Bratislava Law Review

Publisher:
Faculty of Law of Comenius University (Bratislava)
Publication date:
2020-10-21
ISBN:
2644-6359

Issue Number

Latest documents

  • International Legal Aspects of the Assessment of Environmental Damage Caused by Military Actions

    Military actions not only cause massive human casualties and extensive destruction of homes, infrastructure, and other property, but also a significant environmental damage. It raises the issue of the importance of assessment of environmental damage as a necessary prerequisite for obtaining reparations. The paper analyses international legal documents which relate to the issue of assessment of the amount of environmental damage, as well as relevant decisions of international bodies in this sphere. A conclusion was made about the lack of a uniform approach to the assessment of amount of environmental damage, both in international documents and in international judicial practice. The necessity of the adoption of an international document that would establish the methodology which should be used during environmental damage assessment was proved. This paper should determine components of the environment deterioration of which should be compensated

  • In Search of Sustainable Finance - A Study of Practices on the Slovak Corporate Bond Market

    Financial market is expected to play an important role in transition towards more sustainable setup of the business environment. The European Commission published the EU’s Strategy for Financing the Transition to a Sustainable Economy in 2021, requiring the inclusion of environmental, social and governance considerations into investment decision making. Yet, small, open EU economies, such as Slovakia, are in a specific position when implementing this legal framework. For instance, Slovakia does not have any meaningful stock market to speak of, although its bond and collective investment markets perform better. To assess the adoption of sustainable finance elements and to assess the convergence on the Slovak bond market towards standard practice, we investigated current practices on the corporate bond market of nonfinancial corporations. We conducted our research through a review of corporate bonds prospectuses published during 2020-22, in which, to assess current market practices, we examined and evaluated selected criteria and indicators related to issuers and bonds and compared them. These criteria include for example issuer´s business and purpose of finance, form, yield, security, or transferability of bonds. We find that relevant variable criteria and indicators related to reviewed bonds, compared in our research, are similar, indicating that the market converged into a standard practice. Finally, we find almost no evidence of adoption of the sustainable finance elements although there are hints of market uptake of sustainable practices

  • Electronic Monitoring Is Not the Only Problem Here - The Challenges of House Arrest Application Practice in the Czech Republic

    Over the past 25 years, few alternative sanctions have received as much attention as electronically monitored house arrest. In the view of relatively dynamic development of electronic surveillance technologies and related ethical and legal issues at stake, this interest continues to this day. In the Czech Republic, electronically monitored house arrest was introduced in 2010. Somewhat oddly, the electronic surveillance system had not been implemented at the time. Yet, legislators and sanctions policy makers placed high hopes in this form of punishment. In particular, it was expected to significantly help combat the relentless hypertrophy of the prison population. But the expectations of sanction policy makers were not met due to the reluctance of the courts to impose house arrest. This had remained unchanged over the years, and opinions had begun to emerge that the state's failure to introduce electronic monitoring was primarily to blame. In 2019, electronic monitoring was eventually implemented, but the number of sentences imposed still did not increase. If the legislature's sanctions policy is not translated into practice, its aims cannot be achieved. For this to happen, it is essential that house arrest becomes more prevalent in the structure of sentences imposed. Increased application rates will not happen spontaneously; certain steps need to be taken to address the reasons for the current state of affairs and to mitigate factors that negatively affect application practice. For this purpose, such causes and negative factors must first be identified. This paper therefore examines the importance of electronic monitoring in terms of the application practice of house arrest in the Czech Republic, and the main reasons for not imposing house arrest. Building on these findings, it offers suggestions that would contribute to more frequent imposition of house arrest in appropriate cases

  • Administrative Contract in Administrative Matters - Slovenian Law in Comparative Perspective

    Administrative contracts are also known in Slovenian law, where they are mainly used as an instrument to regulate in more detail the (previously issued) administrative act, and generally cannot replace the issuance of an administrative act. Namely, the General Administrative Procedure Act only provides for settlement between parties with opposing (private law) interests. However, the elements of administrative contracts as an ADR mechanism can be found in other (sectoral) legislation, but are often very deficiently regulated, leading to the application of private law rules that govern contractual relations and which are not adapted to administrative law relations. Given all the advantages of alternative dispute resolution and shortcomings of the current legal framework, Slovenian law should also – while respecting all the specific features of administrative decision-making and following the example of selected comparative-law regimes – systematically regulate subordinate administrative contracts (replacing administrative acts), at least for some administrative matters. They should be limited only to those areas of administrative functioning where the administration has a certain margin of discretion in determining the content of the decision on the administrative matter. This means, on the other hand, that the possibility of a subordinate administrative contract should normally be excluded in the case of legally binding decision-making since the content of such a decision is predetermined and the administrative authority is bound by it (principle of legality). However, the administrative authority must have a specific power to conclude such a contract in a (sectoral) law – a general power to conclude subordinate administrative contracts is not sufficient due to the risk of infringing the principle of equality and legality

  • Cultural Property Protection in Private International Law

    The armed aggression of the Russian Federation against Ukraine has brought the issue of protecting cultural property to the forefront. Numerous documented cases of illegal exports of cultural property from Ukrainian museums located in territories occupied by the aggressor country have emerged. In addition, little is known about the number of stolen objects from private collections, which are considered cultural artifacts. There are no statistics available on this matter. This paper aims to explore the problem of applicable law during the consideration of disputes regarding the protection of cultural property. The author examines the concept of cultural property restitution in private international law and different approaches and concepts for defining "restitution" and "return" of cultural values. It has been argued that the term “return of cultural property” should encompass a wider scope, including both the restitution of illegally exported cultural property and the return of cultural property that was legally in the possession of another state but was later repatriated to the original state as a gesture of goodwill. The author offers his definitions of these terms based on theoretical research, as well as an analysis of the domestic legislation of Ukraine and the UNIDROIT Convention on Stolen or Illegally Exported Cultural Property of June 24, 1995. The paper also delves into the issues of conflict regulation of disputes involving cultural values. Both the issues of determining the right of ownership to and the problems associated with the protection of the right of ownership of cultural property in private international law are considered. The point of view that the conflict of laws rule lex originis (the law of the country from whose territory the cultural property was exported) should be applied in disputes regarding the return of cultural property from someone else's illegal possession is supported. The author concludes, based on a comparative analysis of laws on private international law, about the most appropriate mechanism for protecting the property rights of a bona fide purchaser in disputes over cultural property

  • Poland's Climate Policy - Selected Legal Aspects

    This paper aims to briefly present the climate policy in Poland, in selected critical areas from the author's perspective and that may accelerate or delay the just transformation. Climate policy should be a significant part of Poland's activities because Poland is one of the EU countries most dependent on fossil fuels, and the increase in carbon dioxide emissions is also disturbing. However, as the analyses show, the conclusions of various reports seem fully justified, and Poland is not correctly implementing its climate policy. This paper, the first in the series, first explains the basic concepts. Then it briefly presents the basics of the EU's climate policy. The last part concerns Poland's implementation of climate policy in selected areas. Renewable energy sources and air protection will be discussed first in the series. The final fragment contains unoptimistic conclusions with a simultaneous suggestion to undertake urgent work on the Climate Protection Act in Poland. The research was carried out using dogmatic, legal, and statistical methods to a narrow extent

  • Independent Fiscal Institutions as a Part of European Traditions

    Fiscal councils are independent public institutions aiming to promote the sustainability of public finances through various functions, such as assessing budgetary plans and their implementation or preparing budgetary and macroeconomic forecasts. Thus, synthesising the attempts made in the literature to define the concept of independent fiscal institutions, it should be emphasised that by providing an independent, impartial and objective assessment of fiscal policy and performance, they promote sound fiscal decisions and sustainable public finances. Independent fiscal institutions also reduce information asymmetries and promote transparency in public finances, thereby raising the reputation and electoral costs for governments that pursue imprudent policies or breach key commitments. As such, they can support contemporary states in addressing the tendency to increase spending and deficits. To better understand the contemporary factual and normative state of the analysed dissertation topic, it is worth tracing, even in some summary, the process of emergence and the directions of development and evolution of independent fiscal institutions. Although independent fiscal institutions are relatively new bodies in the political architecture of the vast majority of the EU Member States, a small group of countries pioneered the creation of these institutions. It is necessary to trace the systemic solutions that have determined the legal and constitutional status of fiscal institutions in recent decades in order to understand the factors that have led to their reassessment

  • Main Criteria for the Classification of Disinformation and Attempts to Criminalisation of Its Spread in Ukraine

    Based on the methodology of documentary review of scientific sources, available materials of public organisations, the judicial practices in investigating cases of disinformation spread, Ukrainian and foreign sources, the process of disinformation propagation has been researched. Using this approach, the main criteria for classifying disinformation by domains, objectives, methods, sources, forms, and channels were formulated. It was found that in Ukraine, there is still no unified legislative practice to counter disinformation, which leads to the uncontrolled application of manipulative processes and the dissemination of unreliable information by hostile intelligence services. Mass media and other channels of disinformation dissemination continue to evade the attention of law enforcement agencies, for instance, in the fields of economics, science, education, culture, and sports

  • ECtHR: Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (Application No. 53600/20, 9 April 2024) - Insufficient Measures to Combat Climate Change Resulting in Violation of Human Rights

    The present paper focuses on the analysis of the landmark decision of the European Court of Human Rights in which the Court has, for the first time, ruled on human rights violation due to climate change. It begins with the description of the convention as a so-called living instrument that aims at the interpretation of the European Convention on Human Rights taking into account the current social circumstances and challenges, such as the growing need for environmental protection and addressing climate change. In the judgment in question, the Court held that Switzerland had violated the applicant's rights due to insufficient legislative measures to protect individuals from the adverse effects of climate change. As a result of the long-awaited but unconventional conclusion, the judgment has become the target of much criticism. The paper thus concentrates on the main seemingly innovative or rather surprising pillars of the judgment, such as the court's determination of locus standi, the scope of a state's positive obligations in the context of climate change and its related margin of appreciation, as well as the unprecedented consideration of scientific evidence. The paper concludes by summarising the possible implications of the court's arguments for similar future cases, which will undoubtedly increase in number

  • Schmiegelt, Christian: Die historische Entwicklung der Eheverbote wegen Verwandtschaft und Schwägerschaft vom Reichspersonenstandsgesetz bis zum Eheschlieβungsrechtsgesetz (1875 bis 1998) Duncker & Humblot, 2023

    We would like to draw attention to a new German monograph that presents an extensive historical-theoretical probe of the problem of marriage impediment bound to kinship, affines, and sexual communion. Although it deals primarily with the development of German lawmaking since the promulgation of the Law on personal status (Reichspersonenstandsgesetz) from the year 1875 up to present reform opinions de lege ferenda, its theoretical scope could be extremely beneficial for all persons interested in marital law solely considering the comparative aspect

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