Review of European and Comparative Law, 2023, Vol. 53, No. 2
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Browsing Review of European and Comparative Law, 2023, Vol. 53, No. 2 by browse.metadata.rights "Attribution 4.0 International"
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- ItemADR in Sport on the Example of Association Football in Poland and Ukraine(Wydawnictwo KUL, 2023) Sławicki, Piotr; Kryzhanivskyi, ViktorThe subject of this article is the use of ADR in sports disputes in association football under the Polish and Ukrainian law. Professional and amateur sport generates various types of disputes related to both disciplinary and civil cases, an example of which may be disputes arising during the execution of contracts binding players and football clubs. In the first part, the scope of disputes that are subject to ADR in association football is outlined. The next part presents legal solutions adopted under the Polish law in this respect, of which the activity of the Football Arbitration Court of the Polish Football Association is a particular example. The last chapter is devoted to the Ukrainian perspective on the resolution of disputes in association football.
- ItemCriminal Mediation in Polish and Bosnian Legislation – Similarities, Differences, and Challenges in the 21st Century(Wydawnictwo KUL, 2023) Skrobotowicz, Grzegorz Adam; Kazić-Çakar, EnaWorldwide, mediation is one of the most used mechanisms of alternative dispute resolution across many fields of law and one of the most common forms of restorative justice. Although it brings advantages to criminal law, some criticize its potential application for certain types of crimes. However, its benefits seen through effectiveness, efficiency in reaching conflict solutions, and the positive impact on victims and perpetrators are irrefutable. Having that in mind, this article aims to conduct comparative research, discuss the functioning of mediation in criminal cases in Polish and Bosnian criminal law and present similarities and differences between their legal regulations. Mediacja jest jednym z najczęściej stosowanych na świecie mechanizmów alternatywnego rozwiązywania sporów w większości dziedzin prawa i jedną z najbardziej znanych form sprawiedliwości naprawczej. Choć ma swoje zalety dla prawa karnego, niektórzy krytykują jej potencjalne zastosowanie w przypadku niektórych rodzajów przestępstw. Jednakże korzyści płynące z jej stosowania, postrzegane poprzez skuteczność, efektywność w osiąganiu rozwiązań konfliktu oraz pozytywny wpływ na ofiary i sprawców, są niepodważalne. Mając to na uwadze, celem artykułu jest przeprowadzenie badań porównawczych i omówienie funkcjonowania mediacji w sprawach karnych w polskim i bośniackim prawie karnym oraz przedstawienie podobieństw i różnic pomiędzy tymi regulacjami prawnymi.
- ItemDo the Rules of Europe’s Leading Institutional Arbitration Courts and the UNCITRAL Arbitration Rules Need to Be Revised? Assessment from the Perspective of 2023(Wydawnictwo KUL, 2023) Asłanowicz, MarcinWhile some issues (e.g. the principles of service, the expedited procedure for resolving cases and the admissibility of securing a claim before initiating proceedings) are regulated in a manner that satisfies the requirements of 2023, other issues (e.g. the rules of holding remote hearings or the consequences of failing to meet deadlines in arbitration, in particular the deadlines for issuing an award) would require a number of modifications and improvements. This suggests that a postulate should be presented for a broader discussion within the community – both in Poland and abroad – on the shape of the regulations in this area that would be the most comfortable for the parties to the proceedings, the arbitral tribunals and the arbitral institutions, while respecting the basic (universal) arbitration rules.
- ItemHow is Mediation Integrated into the Dispute Resolution System of Civil Cases in Hungary?(Wydawnictwo KUL, 2023) Harsági, ViktóriaThe article deals with the integration of mediation into the Hungarian justice system, with particular attention to its historical aspects, the connection between litigation and mediation and the conditions for becoming a mediator, as well as the two types of mediation.
- ItemLegal Status and Acquisition of Mediator Qualifications. A Legal Comparative Analysis of Regulations in Spain and Poland(Wydawnictwo KUL, 2023) Dąbrowski, Marek; Broński, Włodzimierz; Rayón Ballesteros, María ConcepciónThe article aims to analyse the legal status and modes of acquiring qualification by mediators in Poland and Spain. The study uses the legal dogmatic and the legal comparative methods. The research problem is located in the applicable solutions in Polish and Spanish legislation implementing the objective set out by the content of Article 4 of Directive 2008/52/EC, which obliges EU Member States to ensure adequate quality of mediation and enhance the professional status of the mediator. An analysis of the legislation, judicature and the literature of the subject has shown that the normative regulations which are in force in Spain and Poland are convergent in terms of the objectives set out in Article 4 of Directive 2008/52/EC since they oblige mediators to be adequately qualified to conduct mediation. Notwithstanding the above, significant differences in the legal systems under analysis becomes apparent as concerns an array of legal instruments they apply to implement the Directive. The Polish and the Spanish methodologies display disparate procedures for regulating the acquisition of qualifications by mediators. They are affected by a number of shortcomings, resulting from an insufficient level of standardisation, including the intra legem gaps in the normative regulations in Poland. The outcomes of the analysis enable the conclusion that the regulations concerning the legal status and qualifications of mediators that are in force in Poland and Spain can complement one another, while preserving and respecting the distinctiveness of both legal systems. This complementarity can facilitate a development of an adequate model to enhance the professional status of mediators and improve the regulations so as to achieve the objective set in Article 4 of Directive 2008/52/EC.
- ItemMandatory Mediation in Family Disputes – An Emerging Trend in the European Union?(Wydawnictwo KUL, 2023) Korsakovienė, Indrė; Branimirova Radanova, Yuliya; Tvaronavičienė, AgnėThe Mediation Directive (2008) obliged the Member States of the European Union to promote the use of mediation through their own means. A decade later, the results of several studies revealed that national efforts to foster mediation were not as effective as planned in most cases. Despite some scholars’ concerns about restricting mediation voluntariness as means for increasing its application, Italy introduced a mandatory mediation scheme which proved that forcing parties to mediate results in high numbers of mediation procedures with favorable success rates. This led other Member States to reconsider the role of the State in fostering mediation. This article tackles the prevalence of mandatory mediation in family disputes, as an area widely recognized as most suitable for it. The co-authors raised the research question of whether the introduction of mandatory mediation in family disputes is an emerging trend in the European Union. A short overview of the mandatory mediation concept and the existing doctrinal models was presented as a theoretical background of this research. Based on the review of the scientific literature, four prevailing models were identified and briefly described. Secondly, the map of mandatory mediation within the European Union was updated with the latest data collected from the most recent legislative amendments and testimonies of the corresponding national mediation experts. Thirdly, a brief examination of the current mandatory mediation models in the Member States was conducted. The in-depth analysis of the obtained results shows that introducing mandatory mediation in family disputes is a prevailing trend in fostering mediation in the European Union. Consequently, it was identified that the variety of implemented models went far beyond the existing doctrinal classification, which needs to be reconsidered by future research in this field.
- ItemMunicipal Lex Contractus – Effectiveness of the Terms and Conditions for the Sale of Real Estate from the Municipal Real Estate Stock in Shaping the Real Estate Development Process(Wydawnictwo KUL, 2023) Słotwiński, SzymonThe municipality, acting in the sphere of dominium, independently decides on the use and manner of use of individual assets. However, the trade in real estate constituting the subject of ownership of this local self-government unit requires compliance with a number of legal regulations, the most significant of which is the Act of August 21, 1997 on Real Estate Management (consolidated text Journal of Laws of 2021 item 1899, as amended). However, none of the provisions of the law refers explicitly to the freedom and limits of shaping by the municipality of the terms and conditions for the disposal of real estate, which in the case of a non-tender route are determined in negotiations conducted with the buyer, while in the case of a tender they are announced in the contract notice. The content established in this manner is then included in the protocol, which forms the basis for the conclusion of the contract, and thus directly affects the shape of the contractual legal relationship. The purpose of the publication will therefore firstly be to set out the legal framework for the municipality’s determination towards the future buyer of the real estate of the specific manner, in which the investment is to be carried out, as well as to answer the question as to the real possibility of the former owner (municipality) co-shaping the investment proces on the sold real estate after the buyer has signed the contract. The importance of the issue under consideration is expressed in the decision as to whether the creation by the municipality of its own lex contractus by means of the terms and conditions for the disposal of the real estate relating to specific deadlines for the commencement and completion of the investment process, the manner of use and development of the real estate, as well as the liability of the new owner towards the previous owner for their violation, is legally effective and can actually be enforced by the municipality.
- ItemReduction of Contractual Penalty under Polish Law Against the Background of Supranational Legal Regulations(Wydawnictwo KUL, 2023) Widerski, PawełThe article discusses the issue of the reduction of contractual penalty according to Polish law against the background of supranational legal regulations. The aim hereof is to determine whether the current regulation of contractual penalty reduction resulting from the provisions of Polish law (Article 484 § 2 of the Civil Code) is consistent with the standards that can be derived from supranational legal regulations, i.e. Resolution (78) 3 Relating to Penal Clauses in Civil Law, the UNIDROIT Principles of International Commercial Contracts, the Principles of European Contract Law, the Draft Common Frame of Reference and the TransLex-Principles, as well as to formulate de lege ferenda conclusions. The article uses the logical-linguistic and legal-comparative method. At first, the legal regulation of contractual penalty reduction in Polish law is presented. Next, the reduction of contractual penalty in the aforementioned supranational soft law regulations is discussed. Lastly, the conclusions of the analysis performed are formulated. Despite some weaknesses, the regulation of contractual penalty reduction in Polish law seems be in line with the solutions contained in the supranational regulations in question. Some changes are required in the catalog of the prerequisites for the reduction of the contractual penalty and limitation of arbitrariness as to the extent thereof.
- ItemThe Qualifications of Mediators in Civil Matters, Including Employment Disputes, in Poland and Romania(Wydawnictwo KUL, 2023) Antolak-Szymanski, Katarzyna; Cărăbaş, MihaiMediation is increasingly being promoted as an effective means of dispute resolution within the European Union, especially in civil cases. However, in member states that lack a strong tradition of mediation, such as Poland and Romania, mediation has developed more slowly than expected. The authors argue that one reason for this may be the lack of qualified mediators for civil and employment cases in both countries. In this paper, they contend that legislators should enact higher qualification standards, including requiring specialized knowledge and ensuring that mediator certification is not outsourced to private mediation organizations with low quality training programs.
- ItemThe Right to Self-Determination of Peoples through Examples of Åland Islands and Quebec: Recommendations for a Peaceful International Legal Order(Wydawnictwo KUL, 2023) Ljubović, MirzaIn contemporary public international law, it is increasingly common that in many countries of the world and Europe, political representatives of the peoples are calling for an inalienable right to the external self-determination of the peoples involving secession to try to achieve their independence and autonomy, forming their national states to the detriment of already existing countries in which they are currently living. However, this may cause destabilization and wars in many complex multiethnic states and the European Union. Therefore, the Aland Islands and Quebec cases are extremely important for today’s understanding of the exercise of the right to self-determination of the people in contemporary public international law, in particular as the International Court of Justice in The Hague and the domestic courts invoke them as precedents to address all future cases of reference to the right of the people to external self-determination involving secession. Based on those cases, it has developed that the issue of secession is the question of the internal legal order of each sovereign country, which should deal with this issue through its constitutional legal order, and contemporary public international law should deal with its consequences. In connection with this, it is necessary to investigate and offer answers that will highlight possible abuses of the right to self-determination of all peoples as a collective human right in contemporary public international law. Such unlawful conduct may result in adverse legal consequences, in particular, the violation of basic principles of public international law, including the principles of territoriality and sovereignty of the states, the distortion of world peace and order, economic progress, the rule of law and the pursuit of basic human rights and freedoms, as well as other collective human rights, which may ultimately be the cause of provocation and lead to international and civil wars.
- ItemThe Scope of the Employee’s Right to Allowed Public Criticism of the Supervisor. Gloss to the Judgment of the Supreme Court of August 28, 2013, I PK 48/13. Critical Voice(Wydawnictwo KUL, 2023) Kobroń-Gąsiorowska, ŁucjaThis gloss discusses the position of the Supreme Court adopted in the judgment of August 28, 2013, I PK 48/13. The main thesis of the Court concerned the employee’s possibility of allowed public criticism of the supervisor, i.e. the right to whistleblowing, which is the disclosure of irregularities in the functioning of the workplace consisting in various types of acts of dishonesty, unfairness involving the employer or its representatives, when this does not lead to a breach of the employee’s duties consisting, in particular, in caring for the interests of the workplace and maintaining the confidentiality of information, the disclosure of which could cause damage to the employer (duty of loyalty; not to infringe the employer’s interests – Article 100 § 2 (4) of the Polish Labor Code. The Supreme Court’s lack of consistency in its ruling between informing the public about irregularities in the workplace and the employee’s duty of loyalty provides for even more doubts on the part of employees wishing to report irregularities. In the author’s opinion, the position taken in the case does not explain when loyalty is binding on the employee. The Supreme Court duplicated the lack of consistency in subsequent rulings, e.g. of May 10, 2018.
- ItemWhen a State Is a Party to a Dispute – (Court-)Administrative Mediation in Poland and in Ukraine (A Comparative Perspective)(Wydawnictwo KUL, 2023) Kalisz, Anna; Serhieieva, AlinaUkraine’s status as a candidate country for the Eu-ropean Union membership reinforces the need for compar-ative analysis between Ukrainian regulations and the laws of other EU Member States, as well as European regulations. One of the fields of comparative law is the development of medi-ation as a legal institution, also in cases when the state is in-volved – for disputes covered by administrative law. This has already been a subject of interest and promotion of both the EU and the Council of Europe, as European standards of democra-cy provide for the state’s cooperation with citizens/individuals. The aim of this article is – firstly – to compare the current devel-opment of mediation in administrative and court-administra-tive cases in Poland and in Ukraine, the similarities in successes and challenges, and – secondly – to determine to what extent both countries follow the latest CEPEJ guidelines. Although the state of research and literature on this subject is advanced in Poland and slightly less satisfactory in Ukraine, a comparative overview of this type of mediation regulations can be consid-ered a novum. As for methodology, the paper is dominated by the logical-linguistic method, although some conclusions were drawn on the basis of both statistics and participant observa-tion, i.e. the authors’ own mediation practice. So far – although both legal systems are quite compatible with the CEPEJ guide-lines examined and provide for inter-branch solutions – in both countries in question, the development of administrative and court-administrative mediation is not a “success story.” A con-trario: it can be classified as developing in the least resilient manner. To some extent, Poland and Ukraine show similarities and correlations in terms of successes and challenges, as well as social and mental barriers to mediation development.