Legal arguments used in courts regarding territoriality and cross-border production orders

2018 ◽  
Vol 9 (3) ◽  
pp. 326-352
Author(s):  
Paul de Hert ◽  
Cihan Parlar ◽  
Johannes Thumfart
Keyword(s):  
Legal Framework ◽  
Cross Border ◽  
Territorial Sovereignty ◽  
Data Production ◽  
Virtual Presence ◽  
Production Orders ◽  
Extraterritorial Jurisdiction ◽  
Search Warrant ◽  
Data Subject ◽  
Voluntary Cooperation

This contribution reflects on recent cases involving cross-border data production orders such as Yahoo Belgium, Skype Belgium and Microsoft Ireland. Cross-border data production orders are found to generally involve conflicts regarding sovereignty and enforcement jurisdiction and to frequently include voluntary cooperation of companies for which the legal framework is lacking (Introduction). The Lotus principle, which recognizes a broad extraterritorial jurisdiction to prescribe and limits extraterritorial enforcement jurisdiction, is reconsidered concerning those issues (see the ‘International law pragmatism for jurisdiction to prescribe, but not for jurisdiction to enforce’ section) and the use of mutual legal assistances, which should be the rule, is discussed with four caveats (see the ‘Four caveats to territorial sovereignty and the need for MLAs: Unclarities and politics’ section). Twelve typical arguments are identified, which are employed in courtrooms when cross-border data production orders are discussed, for example, arguments regarding territorial sovereignty, the location of servers, the virtual presence of businesses via the Internet or the nationality of the data subject (see the ‘Arguments in courtrooms in favour or against informal-based cross-border investigations’ section). Subsequently, from fourth to seventh sections, those arguments are investigated regarding their context in the cases Yahoo! Belgium (2007–2015), Skype Belgium (2012–2017), Microsoft Ireland (2013–2018) and Google in re Search Warrant (2017). Finally, a first step to evaluate and test the strength of those arguments is undertaken (see the ‘Assessing the arguments: From logically weak, to unpractical to law enforcement utilitarianism (give us everything)’ section).

Thematic Priorities For Sustainable Development of Ukraine-Romania Cross-Border Cooperation (The Case Study of Chernivtsi Region)

2020 ◽  
pp. 205-219
Author(s):  
Valentyna Bohatyrets ◽  
Liubov Melnychuk ◽  
Yaroslav Zoriy
Keyword(s):  
Foreign Policy ◽  
Quantitative Research ◽  
Legal Framework ◽  
Cultural Development ◽  
Cross Border ◽  
Strategic Orientations ◽  
The Impact ◽  
Further Development ◽  
Cross Border Cooperation ◽  
The Eu

This paper seeks to investigate sustainable cross-border cooperation (CBC) as a distinctive model of interstate collaboration, embedded in the neighboring borderland regions of two or more countries. The focus of the research revolves around the establishment and further development of geostrategic, economic, cultural and scientific capacity of the Ukrainian-Romanian partnership as a fundamental construct in ensuring and strengthening the stability, security and cooperation in Europe. This research highlights Ukraine’s aspirations to establish, develop and diversify bilateral good-neighborly relations with Romania both regionally and internationally. The main objective is to elucidate Ukraine-Romania cross-border cooperation initiatives, inasmuch Ukraine-Romania CBC has been stirring up considerable interest in terms of its inexhaustible historical, cultural and spiritual ties. Furthermore, the similarity of the neighboring states’ strategic orientations grounds the basis for development and enhancement of Ukraine-Romania cooperation. The authors used desk research and quantitative research to conclude that Ukraine-Romania CBC has the impact not only on the EU and on Ukraine multi-vector foreign policy, but it also has the longer-term global consequences. In the light of the current reality, the idea of introducing and reinforcing the importance of Cross-Border Cooperation (CBC) sounds quite topical and relevant. This research considers a number of explanations for Ukraine-Romania Cross-Border Cooperation as a key element of the EU policy towards its neighbors. Besides, the subject of the research is considered from different perspectives in order to show the diversity and complexity of the Ukraine-Romania relations in view of the fact that sharing common borders we are presumed to find common solutions. As the research has demonstrated, the Ukraine-Romania cross border cooperation is a pivotal factor of boosting geostrategic, economic, political and cultural development for each participant country, largely depending on the neighboring countries’ cohesion and convergence. Significantly, there is an even stronger emphasis on the fact that while sharing the same borders, the countries share common interests and aspirations for economic thriving, cultural exchange, diplomatic ties and security, guaranteed by a legal framework. The findings of this study have a number of important implications for further development and enhancement of Ukraine-Romania cooperation. Accordingly, the research shows how imperative are the benefits of Romania as a strategic partner for outlining top priorities of Ukraine’s foreign policy.

Cross-border Distribution of Collective Investment Products in the EU

2018 ◽  
Author(s):  
Matteo Gargantini ◽  
Carmine Di Noia ◽  
Georgios Dimitropoulos
Keyword(s):  
Home Country ◽  
Legal Framework ◽  
Business Rules ◽  
Investment Funds ◽  
Legal Rules ◽  
Section 8 ◽  
Cross Border ◽  
Product Regulation ◽  
Supervisory Practices ◽  
The Eu

This chapter analyzes the current regulatory framework for cross-border distribution of investment funds and submits some proposals to improve it. The chapter is organized as follows. Section 2 provides a schematic description of the legal taxonomy for collective investment schemes. Section 3 addresses the EU disclosure regimes that apply to the distribution of various types of investment funds. Sections 4 and 5 consider conduct-of-business rules and, respectively, the legal framework for the allocation of supervisory powers on product regulation when fund units are distributed in more than one country. Section 6 provides some data that help assess the performance of the current framework for cross-border distribution. It then analyzes some of the residual legal rules and supervisory practices that still make cross-border distributions of funds more burdensome than purely national distributions, whether these restrictions are set forth in the country where investors are domiciled (Section 7) or in the fund's home country (Section 8).

Territorial Governance of EU Cross-Border Renewable Energy Cooperation: A Soluble or Turbulent Model in the Current Framework?

2021 ◽  
Vol 2 (1) ◽  
pp. 79-97
Author(s):  
Melis Aras
Keyword(s):  
Renewable Energy ◽  
Large Scale ◽  
Planning Process ◽  
Renewable Energy Sources ◽  
Local Level ◽  
Energy Transition ◽  
Clean Energy ◽  
Legal Framework ◽  
Development Planning ◽  
Cross Border

The energy transition in Europe requires not only the implementation of technological innovations to reduce carbon emissions but also the decentralised extension of these innovations throughout the continent, as demonstrated by the ‘Clean Energy for All Europeans’ package. However, decentralised energy generation, and specifically electricity generation, as it gives rise to new players and interactions, also requires a review of the energy planning process. In this sense, governance becomes the key concept for understanding the implementation of the energy transition in a territory. This is particularly visible in a cross-border setting, especially considering cross-border cooperation in the development of renewable energy sources (RES) provides the necessary elements to determine the criteria of local regulation between the different levels of governance. In light of the current legal framework in France, this paper presents the institutional framework of the multi-level governance of the RES development planning process. It concludes that it is quite conceivable for the rationales of governance at the local level (decentralisation) and the large-scale operation of a large interconnected network (Europeanisation) to coexist.

A minoritized language on both sides of the border: legal framework and language policy of Catalan in Andorra and Catalonia

Multilingua ◽  
2019 ◽  
Vol 38 (2) ◽  
pp. 155-168
Author(s):  
Juan Jiménez-Salcedo
Keyword(s):  
Language Policy ◽  
Legal Framework ◽  
The Other ◽  
Language Policies ◽  
Lingua Franca ◽  
Cross Border ◽  
Other Hand ◽  
State Schools

Abstract This article analyzes the legislation of the two territories that have the most advanced legal framework regarding language policies towards Catalan: Andorra and Catalonia. The study of the legislation in relation to contexts of social and institutional use shows how this legal framework is not sufficient to change Catalan from being a minoritized language, since the phenomenon of minoritization is innate to the ecosystem in which languages develop. This ecosystem is conditioned by the presence of Castilian as a lingua franca on both sides of the border between Andorra and Catalonia. In the case of Andorra, its status as a cross-border microstate makes it a plurilingual space with Castilian as a socially cross-cutting language; moreover, the fact that until recently there was no network of state schools hindered Catalan language normalisation efforts. Catalonia, on the other hand, is an even more complex example on account of how the implementation of llengua pròpia policy contradicts the constitutional control the Spanish state exercises on this.

scholarly journals An Urgent Suggestion to Pour Old Wine into New Bottles: Comment on “A New Jurisprudential Framework for Jurisdiction”

AJIL Unbound ◽  
2015 ◽  
Vol 109 ◽  
pp. 81-85 ◽  
Author(s):  
Cedric Ryngaert
Keyword(s):  
International Law ◽  
Data Protection ◽  
Legal Framework ◽  
The Internet ◽  
Technological Evolution ◽  
International Jurisdiction ◽  
Cross Border ◽  
Data Protection Law ◽  
Informed Reader ◽  
Previous Scholarship

Dan Svantesson is quickly establishing himself as a leading voice in the field or jurisdiction. Coming to this field from Internet and data protection law, he is surely well placed to criticize the current legal framework of international jurisdiction in light of technological evolution, which has made territoriality lose its salience as the cornerstone of jurisdiction. I myself have recently been characterized as one of the border guards of territoriality, on the basis of my earlier monograph on Jurisdiction in International Law. Accordingly, the informed reader might believe that I will severely criticize as iconoclastic such a proposal as Svantesson’s namely, doing away with territoriality as the very linchpin of jurisdiction. As it happens, however, I largely concur with Svantesson’s ideas, at least to the extent they apply to cross-border transactions via the Internet. In this contribution, I argue that the reality of a de-territorialized Internet necessitates jurisdictional rethinking, but that this rethinking in fact heavily relies on previous scholarship, predating the Internet era. The advent of the current era, however, has lent particular urgency to those earlier proposals.

Security in Transnational Interoperable PPDR Communications

2016 ◽  
Vol 7 (4) ◽  
pp. 41-60 ◽  
Author(s):  
Ramon Ferrús ◽  
Oriol Sallent ◽  
Cor Verkoelen ◽  
Frank Fransen ◽  
Keld Andersen ◽  
...  
Keyword(s):  
Cost Effective ◽  
Legal Framework ◽  
Security Requirements ◽  
Security Architecture ◽  
Security Risk ◽  
European Network ◽  
Cross Border ◽  
Long Time ◽  
Security Operations ◽  
Technical Framework

The relevance of cross border security operations has been identified as a priority at European level for a long time. A European network where Public Protection and Disaster Relief (PPDR) forces share communications processes and a legal framework would greatly enforce response to disaster recovery and security against crime. Nevertheless, uncertainty on costs, timescale and functionalities have slowed down the interconnection of national PPDR networks and limited the transnational cooperation of their PPDR forces so far. Currently, the European research project ISITEP is aimed at developing the legal, operational and technical framework to achieve a cost effective solution for PPDR interoperability across European countries. Inter alia, ISITEP project is specifying a new Inter-System-Interface (ISI) for the interconnection of current TETRA and TETRAPOL networks through Internet Protocol (IP) connectivity. This approach turns communications security as a central aspect. In this context, this paper describes the framework and methodology defined to carry out the development of the security requirements for the interconnection of PPDR networks via the new IP ISI and provides a discussion on the undertaken security risk and vulnerability analysis. Furthermore, an overview of the designed security architecture solution for network interconnection is provided.

scholarly journals EU-US Digital Data Exchange to Combat Financial Crime: Fast is the New Slow

2018 ◽  
Vol 19 (5) ◽  
pp. 1251-1267 ◽  
Author(s):  
Els De Busser
Keyword(s):  
Data Exchange ◽  
Legal Framework ◽  
Company Law ◽  
Digital Data ◽  
Digital Evidence ◽  
Criminal Prosecution ◽  
Legal Assistance ◽  
Mutual Legal Assistance ◽  
Cross Border ◽  
Digital Nature

AbstractCriminal offenses with the most different modi operandi and levels of complexity can generate digital evidence, whether or not the actual crime is committed by using information and communication technology (ICT). The digital data that could be used as evidence in a later criminal prosecution is mostly in the hands of private companies who provide services on the Internet. These companies often store their customers’ data on cloud servers that are not necessarily located in the same jurisdiction as the company. Law enforcement and prosecution authorities then need to take two steps that are not exclusive for evidence of a digital nature. First, they need to discover where the data is located—with which company and in which jurisdiction. Second, they need to obtain the data. In considering digital evidence, the last step, however, is complicated by new issues that form the focus of this paper. The first concern is the practice by companies to dynamically distribute data over globally spread data centers in the blink of an eye. This is a practical concern as well as a legal concern. The second issue is the slowness of the currently applicable international legal framework that has not yet been updated to a fast-paced society where increasingly more evidence is of a digital nature. The slowness of traditional mutual legal assistance may be no news. The lack of a suitable legal framework for competent authorities that need to obtain digital evidence in a cross-border manner, nonetheless, creates a landscape of diverse initiatives by individual states that try to remedy this situation. A third issue is the position that companies are put in by the new EU proposal to build a legal framework governing production orders for digital evidence. With companies in the driver's seat of a cross-border evidence gathering operation, guarantees of the traditional mutual legal assistance framework seem to be dropped. A fourth issue is the position of data protection safeguards. US based companies make for significant data suppliers for criminal investigations conducted by EU based authorities. Conflicting legal regimes affect the efficiency of data transfers as well as the protection of personal data to citizens.

10 Czech Republic

2018 ◽  
Author(s):  
Schweigelová Dana
Keyword(s):  
Czech Republic ◽  
Capital Markets ◽  
Legal Framework ◽  
Civil Code ◽  
The Czech Republic ◽  
Cross Border ◽  
Statutory Law ◽  
Regulatory Regimes ◽  
The Cross

This chapter provides an overview of the legal framework of set-off in the Czech Republic both outside and within the context of insolvency. In the Czech Republic, set-off rights are regulated exclusively by statutory law. General regulations on set-off arrangements are laid down in Sections 1982–1991 of the Czech Civil Code. Other laws relevant to set-off are the Business Corporations Act, the Capital Markets Act, the Financial Collateral Act, and the Act on Insolvency. The chapter first examines set-off between solvent parties, taking into account general regulations, specific regulations under the Business Corporations Act, contractual set-off involving multiple parties, and special regulatory regimes governing set-off in the Czech Republic. It then considers set-off between insolvent parties before concluding with an analysis of set-off issues arising in the cross-border context.

scholarly journals All evidence is equal, but electronic evidence is more equal than any other: The relationship between the European Investigation Order and the European Production Order

2020 ◽  
Vol 11 (2) ◽  
pp. 161-183
Author(s):  
Stanislaw Tosza
Keyword(s):  
Law Enforcement ◽  
Service Provider ◽  
Real Life ◽  
Direct Consequence ◽  
Legal Framework ◽  
Foreign Service ◽  
Electronic Evidence ◽  
Cross Border ◽  
Production Order ◽  
European Production

The European Investigation Order (EIO) was supposed to offer a comprehensive solution to cross-border gathering of evidence within the area of freedom, security and justice replacing a patchwork of instruments and providing for one single standardised order for all types of evidence. However, not even a year since the deadline for its implementation had passed, the Commission proposed an instrument that would be applicable for electronic evidence: European Production Order (EPO). This initiative was born from an increasing frustration in gathering this type of evidence and the conviction that the EIO is not suitable for that purpose. The need for digital evidence (according to the estimate of the EU Commission, 85% of criminal investigations require electronic evidence) is a direct consequence of the place information and communication technology has taken in everyday life. However, electronic evidence differs in a number of ways from ‘real-life’ evidence rendering current legal framework extremely impractical for law enforcement. One of the major obstacles that law enforcement authorities encounter is the fact that the data they need are often stored abroad or by a foreign service provider. Both instruments were conceived because of the need to gather evidence across borders; however, the transnational component is different (evidence being abroad vs. service provider being foreign). Both instruments subject ‘European citizens to the investigative machinery of any other Member State’, however, in a different way. If the e-evidence package is adopted, it will create a dual system of cross-border gathering of evidence, with different philosophy, procedure, enforcement and protective framework. The goal of this article is to analyse and compare two different models of acquiring evidence that these two instruments offer as well as to delimitate their (non-exclusive) scope. The concluding part will provide a reflection on the systemic consequences of this duality of instruments and of introducing the EPO model in particular.

A jurisprudential analysis of the concurrent criminal jurisdiction over cross-border telecom fraud crime

2020 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Lianlian Liu
Keyword(s):  
Mainland China ◽  
Developmental Trajectory ◽  
Content Type ◽  
Criminal Jurisdiction ◽  
Cross Border ◽  
Territorial Jurisdiction ◽  
Globalizing World ◽  
Criminal Suspects ◽  
Extraterritorial Jurisdiction ◽  
Interpretative Approach

Purpose The issue of concurrent jurisdiction over cross-border crimes has become common in a globalizing world, while the rigid compliance with territoriality and active personality jurisdiction has created a legal vacuum for cross-border crimes in many situations. The jurisdiction dispute between mainland China and Taiwan over cross-border telecom fraud crimes is a good example. In recent years, the Ministry of Public Security of the People’s Republic of China cracked down a series of cross-border telecom fraud crimes against mainland residents and extradited suspects to mainland China. Given a certain proportion of Taiwan residents in criminal gangs, the Taiwan side raised jurisdiction objections, arguing that mainland China had no right to exercise jurisdiction over Taiwanese criminals. The essence of the jurisdiction dispute between two sides is the concurrence of Taiwan’s right to exercise active personality jurisdiction and the mainland’s right to exercise passive personality jurisdiction. The purpose of this paper is to analyze the connotation of different jurisdiction principles (namely, territorial, active personality, protective and passive personality jurisdiction) and reinterpret their prioritization of applicability from a jurisprudential perspective, and thus, enhance the theoretical basis for resolving the issue of concurrent jurisdiction over cross-border crimes. Design/methodology/approach By reviewing the historical trajectory of major jurisdiction principles since the 1920s, and studying the specificities of the case in this context, this paper argues that territorial jurisdiction and active personality jurisdiction have presumed priority but not an absolute priority for resolving the issue of concurrent jurisdiction. The applicability of protective and passive personality jurisdiction could precede the former provided the jurisdictions of territoriality or active personality are inadequate, incompetent or lack of motivation to combat crimes, which harm other jurisdictions. Findings The developmental trajectory and contemporary connotation of major jurisdiction principles suggests that the legitimacy of the mainland’s exercise of passive personality jurisdiction over Taiwan criminal suspects lies in the urgent need to recover mainland victims’ significant property loss, the incompetence of Taiwan in detecting and prosecuting telecom fraud crimes committed by Taiwanese residents and targeting mainland victims and that the mainland has guaranteed the Taiwan side’s right to be timely informed and fully participate in its exercise of criminal jurisdiction over crimes involving Taiwan suspects. Originality/value Current literature on jurisdiction doctrines mainly uses a historical or descriptive approach to reveal the attitudes of different countries toward jurisdiction principles, which helps little in resolving the issue of concurrent jurisdiction over cross-border crimes in an era of globalization. This paper uses an interpretative approach, reinterprets the contemporary connotation of different jurisdiction principles and redefines the criteria for determining their prioritization in the context of the specificities of a case. It is expected to update the academic literature for resolving concurrent jurisdiction, fill the legal vacuum for combating cross-border crimes created by rigid compliance with territorial jurisdiction, and meanwhile relieve concerns about abuse of extraterritorial jurisdiction as it provides concrete standards for weighting the applicability of jurisdiction principles.

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