Global Jurist最新文献

{"title":"Forms of Supervision and Control Over Compliance with Labor Legislation and Labor Standards in Ukraine","authors":"M. Inshyn, T. Vakhonieva, Andrii Korotkykh, A. Denysenko, O. Deneha","doi":"10.1515/gj-2020-0017","DOIUrl":"https://doi.org/10.1515/gj-2020-0017","url":null,"abstract":"Abstract The article analyzes forms of supervision and control over the compliance with labor legislation and labor standards in Ukraine in relation to the concept of inspection. The procedure for exercising control and supervisory functions is investigated and the powers of the entities exercising them are determined. The article analyzes theoretical and legal nature of the state and public supervision and control over the compliance with the labor legislation of Ukraine. The study reviews foreign legislation in the sphere of supervision and control over the compliance with labor legislation and legislation on labor protection. The study also correlates the latter with Ukrainian labor legislation. In the course of the research, the modern tendencies and problems arising in the process of improving Ukrainian legislation are identified, along with ways of overcoming them. Namely, the temporal legal conflict is identified, characterized by the simultaneous effect of two acts of equal legal force.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"21 1","pages":"247 - 272"},"PeriodicalIF":0.0,"publicationDate":"2020-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2020-0017","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45930394","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Procedural and Judicial Guarantees Against the Punitive Power of Public Bodies","authors":"G. Martini","doi":"10.1515/gj-2020-0030","DOIUrl":"https://doi.org/10.1515/gj-2020-0030","url":null,"abstract":"Abstract The scope of this analysis is to reconstruct, with a brief look to the Italian case, the ‘frame of reference’ within which the rulings of the ECtHR on the Art. 6 of the ECHR, due to the particular strength that Article 46 of the Convention attributes to them, are made, to understand, at the outcome, how, and to what extent, the sanctioning activity of public bodies can be influenced by the principles of the ECHR as enforced by the Judges of Strasbourg. To this aim the focus will be addressed on the following, and more complex, profiles: (a) independence, impartiality and separation of functions; (b) sanctioning activity and discretionary powers; (c) sufficient judicial review and full jurisdiction, to conclude the investigation trying to verify, in the light of the latest directions taken by the ECtHR; (d) whether, and how, the types of sanctions can affect the conditions of the judicial protection.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"21 1","pages":"211 - 246"},"PeriodicalIF":0.0,"publicationDate":"2020-09-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2020-0030","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42968074","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Effectiveness of Administrative Detention of Migrants in Relation to Return Rates: A Compared Analysis along States of EU South Frontier: Italy, France, Greece and Spain as Cases Study","authors":"Luca Falsone","doi":"10.1515/gj-2020-0028","DOIUrl":"https://doi.org/10.1515/gj-2020-0028","url":null,"abstract":"Abstract Administrative detention has gradually become a fundamental instrument in migration policies of European States. The law generally assigns to this measure a key role in supporting removal procedure. On the other hand, administrative detention has been recognised as a symptom of the crimmigration crisis. This article aims to challenge the expected benefits of administrative detention as an effective measure to guarantee the enforcement of removal procedures, analysing available data of imprisonments and removals relative to Italy, France, Spain and Greece in the period of time 2014–2019.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"21 1","pages":"143 - 164"},"PeriodicalIF":0.0,"publicationDate":"2020-08-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2020-0028","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46474484","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Chinese Advantage in Emergency Law","authors":"U. Mattei, Guanghua Liu, E. Ariano","doi":"10.1515/gj-2020-0032","DOIUrl":"https://doi.org/10.1515/gj-2020-0032","url":null,"abstract":"Abstract This Article has a twofold purpose. On the one hand, it offers comparative materials for an informed discussion of COVID-determined emergency law in China and Italy by assessing its normative implications and political genealogy. On the other hand, it explores the essential contiguity between the ‘state of exception’ triggered by the pandemic and the possible geopolitical shifts in global legal hegemony in the actual phase of surveillance capitalism which is witnessing a decline of law as a form of social organization and its replacement by the predictive models elaborated by technology. In this respect, the traditional Western iconography has long described the Chinese legal tradition as a “law without law”, a despotic regime with intrusive population surveillance whose distance from the Western paradigm is deemed almost unbridgeable. And yet the legal response to coronavirus both in Europe and in the U.S. somewhat replicates the allegedly distant Chinese model in terms of restrictions and surveillance mechanisms which are being deployed to counter the crisis in the face of a formal commitment to the rule of law. This Article concludes that the emerging pre-eminence of the “rule of technology” over the “rule of law” in a critical event of historic proportions like a pandemic should and will set the future agenda of comparative studies in a double direction. On the one hand it calls for a truly critical reconsideration of role of law in society which in turn impels to rethink the hold of the liberal constitutional model and the obsolescence of traditional legal taxonomies. On the other hand, it might point to the emergence of an unexpected Chinese legal leadership, determined by the progressive undoing of the Western legal and political narratives whose backbone has been relentlessly eroded by decades of neoliberalism and populism.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"21 1","pages":"1 - 58"},"PeriodicalIF":0.0,"publicationDate":"2020-08-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2020-0032","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42936582","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Access-to-Justice Reforms: A Brazilian Case Study of Bank Litigation Related to Heterodox Economic Plans","authors":"Helena C. Refosco","doi":"10.1515/gj-2020-0018","DOIUrl":"https://doi.org/10.1515/gj-2020-0018","url":null,"abstract":"Abstract Between 2003 and 2016, Brazil carried out a World Bank-inspired “rule-of-law” reform that has failed to substantially increase access to justice. To buttress such a disheartening conclusion, this paper includes a case study of Brazil’s biggest litigation ever, which centered on the losses that bank customers had incurred because of heterodox national economic plans implemented in the late 1980s and early 1990s. By showing that the system of binding precedents consolidated in the reform ended up favoring “repeat players” over “one-shotters” in this litigation, this paper seeks to explain how institutional reforms that fail to tackle deep inequalities may backfire.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-07-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2020-0018","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48272492","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Challenges to the Assessment of Damages Claims Involving Crypto-Assets in Investment Arbitration","authors":"Aveek Chakravarty","doi":"10.1515/gj-2019-0044","DOIUrl":"https://doi.org/10.1515/gj-2019-0044","url":null,"abstract":"Abstract This article addresses the particular challenges involved in valuing various types of crypto-assets as investments under treaty-based investment arbitration. The interaction of the international investment protection regime with crypto-investments has largely remained un-examined, even though increasing amounts of foreign investments have flown into the development of crypto-assets its related markets. The existing investment treaty regime is set to face significant challenges in grappling with crypto-assets as investments due to several distinct features that differentiate them from traditional asset classes. This issue is explored further in the article from the perspective of the principles governing damages under international law.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2019-0044","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47837009","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Adjudicating Cryptocurrencies at the WTO: Potential Threshold and Substantive Issues","authors":"Sandeep Thomas Chandy, Prakhar Bhardwaj","doi":"10.1515/gj-2019-0046","DOIUrl":"https://doi.org/10.1515/gj-2019-0046","url":null,"abstract":"Abstract Taking Venezuela’s complaint against the United States at the World Trade Organisation (“WTO”) as the inflection point, this Article will explore whether a characterisation of cryptocurrencies as a ‘currency’ (similar to a fiat currency) would ensure that cryptocurrencies are not covered by WTO disciplines on goods and services. Despite customary international law principles such as ius cudendae monetae and the persuasive argument that a ‘currency’ is neither a good or service – the Article answers this question in the negative. It will divide issues that can arise during such a WTO dispute into three categories: threshold, substantive and compliance issues. Threshold issues would involve interpretative challenges to determine whether the General Agreement on Trade in Services (“GATS”) and General Agreement on Tariffs and Trade (“GATT”) regulate cryptocurrencies. Since the GATS Schedule of Commitments has historically been interpreted in a technologically neutral manner, identifying cryptocurrencies as a ‘service’ may not prove to be insurmountable. However, the claim that cryptocurrencies are barter goods that will be subject to disciplines of the GATT deserves critical scrutiny – more so because the GATT regulates tangible products and contains specific provisions relating to balance-of-payments. The Article also undertakes a theoretical analysis of the heterodoxical nature of the cryptocurrency to evaluate whether it can be classified as a ‘security’ within the meaning of the GATS’ Annex on Financial Services. These threshold issues are, however, the tip of the iceberg. Once a WTO Panel commences its analysis, the substantive issues for consideration would involve determining whether a unique product such as cryptocurrencies has a ‘like product’ in the respondent Member’s market. Further, the Panel’s analysis would involve a consideration relating to ‘general exceptions’ under Article XIV, GATS or Article XX, GATT which would entail an examination of whether the measure was necessary to achieve, amongst other regulatory objectives, either compliance with domestic regulations or the maintenance of public order. If the measure adversely impacting cryptocurrencies is determined to be WTO-inconsistent, issues of compliance and suspension of concessions are imminent. WTO Panels have historically estimated the . quantum of suspensions of concessions by determining the trade volumes affected by the WTO-inconsistent measure and factoring it for a future time period. The decentralised nature of the distributed ledger technology underlying cryptocurrencies complicates any country-specific quantification of the impact on trade volumes of cryptocurrencies affected by the WTO inconsistent measure. Accordingly, determining suspensions of concessions in relation to cryptocurrencies would require significant judicial innovation by the arbitrator. Adjudicating Cryptocurrencies at the WTO: Potential Threshold and Substantive Issues.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2019-0046","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44336475","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Will Blockchain Technologies Strengthen or Undermine the Effectiveness of Global Trade Control Regulations and Financial Sanctions?","authors":"F. Cozzi","doi":"10.1515/gj-2019-0047","DOIUrl":"https://doi.org/10.1515/gj-2019-0047","url":null,"abstract":"Abstract Financial sanctions and trade control regulations are becoming increasingly relevant in the current global situation, characterized by multiple ongoing conflicts, sophisticated terrorist organizations, and serious tensions between international economic actors. The United Nations, under Article 41 of the UN Charter, the United States and Europe, in particular, regularly introduce and enforce a number of tools (e. g., financial restrictions, trade restrictions, arms embargoes, travel bans). Such tools can range from comprehensive, “territory-wide” sanctions against States to targeted sanctions on entities, including individuals, to obtain a change in policy or activity by the target country, part of the country, governments, entities, and individuals, with the ultimate aim of pursuing peace, human rights, democracy, and respect for the rule of law. Recent history proves that companies and financial institutions have adopted complex solutions to conceal transactions with sanctioned countries and entities. Blockchain technology, through the use of distributed digitalized ledgers, grants a high level of transparency, for instance providing real-time updates on the development of an export transaction, and the use of smart contracts can automatize payments, or the triggering of guarantees, etc. While blockchain technology continues to be an area of enormous promise, it is also one of risk, if not managed properly, especially in a transnational, multi-jurisdictional context. Not only might the use of blockchain-based solutions prove challenging for the enforcement of current international sanctions programs by competent authorities, but blockchain technologies developers will also need to set up solutions suitable to comply with the requirements imposed by the various sanctions in place. At the same time, businesses will need to determine which measures and due diligence practices are needed to protect against the risks of a sanctions violation, which can result in significant fines and even criminal penalties. This paper explores how blockchain solutions that may be implemented in the context of international financial and commercial transactions can interrelate (or interfere) with sanctions enforcement and sanctions compliance, highlighting the multiple legal issues that may arise in connection thereto.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2019-0047","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44107191","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"International Economic Law in the Era of Distributed Ledger Technology","authors":"Jose Gustavo Prieto Muñoz, A. Viterbo, A. Oddenino","doi":"10.1515/gj-2020-0037","DOIUrl":"https://doi.org/10.1515/gj-2020-0037","url":null,"abstract":"","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2020-0037","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47887014","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Narratives of the Digital Economy: How Platforms Are Challenging Consumer Law and Hierarchical Organization","authors":"A. Quarta","doi":"10.1515/gj-2020-0026","DOIUrl":"https://doi.org/10.1515/gj-2020-0026","url":null,"abstract":"Abstract Digital platforms are the essential infrastructures of electronic commerce, online communication, and digital social relationships. They connect two interdependent groups of web users (parties offering goods, services, and digital content; and parties interested in accessing this supply) and enable their transactions. Moreover, they provide additional services such as online payment, collection of reviews and feedback, and internal instant messaging. However, the term “platform” can be misleading, since it seems to denote a virtual space or a technical tool without legal personality. In other words, platforms are masking corporations who hide behind them in order to avoid the legal responsibilities stemming from their status as social institutions. This exploits the dominant theory of the firm as a nexus of contracts and is intended to release the agents involved in the system of production from the restrictions that protect weaker parties in the age of industrial capitalism. Companies who organize production through platforms thus obtain both indirect and direct benefits. In particular, indirect benefits derive from making consumer law more complicated to apply by creating conditions that frustrate the traditional distinction between professionals and consumers. In fact, any user can provide services and sell or share their personal goods (e.g., cars, apartments, clothes, etc.) and other commodities through platforms. However, this does not mean that information asymmetries do not continue to exist, or that weaker parties do not need to be protected. This confusion benefits companies that enable these transactions, since online relationships are not burdened by informative duties. In this case, companies use the platform narrative to facilitate peer-to-peer transactions, where simple, ubiquitous exchanges yield advantages. In addition, platforms provide direct benefits by eliminating the hierarchical organization of their production system in order to adopt the least burdensome and most flexible forms of employment. Companies generally rely on ICT tools to show that the parties offering the service are independent and are not subject to their control. The platform narrative glosses over the labor exploitation issues generally referred to as “uberification”. In addressing the questions outlined in this introduction, the paper will be organized as follows. Part I will discuss how the platform economy is challenging consumer law by short-circuiting its legal grounds in ways that allow companies to benefit. Part II will focus on the direct effects of the platforms’ denial of hierarchical organization: starting from the Italian Supreme Court’s ruling in the Foodora lawsuit, we will explore emergent models for organizing the system of production and their impact on the main categories of private law.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2020-0026","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49160133","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}