scholarly journals THE IMMUNITY OF A STATE IN INTERNATIONAL PRIVATE LAW: THE LATEST TENDENCY OF LEGISLATION AND JUDICIAL PRACTICE

2020 ◽  
Vol 11 (87) ◽  
Author(s):  
Mariia Drahan ◽  
Keyword(s):  
Current Approach ◽  
The State ◽  
Private Law ◽  
Sovereign State ◽  
National Legislation ◽  
Judicial Practice ◽  
International Private Law ◽  
The Absolute ◽  
Private Entity ◽  
The Government

This article is devoted to the research of such well-known nowadays phenomenon as the immunity of a state and other different aspects, related to it. Also there was explored different approaches to the basis for granting states rights to the immunity and its application. According to explored sources there are two main approaches to this problem – the immunity of a state depends on its recognition as a sovereign state by other states (their governments), and another one – the immunity of a state depends mostly on the possibility of the government to control the territory of the state and its authority among citizens, but the most right and relevant approach, to our mind, is the combination of both of these approaches. In this article there was analyzed different approaches to the immunity of a state such as the absolute immunity of a state and the functional (limited) immunity of a state. We explored our national legislation to reveal, which approach is more relevant for Ukraine. Thus, as we decided, nowadays prevailing in Ukraine is the approach of the absolute immunity of a state, at least in the main legislative act – the Law of Ukraine «On International Private Law», related to relations within the international private law. At the same time, as we analyzed, in different Ukrainian legislative acts there are not absolutely the same provisions on the immunity of a state. Also explored national judicial practice of the Supreme Court, related to the well-known case, nevertheless, proves, that Ukraine made and still makes some real attempts to change its current approach to the immunity of a state from the absolute immunity of a state to more liberal approach of the functional (limited) immunity of a state, moreover, it is really important within the European integration of Ukraine and the participation of the state of Ukraine in the foreign economic activity as a private entity. Considering all mentioned above, there was made appropriate, relevant conclusion on the latest tendency of the national legislation and the judicial practice on this issue.

scholarly journals Arbitrability of Procurement Disputes

JURIST ◽  
2021 ◽  
Vol 3 ◽  
pp. 2-6
Author(s):  
Viktor V. Eremin ◽  
Keyword(s):  
Public Procurement ◽  
The State ◽  
Future Research ◽  
Wide Field ◽  
Private Law ◽  
The Public ◽  
Judicial Practice ◽  
Legal Relationship ◽  
Civil Contract

This article discusses the arbitrability of disputes, which in the domestic doctrine referred as procurement disputes. These are disputes from a number of laws related to public procurement and ordering. The article provides a brief analysis of the possibility of referring such disputes to arbitration courts. An obstacle to the consideration of these disputes by arbitration courts is judicial practice, which does not accept the use of the private-law mechanism for resolving disputes in such a publicly significant sphere as procurement for public needs. In addition, the author makes the assumption that the concept of the “public element”, which prevails in domestic judicial practice, makes it difficult to enforce the decisions of the arbitration courts on such disputes, since they inevitably have “public elements”, for example, the presence of budgetary funds in the legal relationship special contracting procedures. This concept is in contradiction with the fact that the state contract is a civil contract and, generally, is arbitrable, like other types of procurement. The further possibility of applying arbitration proceedings in procurement disputes is extremely controversial and leaves a wide field for future research.

scholarly journals IMMUNITY OF THE STATE IN THE INTERNATIONAL PRIVATE TRANSPORT LAW: COMPARATIVE LEGAL STUDY

2020 ◽  
Vol 6 ◽  
pp. 23-26
Author(s):  
Tatyana N. Ivanova ◽  
Keyword(s):  
Legal Regulation ◽  
The State ◽  
Commercial Arbitration ◽  
State Immunity ◽  
Judicial Practice ◽  
Arbitration Clause ◽  
Foreign State ◽  
Foreign Countries ◽  
International Private Law ◽  
Legislative Regulation

This article is a study of issues of state immunity in international private transport law. The article as a whole is of an overview nature and will be useful for further research in this area. The author explores the legal regulation of the issue in countries such as Germany, Spain, Hong Kong, North Korea, Ukraine, Norway, Turkey. The paper also examines the development trends of the doctrine of the immunity of a foreign state abroad as a whole, highlights general and special features in the legislative regulation of the immunity of a foreign state in the above countries, and also provides and analyzes relevant judicial practice. In addition, the author explores the issue of jurisdictional immunity in the field of transport law, as well as the question whether it is necessary to involve the state in international commercial arbitration, and concludes that there are no obstacles to the participation of states in arbitration, as the very signing by the state of an arbitration clause means the state’s voluntary renunciation of jurisdictional immunity. In conclusion, based on the analysis, the author formulates some general trends in the legal regulation of foreign immunity abroad. Based on the analysis, it is also concluded that in foreign countries, for the most part, there is no legislative regulation of issues of jurisdictional immunity in international private law.

scholarly journals Value of Comparative Law for the Kyrgyz Republic

2021 ◽  
Vol 7 (3) ◽  
pp. 269-273
Author(s):  
G. Toktogonova ◽  
M. Karimova
Keyword(s):  
Legal System ◽  
Legal Education ◽  
Comparative Law ◽  
The State ◽  
Private Law ◽  
Kyrgyz Republic ◽  
International Private Law ◽  
National Legal System ◽  
Fruitful Cooperation ◽  
Favorable Conditions

The article considers the relevance of comparative law as a science and method that contribute to the development of law on the territory of the state and international private law relations. The article describes the importance of comparative law for legal education in the modern legal life of the Kyrgyz Republic. The article examines the contribution of comparative law to the improvement of the national legal system of the Kyrgyz Republic. The article considers the importance of comparative law in creating favorable conditions for fruitful cooperation of lawyers from different countries.

scholarly journals WHO IS MY NEIGHBOUR? THE DUTY OF CARE IN THE IMMIGRATION CONTEXT: A PERSPECTIVE FROM CANADIAN CASE LAW

2017 ◽  
Vol 33 (2) ◽  
pp. 117
Author(s):  
Sasha Baglay
Keyword(s):  
Tort Law ◽  
Case Law ◽  
The State ◽  
Duty Of Care ◽  
Power Imbalance ◽  
Private Law ◽  
Absolute Power ◽  
Host State ◽  
The Absolute ◽  
Nuanced Understanding

This article reviews and analyzes recent Canadian jurisprudence on immigration-related torts, situating it in the context of the contrasting logic of immigration and tort law. Immigration law’s focus on the absolute power of the state to control admission directs courts away from the recognition of the duty of care. In contrast, tort law theory does not preclude the possibility of private law duties to non-citizens, especially in light of the absence of other effective remedies to address the power imbalance between the host state and the non-citizen. The article examines how these two narratives were negotiated in cases of alleged negligence in immigration processing. It problematizes certain aspects of the current construction of the duty of care towards non-citizens and offers some suggestions for a more nuanced understanding of the factors considered under the Anns/Cooper test. Dans cet article, l’auteure examine et analyse la jurisprudence canadienne récente des délits civils relatifs à l’immigration en la situant dans le contexte de la logique d’opposition du droit de l’immigration et du droit de la responsabilité civile délictuelle. Le droit de l’immigration, qui est centré sur le pouvoir absolu de l’État de contrôler l’admission d’immigrants, fait oublier aux tribunaux la reconnaissance du devoir de diligence. En revanche, la théorie du droit de la responsabilité civile délictuelle n’écarte pas la possibilité d’obligations de droit privé envers des non-nationaux, surtout en l’absence d’autres recours applicables pour résoudre le déséquilibre de pouvoir entre l’État d’accueil et le non-national. Dans cet article, l’auteure étudie la manière dont ces deux discours ont été conciliés dans des cas de négligence présumée dans le traitement de demandes d’immigration. L’auteure définit le problème que posent certains aspects de l’interprétation actuelle du devoir de diligence envers des non-nationaux et présente quelques idées permettant une compréhension nuancée des facteurs pris en compte dans la cause type Anns/Cooper.

scholarly journals Peculiarities of inheritance of deceased's property in international private law

2021 ◽  
pp. 39-42
Author(s):  
Halyna ANIKINA
Keyword(s):  
International Law ◽  
International Agreements ◽  
The State ◽  
Private Law ◽  
Time Of Death ◽  
Private International Law ◽  
International Treaties ◽  
The Third ◽  
International Private Law ◽  
The Relationship

Introduction. The paper is devoted to the study of the peculiarities of the inheritance of deceased property in private international law. The concept of “foreclosed property” is defined. The relationship between the terms “foreclosed property” and “dead heritage” has been clarified. Purpose. In private international law there are two theories (principles) of acquisition of ownership of foreclosed property: the theory of occupation and the theory of inheritance. The essence of each of the approaches to the inheritance of property by the state in private international law is clarified. The list of countries where the “principle of occupation of foreclosed property” is enshrined in law and the countries that apply the theory of inheritance on the principle of the closest connection. Results. The opinions of scientists on the expediency of applying each of the principles have been studied. It has been found that the most effective way to overcome conflicts over the inheritance of foreclosed property between states is through international agreements. In all international treaties governing the relations of inheritance with a foreign element in which Ukraine participates, the same solution to the issue of inheritance of foreclosed property by the state is enshrined. Movable property shall become the property of the Contracting Party of which the testator was a national at the time of death, and immovable property shall become the property of the Contracting Party in whose territory it is located. Conclusion. It is concluded that the application of the third principle of inheritance of foreclosed property in private international law – the “principle of splitting the hereditary statute”.

scholarly journals The Position of the Attorney's Request for Information in Corruption Case Investigation as the Object of the Application for Abuse of Authority in the State Administrative Court (Study of Decision Number: 25 / G / 2015 / PTUN-MDN)

2020 ◽  
Vol 7 (6) ◽  
pp. 590
Author(s):  
Leni Eva Nurianti ◽  
Yuslim Yuslim ◽  
Khairani Khairani
Keyword(s):  
House Of Representatives ◽  
Administrative Law ◽  
The State ◽  
Criminal Proceedings ◽  
Abuse Of Power ◽  
Government Administration ◽  
Procedural Law ◽  
Object Based ◽  
The Absolute ◽  
The Government

The absolute authority of the State Administrative Court in examining, deciding and resolving State Administrative Disputes is based on objects in the form of decisions and / or actions regulated in the State Administrative Court Law (PERATUN Law) and the Government Administration Law (AP Law). In Decision Number: 25 / G / 2015 / PTUN-MDN, the Prosecutor's Request for Information is placed as the object of the request for abuse of authority. Based on these facts, normative legal research is carried out which aims to examine and analyze cases (case approach) with the statute approach and other regulations related to legal issues regarding how the limits of abuse of power are the absolute competence of the State Administrative Court and what is the position. Request for a statement from the Attorney General's Office in investigating corruption cases in the Procedural Law of the State Administrative Court. The conclusion of the research results is that the limit of abuse of power which is the absolute competence of the State Administrative Court is a decision and / or action as normalized in the Administrative Law and the Government Administration Law. The absence of procedural norms on abuse of authority in the Administrative Court Law makes Judges and Lawyers inaccurate in determining the legal basis for placing the Prosecutor's Request for Information as an object in the application for abuse of power when case Number : 25 / G / 2015 / PTUN-MDN is rolling in the Medan State Administrative Court . The norm vacancy is filled by Supreme Court Regulation Number 4 of 2015 which limits the absolute competence of the State Administrative Court in applications for abuse of power after the results of the Supervision of Government Internal Supervisory Apparatus and prior to criminal proceedings. The Prosecutor's Request for Information issued based on the provisions of the Criminal Procedure Code (KUHAP) cannot be placed as an object based on the norms of Article 2 letter d of Law Number 9 of 2004, so the author advises the President and / or the House of Representatives to design amendments to the Administrative Law so that it is harmonious with the new norms presented by the Government Administration Law and it is hoped that Judges and Lawyers as law enforcers and justice carry out the norms of the Law ethically so that they do not get lost in determining the object of the application for abuse of power. 

scholarly journals ADMINISTRATIVE DECISIONS WITH POTENTIAL LEGAL CONSEQUENCES AS OBJECT OF DISPUTE IN THE STATE ADMINISTRATIVE COURT

2020 ◽  
Vol 3 (1) ◽  
pp. 1-18
Author(s):  
Muhammad Amin Putra
Keyword(s):  
Research Method ◽  
Secondary Data ◽  
The State ◽  
Legal Research ◽  
Government Administration ◽  
Secondary Sources ◽  
Judicial Practice ◽  
The Government ◽  
Legal Consequences ◽  
Administrative Responsibility

Since the enactment of Law No. 30 of 2014 concerning Government Administration, there have been many dynamics of changes in judicial practice in state administrative courts, especially in relation to the object of dispute. One of them is regarding Decisions with Potential Legal Consequences as regulated in Article 87 of the Government Administration Law. The problems that arise are related to the accountability of officials, and also to the declarative decisions and constitutive decisions that are regulated in Article 54 of the Government Administration Law. In this paper it is found that officials who issue declarative decisions are not necessarily free from administrative responsibility and the validity of their decisions is determined by the validity of constitutive decisions (as decisions that have the potential to have legal consequences) on which the declarative decisions are issued. This paper uses a normative-legal research method, namely using secondary data in the form of primary and secondary sources of law, both applicable laws and related literatures.

scholarly journals Perkembangan Gugatan Perbuatan Melanggar Hukum oleh Pemerintah Pasca-Undang-Undang Nomor 30 Tahun 2014 (Development of Lawsuit for Law Violation by the Government Post Statute/Law Number 30 of 2014)

2020 ◽  
Vol 11 (1) ◽  
Author(s):  
Bagus Oktafian Abrianto ◽  
Xavier Nugraha ◽  
Nathanael Grady
Keyword(s):  
Legal Protection ◽  
The State ◽  
District Court ◽  
Judicial Decision ◽  
Government Administration ◽  
The Past ◽  
Procedural Law ◽  
Good Will ◽  
The Absolute ◽  
The Government

The existence of a lawsuit for unlawful acts by the authorities (onrechtmatige overheidsdaad) is one of the means of providing legal protection for the citizens from actions (handling) carried out by the government. Over time, the concept of onrechtmatige overheidsdaad has develops dynamically. The change in the concept of the State Administrative Decree in Article 87 of Law Number 30 of 2014 concerning Government Administration has caused an onrechtmatige overheidsdaad lawsuit which was once the absolute competence of the District Court, and now became the absolute competence of the State Administrative Court. This research attempts to explain the changes in the regulation and changes in the concept of onrechtmatige overheidsdaad after the enactment of Law Number 30 of 2014. The transfer of authority to examine onrechtmatige overheidsdaad lawsuit from the general court to the state administrative court has various juridical consequences, ranging from changes in procedural law, petitum and posita. One of the important consequences is a change related to the implementation or execution of the judicial decision, where in the past, when an onrechtmatige overheidsdaad lawsuit was an absolute competence of a district court, the implementation of the decision depended on the good will of the government. However, after becoming absolute competence of the Administrative Court, there is a mechanism of forced efforts so that the decision can be carried out by the relevant government agencies (defendants).AbstrakKeberadaan gugatan perbuatan melanggar hukum oleh penguasa (onrechtmatige overheidsdaad) merupakan salah satu sarana pelindungan hukum masyarakat atas tindakan (handeling) yang dilakukan oleh pemerintah. Adapun konsep mengenai onrechtmatige overheidsdaad berkembang secara dinamis dari waktu ke waktu. Perubahan konsep Keputusan Tata Usaha Negara (KTUN) di dalam Pasal 87 Undang-Undang Nomor 30 Tahun 2014 tentang Administrasi Pemerintahan, menyebabkan gugatan onrechtmatige overheidsdaad yang dahulu merupakan kompetensi absolut Pengadilan Negeri, berubah menjadi kompetensi absolut Pengadilan Tata Usaha Negara. Penelitian ini berusaha memaparkan mengenai perubahan pengaturan dan perubahan konsep onrechtmatige overheidsdaad pasca berlakunya Undang-Undang Nomor 30 Tahun 2014. Beralihnya kewenangan untuk memeriksa gugatan onrechtmatige overheidsdaad dari lingkungan peradilan umum ke peradilan tata usaha negara memiliki berbagai konsekuensi yuridis, mulai dari perubahan hukum acara, petitum, dan posita. Salah satu konsekuensi yang cukup penting adalah perubahan terkait dengan pelaksanaan putusan atau eksekusi. Dahulu, gugatan onrechtmatige overheidsdaad merupakan kompetensi absolut pengadilan negeri, sehingga pelaksanaan putusan tergantung dari itikad baik (good will) dari pemerintah. Pasca-beralih ke kompetensi absolut PTUN, terdapat mekanisme upaya paksa agar putusan tersebut dapat dijalankan oleh instransi pemerintah terkait (tergugat).

Agencification in Public Administration

2021 ◽  
Author(s):  
Koen Verhoest ◽  
Sandra van Thiel ◽  
Steven F. De Vadder
Keyword(s):  
Public Management ◽  
New Public Management ◽  
The State ◽  
Private Law ◽  
New Public ◽  
New Development ◽  
Legal Identity ◽  
The Government ◽  
Type 3 ◽  
And Control

Agencification is the creation of semi-autonomous agencies: organizations charged with public tasks like policy implementation, regulation, and public service delivery, operating at arm’s length from the government. Although not a new development, agencification became very popular from the 1980s on as part of the New Public Management reforms. Three types of agencies can be distinguished, based predominantly on their formal legal features. Type 1 agencies have some managerial autonomy but do not have their own legal identity separate from the state or their parent ministry. Type 2 agencies are organizations and bodies with managerial autonomy that have their own legal identity separate from the state or their parent ministry. Type 3 organizations have their own legal identity vested in, and defined by, private law and are established by, or on behalf of, the government in the form of a private law corporation, company, or a foundation, but they are predominantly controlled by government and are at least partially involved in executing public tasks. Specific characteristics of agencies differ between countries and findings show few systematic patterns: similar tasks are charged to different types of agencies. A crucial element in the functioning of agencies is the formal and de facto interplay of autonomy and control, and how this can be explained in a static and dynamic way. Studies about agencification list three main categories of its effects: economic, organizational, and political effects. However, there is still a lot that needs to be studied about agencification, its forms, and its effects.

scholarly journals VIII.—On the Centuriation of Roman Britain

Archaeologia ◽  
1869 ◽  
Vol 42 (1) ◽  
pp. 127-160
Author(s):  
Henry Charles Coote
Keyword(s):  
Western Europe ◽  
Great Part ◽  
The State ◽  
Roman Britain ◽  
Public Property ◽  
Absolute Property ◽  
The People ◽  
History Of ◽  
The Absolute ◽  
The Government

The civilization which Western Europe received at the hands of Rome was due in great part to the colonies planted by her in every subjected portion of it. It may, therefore, be neither trivial nor uninteresting to inquire whether that colonisation extended itself and its benefits to this country also. Throughout the history of Rome conquest preceded colonisation. The land of a conquered nation, if the Roman government insisted upon its right, became the absolute property of the Roman people. Belonging from that time to the State, it could be retained by the Government as public property (i. e. in fact and etymology the property of the people,) to be used for the support and relief of the finances, or it could, by an act of the Legislature, be granted and appropriated to private individuals, of course a portion of that people or their privileged allies.

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