Tribuna Juridica

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• Problems of implementation of whistleblower institution in Ukraine

  The article deals with the study of problems regarding prevention of corruption. Based on the studies of national and foreign research papers, the authors proved that such problems became the most urgent themes of modern scientific researches. The origin of the concept of "corruption" was analyzed; it has been stated that different approaches to the definition of corruption are based on legal or normative aspects, and those based on social aspects are different from those based on the understanding of the public service and social interests. It has been proved that one of the most effective tools for combating corruption in the world is using whistleblowers. The main problems of whistleblowers implementation in Ukraine were studied. It has been noted that Ukrainian society ambiguously perceives the whistleblowers institution. Rejecting of corruption whistleblowers by the society negatively affects the effectiveness of preventing this phenomenon. The authors have analyzed social and political problems concerning creation of anti-corruption court in Ukraine and its possible positive influence on the effective process of combating corruption

• Fiscal legislation and protection of the environment on the European and national level. Relevant jurisprudence of the European Court of Justice and the Constitutional Court of Romania

  Legal fiscal tools may represent a "powerful engine" to strengthen environmental protection. They mainly refer to eco-taxes, reduction and/or exoneration of taxes, taxes dedicated to actions in favor of the environment protection. Relevant examples on the "internalization" of related costs through taxation, as well as para-fiscal taxes may be offered, together with a perspective of new fiscal policies developed on international and European level. In Romania, several legislative acts in the respective area have been adopted and implemented, starting with 2008, followed by several decisions of the national courts, as well as relevant judgments issued by the European Court of Justice (CJEU), declaring the national legislation as being incompatible with the texts of the Treaty. A legal provision of the European law may be used within the framework of the review of constitutionality, as an indirect rule of reference, pursuant to Art. 148(2) and (4) of the Constitution of Romania

• Perspectives of evolution of legal solutions concerning entrusting by local self-government units the public tasks to perform with other entities against the background of Polish law

  On the local self-government units - municipalities, counties and voivodships - exercising public administration in Poland on the principle of decentralization of public authority, there are numerous public tasks to perform, including in particular the own tasks serving the collective needs of members of local self-government community. These tasks could be carried out by local self-government units using their own entities - organizational units, budgetary establishments, as well as municipal companies created - but could also be entrusted to perform with other, separate entities, especially non-public entities. The forms of entrusting by local self-government units the tasks with entities outside self-government structure are regulated by Polish Act of 1996 on municipal economy. The provisions of this Act were subject to several amendments in the analyzed scope. With entrusting by local self-government units the public tasks to separate entities, especially non-public entities, there are connected numerous problems that have not been solved so far. They concern the subjective scope of entities to which it is possible to entrust public tasks by self-government units, the basis and nature of the entrustment, the scope of entrustment, the legal status of the entity entrusted with tasks, obtained as a result of entrusting public tasks, the principles on which the entrustment is based, the effects of entrusting, the responsibility for performing the entrusted tasks. Taking the above into account, the scientific purpose of the research is an identification and determination of specific problems related to entrusting the performance of public tasks by local self-government units with separate entities, especially private entities, against the background of Polish law and determination of the perspectives of evolution of legal solutions concerning such entrusting

• Legal regulation of procedure for advance pricing agreements in Ukraine

  Advance pricing agreements (APAs) are globally widespread as an instrument of providing the balance of interests between bona fide taxpayers and fiscal authorities. Ukraine has attempted to use such instrument since the introduction of the transfer pricing control. Nevertheless, no APA has yet been concluded in Ukraine. The authors use methods of comparative legal analysis, historical analysis and legal modelling to describe the evolution of the normative regulation of the procedure for APAs and reveal the factors which have impacted on the attractiveness of APAs for taxpayers. There are also a few propositions on improvement of the procedure for APAs in Ukraine, which are formulated on the basis of best practices of developed and developing countries. Proposed changes concern the opportunity to revise APAs, the introduction of special features in the procedure for APAs in case of their bi- or multilateral character and the alignment of the access to the procedure for APAs in Ukraine

• A comparative study of the statutory prohibition of insider trading in Namibia and South Africa

  Insider trading is statutorily prohibited in both Namibia and South Africa. Nonetheless, insider trading activities are reportedly still occurring with some degree of frequency in the Namibian and South African financial markets. Given this background, the article comparatively explores the regulation of insider trading in Namibia and South Africa. This is done to investigate and scrutinise the adequacy of such regulation. In this regard, the relevant provisions, penalties, remedies and other enforcement approaches contained in the Namibian and South African anti-insider trading legislation are discussed. The authors submit that the Namibian anti-insider trading regulatory framework is relatively more flawed and inadequate than that of South Africa. Accordingly, the article discusses the statutory prohibition of insider trading in Namibia prior to, and subsequent to 2004 in order to isolate such flaws. Thereafter, recommendations and enforcement approaches that could be incorporated in the relevant Namibian insider trading laws from the South African anti-insider trading regulatory framework are briefly discussed

• Commercial law in Macedonia after 1990

  With the Declaration of Independence of 17.11.1991 and the entry into force of the Constitution on 20.11.1991, Macedonia was free to draft its own legislation. But the difficult internal and external situation, the unofficial imposition of the Greek embargo since the end of 1991, and the UN embargo on Yugoslavia, which brought losses of US $ 80 million a month to the new state, had a negative impact on the legislative process3. The 1990 (!) amended Yugoslav company law of 1988,4 which replaced the Organization of Associated Labour as a basic economic subject with the "commercial companies" as a new legal concept,5 organized the economic life in public companies and limited liability companies. All Art.s that regulated the economic organizations in Yugoslavia were abolished. This amendment was in force until 30.5.1996. In this sense, main objective of this manuscript is the analysis of the commercial law reforms in Macedonia after the fall of communism towards a free market economy and EU membership

• Much ado about the Post-Chicago School

  In the middle of the 80s, an economic approach, that brings together a group of academics that stand out by the harsh criticisms to the approach of the School of Chicago towards competition, arouses interest among the scholars. This school will call into question some of the foundations and justifications presented by the Chicago School, by questioning, in first place, the single monopoly profit theory. In this sense, these authors will develop a set of models designed to demonstrate that the monopolist in the primary market has incentives to monopolize the secondary market. This School will also analyse the vertical restraints, standing out the development of Raising Rivals' Costs Theory and offer an explanation for free-riding. The Chicago School, on the other hand, is a coherent and heterogeneous economic school, responsible for the theory of oligopoly and collusion, which, by advocating the criminalization of price fixing, proceeded to analyse the anticompetitive effects of predatory pricing and various restrictions vertical. In this paper, we aim at demonstrating that the roots of the Post-Chicago School go back to the Chicago School, highlighting the contributions of Director and Levi in the construction of the Raising Rivals' Cost Theory and, considering the connection between the Chicago school and Transaction Costs Economics, the most complete empirical analysis of this theory led by Elizabeth Granitz and Benjamin Klein. The continuous omission of the Transaction Costs Economics, considering the steadiness between both, is one of the most negative aspects of this school, which can only be explained by the fact that heterogeneity of the Chicago School and Transaction Costs Economics unmask much of the criticism knitted. Post-Chicago School, as we will conclude, will be incapable of thwarting the ideological premises of the Chicago School

• Overview on the legal instruments of the Council of Europe in the field of administrative law

  The interest in administrative justice has been growing in many countries recently. At the core of an accountable and transparent administration is the right to effectively challenge acts and decisions that affect civil rights and obligations, and so also the daily life of individuals. Effective means of redress against administrative decisions require a functioning system of administrative justice that provides fair trial guarantees. Administrative justice is not limited to the guarantee of citizens’ rights. Its justification also lies in the necessity to defend the public interest and to guarantee a balance between individual rights and the public interest. An administrative-court proceeding should be public, held within a reasonable time, undertaken by an independent and impartial tribunal established by law, and result in an enforceable judgment that shall be pronounced publicly. In addition to interpreting the rights, the Strasbourg Court has pointed out that it must be borne in mind that the European Convention on Human Rights (ECHR) is intended to guarantee rights that are practical and effective. This paper will analyze the certain provisions of the European Convention on Human Rights regarding mainly with the right to a fair trial and the right to an effective remedy and will try to give a concise retrospective to some of the most interesting cases of administrative nature decided by the European Court of Human Rights. Further, it will emphasize the framework of the Council of Europe of existing and applicable recommendations in the area of administrative law starting with alternative ways of resolution of administrative disputes and giving closure with execution of administrative and judicial decisions

• Protecting the rights of foreigners to investment in Ukraine - attractive land plots

  The normative legal acts that define the basic guarantees and which are based on protection of foreign investments in Ukraine are analyzed. The emphasis is on the special legal regime of economic activity in the special (free) economic zones, on the territory of which are implemented preferential customs, monetary, financial, tax and other conditions of economic activity of foreign legal entities and individuals. It is determined that industrial parks are one of the most common types of special economic zones. The procedure of acquiring ownership of land plots, which is planned to be used for creation and functioning of the industrial park and subjects of the special regime of management within the industrial park, is considered

• The impact of the new Chinese Foreign Investment Law 2019 on the administrative legal system governing foreign investments and implications for the investment relations with Lusophone Markets

  In March 2019, China revamped its domestic legal regime governing foreign investments with a new Foreign Investment Law that will enter into force in 2020 (‘FIL- 2019’). The paper examines how the new law impacts the administrative control of foreign investments in China. Given the past approach of China, using administrative legal measures in diverse legal instruments to regulate foreign investments, how the FIL 2019 abolishing/consolidating those instruments increases or decreases the scope of administrative control of foreign investment is an intriguing question facing foreign investors and administrative law scholars alike. In a similar vein, the potential implications of the new FIL 2019 upon specific foreign investment relations becomes equally significant. The FIL 2019 could not only trigger new reciprocity concerns viz-a-viz certain host states of Chinese outward investments, but also may demand the revision of some existing Chinese BITs with foreign states. The paper makes a brief reference regarding the general implications of the new law upon the investment relations with specific Lusophone host markets (for which, Macau SAR is the official facilitator of Economic Relations). Based on the findings, the paper concludes with a discussion on some future course

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• The distribution contracts: an Iberian approach

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• La notion de bail professionnel en droit OHADA et ses implications sur la théorie générale du fonds de commerce

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• Iceland, the EFTA Court and the indexation of credit to inflation: operating in nature ex-post but need to calculate and disclose ex-ante.A law of contradiction?

  Indexation of credit to inflation (ex-post) is a unique legal practice in Iceland based on valorism theory on money vs. nominalism. Two rulings issued in 2014 by the EFTA Court try to clarify the legality and fairness of this particular price-variation clause under the European Economic Area...

• Perspectives of evolution of legal solutions concerning entrusting by local self-government units the public tasks to perform with other entities against the background of Polish law

  On the local self-government units - municipalities, counties and voivodships - exercising public administration in Poland on the principle of decentralization of public authority, there are numerous public tasks to perform, including in particular the own tasks serving the collective needs of...

• Legislative inflation - an important cause of the dysfunctions existing in contemporary public administration

  The study analyzes one of the major causes of the malfunctions currently in public administration: legislative inflation. Legislative inflation (or normative excess) should be seen as an unnatural multiplication of the norms of law, with negative consequences both for the elaboration of the...

• Objective contentious matters in Romania and their unexplainable vulnerabilities

  The objective contentious matters should be a lethal weapon for the administrative acts challenged at the court specialised in this kind of issues, because, unlike the subjective contentious matters, they do not depend - or at least they should not depend - on the plaintiff’s (which is, by...

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• Some considerations about the application of the more favourable criminal law regarding deeds on trial in some countries of European Union

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• Economic and labor rights in the European Union after Lisbon: an institutional approach

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