The Fundamental Right of Marriage in the Constitutions of European Countries

This study aims to present an overview the position of marriage in the constitutions of European countries. First, the origin of marriage as a fundamental right is looked at from a historical perspective, leading to different supranational instruments’ declarations. Subsequently, different approaches of the constitutions of European countries are scrutinised and classified depending on what protection, if any, is given to marriage. The spectrum spreads from defining marriage as protected by declaring it as a fundamental right to the lack of constitutional mention. For this broad overview, the scope of this work is based on the fact that all of these countries are parties to the Council of Europe, and the Rome Convention of 1950. Finally, a short exploration of some of the countries’ constitutional jurisprudence is carried out regarding the most controversial topics concerning the fundamental right to marriage.

NEEDLETIME: THE LONG AND WINDING ROAD

The article chronicles the long and winding road of the development of rights to royalties for performers from the recognition of a sort of potential right in the Berne Convention, through the different international instruments such as the Rome Convention, the TRIPs Agreement and eventually, for purposes of this article, the most important World Intellectual Property Organisation Performances andPhonograms Treaty (WPPT). It then proceeds to deal with the development of the law relating to performers’ rights in South Africa. It shows that, despite vehement objections from the National Association of Broadcasters (NAB), the Performers’ Protection Act and the Copyright Act were amended in 2002 and through these amendments a legislative framework for the protection of performers in South Africa was established. It concludes that, in spite of these legislative measures, the implementation of needletime has been controversial because of the vastly different interpretations of the empowering legislation. This has resulted in a delay in thepayment of needletime rights which has led to several judicial challenges that once settled, should hopefully bring a measure of legal certainty to this area of law.

Part I Legal and Practical Challenges to Traditional Trade Finance, 7 Letters of Credit and Stop Payment Orders Made in the Issuer’s Country

This chapter offers a critical examination of the significant, but largely unexplored, question whether, and to what extent, a foreign order restraining the issuing bank from making payment under a letter of credit can afford the issuing bank a good defence to a claim in a court outside that bank’s home jurisdiction. At common law, in England as well as in other jurisdictions, such as Hong Kong, Singapore and the US, such orders have only limited effect in the forum. This chapter argues that the approach of the English courts to article 4 of the Rome Convention of 19 June 1980 on the law applicable to contractual obligations meant that such orders could defeat a claim against the issuing bank in England only in very narrow circumstances. It goes on to examine the extent to which the changes introduced in article 4 of the Rome I Regulation of 17 June 2008 on the law applicable to contractual obligations have altered the position under English law, so that stop payment orders made in the issuer’s home jurisdiction may now have a much wider reach in England. The chapter contends that notwithstanding the amendments to article 4, in the specific context of letters of credit, the approach of the English courts under the Rome I Regulation is likely to be broadly similar to that under the Rome Convention. The Rome I Regulation has not (even unintentionally) opened the door to stop payment orders made in the issuer’s home jurisdiction.

Part 2 National and Regional Reports, Part 2.4 Europe: Coordinated by Thomas Kadner Graziano, 50 Ukraine: Ukrainian Perspectives on the Hague Principles

This chapter studies Ukrainian perspectives on the Hague Principles. Ukrainian private international law act, or formally the ‘Law of Ukraine “On Private International Law” ’ (PIL), was adopted on June 23, 2005. As per the Preamble to the PIL, it applies to ‘private [legal] relationships which are connected to one or more legal orders other than the Ukrainian legal order’. According to Article 2 of the PIL, it applies to matters of choice of law, procedural standing of foreign citizens, stateless persons and foreign legal entities, jurisdiction of Ukrainian courts in cases involving foreign parties, execution of letters rogatory, and recognition and enforcement of foreign court judgements in Ukraine. The Ukrainian private international law and specifically the PIL were influenced by the 1980 Rome Convention on the Law Applicable to Contractual Obligations. Although, considering the relative novelty of the Hague Principles, the authority of the courts to refer to the Hague Principles has not been addressed by the higher Ukrainian courts, the courts have frequently referred to the international codifications of contract law such as the UNIDROIT Principles of International Commercial Contracts.

7 Applicable Law and Jurisdiction

This chapter explores the law applicable to reinsurance. Section 2(1) of the Contracts (Applicable Law) Act 1990 provides for the incorporation of the 1980 Rome Convention on the law applicable to contractual obligations into the law of the United Kingdom. Article 1(4) of the Convention expressly provides that reinsurance contracts, unlike contracts of insurance, are subject to the rules of the Convention. However, the Convention does not have retrospective effect and therefore only applies to contracts entered into after April of 1991 when the Convention came into force. For a contract concluded before that date, the determination of its proper law depended and still depends on common law principles. At common law, the starting point is to investigate whether the parties have expressly selected a body of law at the time of contracting or whether such selection can be implied from the express terms of the contract. If the court is unable to ascertain the governing law from the contract it will then look to determine with which system of law the contract has the closest connection.

Implications of the Nigerian Broadcasting Code on Broadcast Copyright and Competition

The National Broadcasting Commission (NBC) in Nigeria recently released an amendment to the 6th edition of the Broadcasting Code. Its aim is to increase local content, generate advertisement revenue and prevent anti-competitive practices in the Nigerian broadcast industry. To this end, it prevents exclusivity or monopolisation of content by broadcasting organisations, including Pay TV and Video on Demand (VOD) platforms. Drawing from European and South African experiences, this article begins by examining the provisions of the Broadcasting Code, particularly the amendment vis-à-vis the Nigerian Copyright Act and Nigeria’s international obligations under treaties such as the Rome Convention and the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). It then looks at the impact of the amended Code on the broadcast industry. The article seeks to determine whether the provisions of the amended Code can qualify as limitations and exceptions to exclusive rights allowed under the treaties and the Nigerian Copyright Act. It also examines whether, in attempting to foster competition in the Nigerian broadcast industry, the amended Code has taken away the exclusive rights granted by the Copyright Act to owners of Pay TV and VOD platforms and thereby runs contrary to Nigeria’s international obligations. Where appropriate, recommendations are made for consultation among relevant stakeholders for review of the amended Code to align it with the Copyright Act and Nigeria’s international obligations.

El TEDH y la delimitación del secreto de las comunicaciones: un caso de recepción revisable

Convenio de Roma y Constitución española garantizan la inmunidad de espacios comunes de disfrute de derechos. Sin embargo, esta protección se lleva a cabo a través de normas de objeto disímil: tal es el caso, entre otros, de los arts. 8 CEDH y 18 CE. La disparidad de objetos protegidos condiciona al Tribunal Constitucional quien, por mandato constitucional (10.2 CE), debe interpretar los derechos fundamentales de conformidad con instrumentos internacionales, entre los que indiscutidamente se encuentra el CEDH. Se analiza la doctrina del TEDH y su integración por el TC en la delimitación del derecho fundamental al secreto de las comunicaciones. Se sugiere una revisión de la recepción practicada para la interpretación del art. 18.3 CE en dos aspectos: la protección de las comunicaciones finalizadas y de las conversaciones directas. The Rome Convention and the Spanish Constitution declare rights that seek to guarantee the immunity of common spaces for the enjoyment of rights. However, this protection is carried out through norms whose objects are not homogeneous: such is the case, among others, of arts. 8 ECHR and 18 CE. This difference of protected objects conditions the Constitutional Court that, by constitutional mandate (10.2 CE), must interpret fundamental rights in accordance with international instruments, among which is undoubtedly the ECHR. This paper analyzes the doctrine of the ECtHR and the way of integration practiced by the TC in the delimitation of the fundamental right to the secrecy of communications. In this sense, it is suggested that the reception of the doctrine of the ECtHR for the interpretation of art. 18.3 CE should perhaps undergo review in two aspects: the protection of completed communications and direct conversations

CONTRACTS, ILLEGALITY AND COMITY: RALLI BROS REVISITED

There has always been considerable uncertainty about the nature and scope of the rule by which contractual performance is excused if illegal in the place of performance, even though performance would not be illegal by the contract's governing law. This article revisits the so-called “Ralli Bros rule” and looks at how the scope of the rule has been developed and its nature misunderstood. It argues that the rule is neither a choice of law rule nor part of the rules discharging a contract for frustration but is instead a public policy rule favouring judicial abstention for reasons of comity. This has implications for how the rule interacts with the choice of law rules for contracts under the Rome Convention and the Rome I Regulation.