ORBELIANI LAW REVIEW

Liability of the Carrier in the Road Carriage of Goods for Theft and Robbery Under Polish Law and the CMR Convention

2023-02-10T10:46:53+00:00

Carrier’s liability in the carriage of goods by road is a fundamental part of the Convention on the Contract for the International Carriage of Goods by Road (CMR), which regulates international transport, and the Polish Act –Transport Law, which regulates domestic transport. Carrier is responsible for total or partial loss of goods or for their damage (that is one of the socalled “damages in the substance of the shipment”) that occurred in the time between goods receipt and its delivery as well as for the delay of delivery. The carrier is exempt from this liability if the damage to the shipment resulting from certain events (called exonerating circumstances), including circumstances that the carrier could not avoid and the consequences of which he was unable to prevent (Article 17 paragraph 2 of the CMR Convention) or vis maior (Article 65 paragraph 2 of the PrPrzew). Here appears a significant
difference between the Convention and the Polish Act, as these exemption circumstances are not identical. Already at this point it may be pointed out that the Polish act introduced a more far-reaching prerequisite releasing the carrier from liability, as a result of which in the case of application of the Polish act it’s much more difficult for the carrier to release himself from the obligation to redress the damage.

Applying the Principle of Fair Remuneration During the Collective Management of Authors’ Rights: Different Perspectives

2023-02-10T10:57:40+00:00

Fair remuneration principle is one of the foundations of the authors’ rights and collective management of these rights is the process where the principle of fair remuneration has to be applied. This principle is not only a theoretical doctrine but rather a practical solution to the problems which emerge in the realities of different legal systems and geopolitical dimensions. Collective management organizations, established in Western Europe, have gone through an interesting path of development in the post-Soviet Eastern European countries, where they had to consider both: long-lasting Soviet heritage and the urgent need to implement
a Western legal system. These contradictions have revealed numerous problems, which were less observable in Western countries. One of them is the calculation, collection, and distribution of the royalty fees on the fair basis of proportionality. Examination of several different examples shows how modern technologies can be used, in order to make this fair distribution real and apply the theoretical principle in practical reality

The Disciplinary Identity of International Criminal Law: Balancing Between Positivism and Multidisciplinarity

2023-02-10T11:02:29+00:00

This essay discusses how the character and nature of international criminal law influence the way it is studied. By providing a historical review of its intellectual origins, it shows why international criminal law’s disciplinary identity remains under the influence of positivistic principles. In going beyond international criminal law, this essay also critically discusses why some hold a multidisciplinary analysis of international law in contempt and exposes the challenges of placing legal scholarship in distinct categories by labelling legal academics as positivists, doctrinalists, practice-oriented, policy-driven, or as multidisciplinarians. This piece will describe how international criminal law is being studied, how scholarship developed, and whether the value of the research lies in its relevance for the practice before international criminal courts. In discussing the pitfalls of pure doctrinal or
multidisciplinary research, it weaves together theoretical considerations beyond the traditional positivistic paradigm with a plea to study international criminal law under different sensibilities and disciplinary protocols.

The United Nations, the Council of Europe and the European Union Regarding the Protection of Victims of Trafficking

2023-02-10T11:06:41+00:00

The instruments for the prevention and fight against trafficking in human beings and the protection of victims have meant the assumption of the victim-centric paradigm in the fight against the phenomenon of trafficking in human beings. However, this
article will analyze the protection measures of the United Nations, the Council of Europe, and the European Union and the protection they provide to these victims. As we shall see, in the case of victims in an irregular administrative situation, this protection is very limited.

The Principle of Effectiveness of Eu Law from the Perspective of the Obligations of National Courts

2023-02-10T11:19:39+00:00

The principle of effectiveness of EU law, despite the lack of an explicit basis in EU primary law, is the source of principles regulating the nature of EU law and the manner of its application. It particularly affects the performance of duties by domestic courts,
which, according to the wording of Art. 19 para. 1 item 2 TEU, is one of the elements of the EU judicial system. It is based on a systemic dualism that includes the CJEU and national courts. When analyzing the implementation of the principle of effectiveness,
it should be noted that it covers two areas. The first is of general nature and concerns the obligation to ensure the effectiveness of EU law, and the second – the subjective one – is related to the obligation to ensure the effectiveness of EU law in a specific case by
granting adequate protection to the rights of an individual that derive from EU law. In this aspect, the courts are of key importance, as they implement it through the systemic principle of effective judicial protection. It is a guide that indicates how to proceed
and what principles should be followed in the process of application of EU law. This process consists of several stages, the implementation of which is subordinated to one goal – to guarantee effective judicial protection and thus the effectiveness of EU law. First, the court examines whether a given claim is based on a norm that has a direct effect, which will determine the next stage of action. Then, by referring to the principle of direct effect, it subsumes and, if necessary, applies the principle of primacy of EU law
or a pro-EU interpretation. The last element that indirectly implements the principle of effectiveness of EU law is the referral for a preliminary ruling.

The Scope of Discretionary Powers of Tax Authorities

2023-02-10T11:24:27+00:00

There are sharply different opinions about the scope of discretionary powers of tax authorities. This is to some extent related to the absence of a common discourse on the key issues of discretionary powers of the tax administration - what does discretion
mean in taxation? What is the place of discretion in the tax system? What is the optimal model of discretion and can it be achieved in taxation? Different approaches are related to legal traditions of different families of law, different administrative and judicial practices, and hypotheses developed in the science of tax law. This paper analyzes the manifestation, characteristics, and scope of discretionary powers of tax authorities.