtswissenschaft in den fünfziger und sechziger Jahren des 20. Jahrhunderts anhand des Beispiels Kongo (heutige Demokratische Republik Kongo) aufgearbeitet. Hierbei wird die Geschichte des ressourcenreichen Landes mit der Völkerrechtsgeschichte der Dekolonialisierung verbunden. In den Vordergrund rückt dabei die sog. Dependenztheorie. Diese aus den sechziger und siebziger Jahren stammende Theorie, wonach aus dem Kolonialismus hervorgegangene hierarchische Abhängigkeitsstrukturen eine Entwicklung der neuerdings unabhängigen Entwicklungsländer auch in der postkolonialen Ära begrenzen, wurde im letzten Jahrzehnt in der Völkerrechtsgeschichte aus postkolonialer Perspektive wiederentdeckt. Das Buch zeigt auf, dass die Dependenztheorie als Erklärung für die weiterhin bestehenden vielschichtigen Probleme im Kongo relevant bleibt.

This book explores innovative and context-driven political and legal policy measures designed to expand the powers of the African Union (AU) in order to meaningfully drive the continental integration process. In this regard, the book addresses issues of context, political will, and innovative and inclusive approaches as essential elements that must be considered. Africa is currently experiencing one of the most critical phases of its integrative development. Since 2015, there have been increasing efforts to develop policies and practices that grant the AU broader powers to coordinate and create binding rules regarding the regional integration process. In other words, these processes seek to endow the AU with supranational powers like those exercised by the European Union, which, despite its internal problems, remains the most successful experiment in supranationalism in the world.This has included the decision to finance the AU through a 0.2% tax on eligible imports into member states; the decision to reduce the number of AU Commission portfolios from eight to six; the adoption and entry into force of the much touted Agreement establishing the African Continental Free Trade Area; the adoption of the Protocol to the Treaty Establishing the African Economic Community Relating to Free Movement of Persons, Right to Residence and Right of Establishment; and the adoption of the AU Agenda 2063 policy framework in 2015. How these processes will change the direction of regional integration in Africa, the book argues, largely depends on the existence of quality-driven institutions.

The public policy exception has often been relied on by national courts in India and other jurisdictions as a grounds for refusing enforcement of foreign arbitral awards. In this context the exception has been given varying interpretations. This book deals with the question of whether the scope of the public policy exception as a grounds for refusing enforcement should be legislatively defined, or rather left to judicial interpretation. It does this by using recent amendments to the Indian arbitration law as an example, and conducting comparative law research with approaches taken in both major common and civil law jurisdictions. It then evaluates the benefits - disadvantages- and the rationale for having such a definition. It finally evaluates what should be the ideal statutory scope of the exception.

This book focuses on Chinese cases on the CISG decided by Chinese courts of all levels, focusing on 2011 to 2012. During this period, the number of cases grew fast compared to 2006 to 2010. The total number of cases remained relatively low, the reasons of which might be the following: parties were not familiar with the CISG and therefore decided to opt out of it; in addition, the case collection and report systems in China at that time were not as developed as now, rendering many cases inaccessible.This book provides a comprehensive and detailed analysis of selected cases. The analysis of those cases is on a case-by-case basis. For each case, an English summary of the judgment is provided. In the comment, the People¿s Courts¿ approach to the interpretation and application of the CISG is emphasized. Comments of the individual case are written either by scholars or judges or lawyers from international and comparative perspective to discuss the successes and pitfalls of the interpretation and application of the CISG.

The expression "e;transitional justice"e; emerged at the end of the Cold War, during the transition from dictatorships to democracies, and serves as a central concept in dealing with systemic injustice. This textbook examines the basic principles of transitional justice and explores its core mechanisms, including prosecutions, amnesties, truth commissions, reparations, and vetting the public service. It elaborates the substance and legal framework of these mechanisms and discusses current challenges.The book provides extensive material illustrating a wide variety of transitional justice situations.  "e;This book summarizes the subjects of transitional justice and Vergangenheitsbewaltigung systematically and clearly"e; (Joachim Gauck, German Federal President, 2012-2017).