Revista Jurídica Portucalense

Editorial - RJP nº 35 (2024)

Fátima Castro Moreira — Sun, 30 Jun 2024 00:00:00 +0100

Risks to Privacy v. Risks to Public Safety, a Dilemma to be overcome in the (Digital) Risk Society. Comments on the partially dissenting vote of Mr Justice Pinto De Albuquerque in the case of Big Brother Watch And Others v. The United Kingdom

Tayrone MARQUESINI CHIAVONE — Sun, 25 Feb 2024 00:00:00 +0000

The article examines the dilemma between privacy and public security in the context of the Big Brother Watch v. United Kingdom case, viewed through Ulrich Beck's concept of the Digital Risk Society. It explores the transition to a Digital Risk Society, highlighting challenges posed by the Fourth Industrial Revolution and increased digital surveillance. The article discusses the "riskification" process of privacy and data protection, emphasizing the regulatory shift from informational self-determination to risk management. It analyzes Judge Pinto Albuquerque's opinion, underlining his concerns about the proportionality and necessity of mass interceptions and the dangers of an electronic "Big Brother." The article concludes by pointing out the need for a more technical and conscious balance between privacy and security, stressing the importance of raising public awareness about surveillance risks.

Commentary on the ECHR´s Correia de Matos v. Portugal judgment from the perspective of discrimination of professional groups

Catherine MAIA, Rafaela MENDEL — Tue, 09 Apr 2024 00:00:00 +0100

The purpose of this commentary is to analyse the contribution of Judge Paulo Pinto de Albuquerque, a member of the Grand Chamber, to the judgment of the European Court of Human Rights (ECtHR) in the case of Correia de Matos v. Portugal (Application n° 56402/12) of 4 April 2018. In this case, the applicant complained of the decision of the Portuguese domestic courts refusing to allow him to conduct his own defence in the criminal proceedings against him and requiring that he be represented by a lawyer. The ECtHR held, by nine votes to eight, that there had been no violation of Article 6 §§ 1 and 3 (c) (right to a fair trial/right to defend oneself in person) of the European Convention on Human Rights. Judge Pinto de Albuquerque expressed a dissenting opinion. The central issue addressed is discrimination of professional groups, i.e. the position of Portuguese legislation which makes self-representation impossible in criminal proceedings.

Proof and Truth: Antagonism or Difficulty?

José Luís Bonifácio RAMOS — Sat, 17 Feb 2024 00:00:00 +0000

Regarding the duality between proof and truth, it is important to know whether the search for truth, the susceptibility of achieving the veracity of facts is possible. Therefore, in addition to the distribution of the burden of proof and the assessment of evidence, it is important to pay attention to the available methodologies. Namely the judgment of likelihood, the maxims of experience, as a mechanism linked to hypothetical judgments, the degrees of proof or evidentiary standards, corresponding to levels of probability. In fact, regarding standards, they can be rigid or flexible and assume a quantitative orientation of probabilities that allows a level of evidentiary conviction. On the other hand, the mechanism of probabilistic methods has generated criticism and the preference for explanationism or relative plausibility.

Artificial intelligence and the novelty of the Brazilian judiciary in the integration of the UN 2030 agenda

Sat, 17 Feb 2024 00:00:00 +0000

This article aims to discuss the action plan of the Judiciary, with emphasis on the performance of the Federal Supreme Court and the National Council of Justice in the integration of the Sustainable Development Goals, the United Nations, the Court and, systemically, the Brazilian Judiciary. The National Council of Justice has been building a fruitful path in the institutionalization of the 2030 Agenda and in the proposition of judicial policies, expanding the scope of the debate in this area, adding partnerships and strengthening research, innovations and the use of artificial intelligence. This bibliographic descriptive research is based on printed and electronic media and the national legal framework. At the end of the research, it became evident that the Brazilian Judiciary, in a pioneer initiative in an international dimension, incorporated the Sustainable Development Goals of the 2030 Agenda of the United Nations in its routine and in the administrative and extrajudicial management, through the development of tools and the use of artificial intelligence, indexing them in its taxonomic structure of judicial processes.

The European Green Deal

Antonio GOUCHA SOARES — Sat, 17 Feb 2024 00:00:00 +0000

The article focuses on the legislative reform presented by the European Green Deal, at the beginning of the Commission mandate. It starts by analyzing the regulatory roadmap fixed by the Fit for 55 program and the first step towards its achievement, with the adoption of the so-called European Climate Act. The article then focuses on some core pieces of the ambitious legislative reform in view of the Union's climate transition, which seeks to achieve a balance between the reduction of greenhouse gas emissions and the increase of net removals by expanding carbon sinks: on the one hand, the review of the emissions trade system and the reform of the energy taxation directive; on the other hand, the quality of land use and the increase in forest area, as well as the intended nature restoration law, aimed to put biodiversity on the path to recovery and to restore natural ecosystems.

The United Nations Convention on the Law of the Sea and the marine environment: a contribution to the analysis of the regulation of the protection and preservation of the marine environment in UNCLOS

Tiago Vinicius ZANELLA — Sat, 17 Feb 2024 00:00:00 +0000

The central purpose of this paper is to comprehensively analyze how the United Nations Convention on the Law of the Sea (UNCLOS) establishes standards and regulates the protection and prevention of the marine environment. Systematically, the article seeks not only to understand the relevance of UNCLOS for international law but also to highlight its influence on the global legal scenario and for the protection and preservation of the marine environment. The analysis explores the Convention's main attributes and implications for international law, providing a more complete view of its role in the environmental context. By examining the distinctive features of the UNCLOS text, the study investigates its innovations in comparison with other treaties, evaluating their practical applicability. Furthermore, attention is devoted to the complex issue of State sovereignty over natural resources in the maritime context, focusing on avoiding environmental damage to third States and areas beyond its jurisdiction. Thus, this article aims to contribute to a deeper understanding of the impact and effectiveness of UNCLOS in preserving the marine environment and developing international law.

Problems related to the alimony tax regime

Daniel TABORDA, Nuno de LEMOS JORGE, António MARTINS — Sun, 25 Feb 2024 00:00:00 +0000

considering that progressive taxation is a constitutional imperative the tax regime for alimony pensions in terms of personal income tax (IRS) is analysed, considering, in particular, deductions limits and the way in which the alimony obligation is determined in accordance with civil law. The rationality of the argument of regressive nature of deductions as a basis for the conversion of expenses and limiting the deductible value of these expenses is critically considered, in order to highlight (a)symmetry in taxation and (im)balance in our legal system, either in itself or in comparison to the tax regime of other obligations that have some affinity with alimony pensions.

The free uses of copyrighted works in Cape Verdean law - notes on a brief essay on its scope and foundation

José Maria MONIZ — Fri, 01 Mar 2024 00:00:00 +0000

The scope of this essay is to scrutinize the limitations to which copyright is subject in the Capeverdean legal system. For this purpose, we will analyze, at first, the copyright protection regime and the systems aimed at limiting the rights granted to the author. Subsequently, we will study the system adopted at internal level, and the range of limitations formulated by the ordinary legislator. The result of this essay is, among others, that the domestic legal framework classifies free uses taxatively and is highly protectionist of copyright, for which we argue for some flexibilization

Judicial Control on “Internal Corporal Acts”: Case of the Right Action of Inconstitutionality 6524 In the Light of the Exception of the Political Nature of Rui Barbosa

Martonio MONT´ALVERNE BARRETO LIMA, Francisco Thiago PINHEIRO LEITÃO — Sat, 02 Mar 2024 00:00:00 +0000

The article aims to carry out an analysis of the judgment of Direct Action of Unconstitutionality 6,524 by the Supreme Federal Court in relation to the thesis of the exception of the political nature of the cause defended by Rui Barbosa, in order to identify the relevance of the respective teachings. Therefore, the analysis will aim to compare the judgment of Direct Action of Unconstitutionality 6,524 and Rui Barbosa's lessons on the constitutional exception. This is bibliographic and documentary research. The hypothesis is that the control of purely political acts is possible, as long as they keep projection in the text of the Constitution. The conclusion of the research was that the judgment of ADI 6,524 is in line with the thesis of political nature and its consequences, especially under the political role played by the Supreme Court.

Foreign Experience of Responsibility for Driving Vehicles in Condition of Alcohol Intoxication: International Standards, Administrative and Criminal Aspects

Wed, 13 Mar 2024 00:00:00 +0000

The purpose of the article consists in revealing foreign experience of responsibility for driving vehicles in condition of alcohol intoxication (international standards, administrative and criminal aspect). Considered is the legislation of some European countries (Great Britain and Germany), Australia and the USA regarding responsibility for driving vehicles in condition of alcohol intoxication. Attention is drawn to the fact that among the possible measures, legislation of some states provides for mandatory equipment of the offender’s vehicle with an alcohol blocking device or mandatory rehabilitation or rehabilitation programs (the so-called “therapeutic jurisprudence”). It has been concluded that the legislation of the European Union countries, the United States and other countries of the world try to deter serious violators and so-called “repeat offenders” by means of creating specialized courts (organizational factor), strengthening punishment sanctions (jurisdictional factor), spreading educational and therapeutic programs (medical educational factor) and using vehicle blocking devices in case of identification of alcohol in the driver’s organism (technical factor).

Surrogacy in Portugal: drawing insights from international practices

Wed, 13 Mar 2024 00:00:00 +0000

As Portugal prepares to implement surrogacy legislation, it enters a realm fraught with legal, ethical, and psychological complexities. Across the globe, jurisdictions exhibit diverse approaches to surrogacy, reflecting cultural, ethical, and legal diversity. This necessitates a comprehensive understanding of the implications of surrogacy within different legal systems. Moreover, the psychological impact on surrogates, intended parents, and offspring demands careful examination. As Portugal embarks on this journey, it must navigate ethical challenges, ensuring the protection of all parties involved. Furthermore, addressing research gaps and ethical dilemmas will be paramount in crafting legislation that upholds the rights and well-being of all individuals affected by surrogacy arrangements.

The right to freedom to choose the type of business: The case of VietNam

Lam NGUYEN VAN, Quang VU — Mon, 18 Mar 2024 00:00:00 +0000

The right to freedom of business is a fundamental right enshrined in the Vietnamese constitution, the ability of subjects to do what they want, choose, and decide for themselves all matters related to business activities that are not prohibited by law. In particular, the content of the freedom to choose the type of business is considered basic and important. However, Vietnamese law only treats freedom of business as a right of enterprises and only recognizes certain types of enterprises that are considered popular, which limits citizens' freedom to choose types of businesses. This paper uses systematization, analysis, explanatory methods, and comparative jurisprudence methods, etc. to analyze theoretical issues and the current legal situation regarding the freedom to choose types of enterprises in Vietnam, propose some solutions to improve the law and effectively enforce the law, ensure the freedom to do business of citizens.

The (lack of) transparency of the funding received by parliamentary groups: a study in the light of Spanish Law

Álvaro GONZÁLEZ-JULIANA — Mon, 18 Mar 2024 00:00:00 +0000

The scarce regulation of subsidies granted to parliamentary groups, together with the absence of their control by the Chambers, makes it urgent to ensure transparency in the use of these public funds in order to ensure to guarantee true accountability. This article analyses the applicability of the Spanish Law 19/2013, of 9 December, on transparency, access to public information and good governance to these subsidies, highlighting the insufficiency of active publicity in this area and the difficulties in in making the right of access to this information effective.

Non-fixed working hours in the context of globalisation: the impact of international trends on national legislation and employers' practices

Fri, 22 Mar 2024 00:00:00 +0000

Globalisation and information technology are having an active impact on various spheres of society, from the economic sphere to labour relations. The direct impact on the labour sphere can be seen in the change in trends in the definition of working hours, as today there are more opportunities for compromise between employees and employers on setting working hours and agreeing on the possibility of non-fixed working hours. This has resulted in flexible working arrangements. This is what makes this study relevant. The purpose of this study is to identify the benefits of non-fixed working hours and to analyse the challenges faced by participants in labour relations when establishing flexible working hours in the context of globalisation. It is important to study global patterns and trends in the introduction of flexible working hours at the international level, taking into account international regulations. It is also advisable to assess the impact of international recommendations on the formation of national labour legislation in the framework of non-fixed working hours. In order to achieve this purpose, a number of methods of scientific knowledge were used, such as systematic analysis, synthesis, formal legal method, dialectical method and method of analysis of regulatory documents. The findings will serve as a basis for further research in this area and will contribute to the development of recommendations for adapting the current legislation to the realities of today, the rapid development of information technology and globalisation.

Apprehend Electronic Mail: The Code of Criminal Procedure and Cybercrime Law Regimes

Joaquim RAMALHO, Fernando ALMEIDA — Fri, 22 Mar 2024 00:00:00 +0000

Cybercrime is a crime whose prevalence has increased considerably over recent years. The publication of the Cybercrime Law sought to prevent and combat computer crime, however the duplication of regimes with the Code of Criminal Procedure led to difficulties in their interconnection between the norms. Therefore, this paper aims to reflect on the process of the special regime for the apprehend of electronic mail and the general regime for the correspondence apprehend, regarding the need for a prior order from the judge for the respective apprehension.

The restitution of profits unlawfully obtained in the event of the diversion of corporate business opportunities

Clara SOUSA ALVES — Fri, 17 May 2024 00:00:00 +0100

An administrator who appropriates, for their own benefit or that of a third party, corporate business opportunities may incur an obligation to return to the company the profits he illicitly obtained. In Portuguese law, this obligation is not considered an autonomous principle but is rather justified within the framework of legal concepts such as civil liability, unjust enrichment, or improper business management. In Anglo-Saxon law, it is supported by the concept of disgorgement.

In our legal system, as it stands (de iure condito), there is no ideal solution for the issue of illicitly obtained profit, as the resolution is integrated into the framework of civil liability, albeit with several imperfections, since obstacles arise in all legal constructs. Therefore, in terms of legal development (de iure condendo), we assert that, at every turn and increasingly, it is time to reconsider the punitive function of civil liability and to incorporate the concept of disgorgement into our legal system.

An analysis of VAT in the context of participatory association agreements

Fri, 17 May 2024 00:00:00 +0100

In Portugal, Decree-Law no. 231/81 of July 28 defines the association in a participation contract as the association of a person with an economic activity carried out by a third party, with the former participating in the profits and/or losses for the latter. A joint-stock association is not a civil or commercial society because it is not attributed to any legal personality. Conversely, there is no shared economic activity. The member exercises the activity without any intrusion from the member and shares the profits and (eventually) losses with the member. It's a legal business. For the law, it is the associate that arises in legal relations with third parties as the owner of the business and its rights and obligations. The partnership agreement does not constitute a new legal entity or even an autonomous asset. It is a contract for the distribution of results without property autonomy or legal personality. In addition to the management functions, it is also up to the associate to settle and deliver the VAT due to the state.

The (undisputed) gambling tax

Micaela MONTEIRO LOPES — Fri, 17 May 2024 00:00:00 +0100

The gambling activity became lawful in the late 1920s through Decree No. 14643, dated December 3, 1927. With the aim of sanctioning an activity considered immoral, that decree created the gambling tax and allocated the revenue collected to the financing of infrastructure and tourist projects, thus enriching and diversifying the local tourism offer. Despite casinos still being viewed as one of the main causes of addiction and misfortune, it is impossible to dissociate them from a wide range of beneficial effects since, as promoters of entertainment and spectacle, they are seen as the main drivers of growth in the regions where they are located. Currently known as the special gambling tax, the legal and economic metamorphoses that have taken place since then have hardly altered its essential characteristics. However, despite being crucial in the national economy's development strategy, its singularities require a careful analysis from a fiscal perspective.

Third Party Embargoes – A Practical Legal Perspective

Murillo Magalhães CARRERA — Wed, 29 May 2024 00:00:00 +0100

The relationship between third party embargoes and the sale in progress has been the subject of a wide doctrinal and jurisprudential debate. In effect, under the terms of number 2 of article 824.º of the Civil Code, assets are transferred free of the guarantee rights that encumber them, as well as of other real rights that have no registration prior to any attachment, attachment or guarantee, with with the exception of those established on a previous date, which take effect in relation to third parties regardless of registration. The number 1 of article 342.º of the Civil Code Procedure stipulates that if the attachment, or any judicially ordered act of seizure or delivery of assets, offends the possession or any right incompatible with the performance or scope of the due diligence, the holder who is not a party to the cause, can assert it, deducting third party embargoes. This time, the present work essentially aims to establish when a third party that is not a party to the executive process, can deduct third party embargoes against the attachment or any judicially ordered act that offends its possession or any other right incompatible with the scope of that diligence. The present work essentially aims to establish when a third party that is not a party to the executive process, can deduct third party embargoes against the attachment or any judicially ordered act that offends their possession or any other right incompatible with the scope of that diligence.

Mobilizing Society for Peace: Enhancing Access to Justice of Tribal Dispute Resolution in Baduy and Sasak Tribes, Indonesia

Moh FADLI, Shinta HADIYANTINA, Dewi CAHYANDARI, Airin LIEMANTO, Mustafa LUTFI — Fri, 31 May 2024 00:00:00 +0100

In the last few decades, social, cultural, economic, and political conflicts have been on the rise. People need the existence of an institution to get access to justice and reconciliation for peace. However, judicial systems in Indonesia for some fail to accommodate the justice parallel to people’s expectation. This research is aimed at delineating the uniqueness of adat (tribal) dispute resolutions, particularly in Baduy and Sasak tribes in comparison to district courts in responding to issues and accelerating peace. This research employed a socio-legal method, FGD, and in-depth interviews. The research results reveal that dispute resolutions through an adat institution are deemed effective in settling conflicts because the law was made on the basis of the nature of adat communities and conflicts are settled by a tribal leader who treats people humanely. With stages of deliberation and the wisdom demonstrated by the tribal leader that adheres to ancestral values, reconciliation, and peace can take place holistically and fast, without rejection and prejudice. However, dispute resolutions with the help of adat institutions need improving, entailing institutional strengthening, regular coordination between the adat dispute resolution institutions and law enforcers, meaningful participation, and evaluations.

Model For Settling The Unresolved Segment In Noel Besi – Citrana Land Borders Of Indonesia - Timor Leste

Hendri SUSILO, R RIJANTA, Ahmad ZUBAIDI — Sun, 09 Jun 2024 00:00:00 +0100

State borders are imperative to a country as affirmation of the limits of the sovereignty of the country. A border is a strategic and vital area. The term strategic comes from the fact that a border area has natural resource potencies and a market opportunity because of its close distance from the neighboring country. It is vital since, in a political term, a border area is related to State sovereignty, defense, security, nationalism, and social, economic, and cultural aspects. This research focuses on analyzing and developing a model for settling the unresolved segment in Noel Besi-Citrana, land borders of Indonesia-Timor Leste. The method was qualitative with a case study approach. Findings showed that the unresolved segment problem in Noel Besi-Citrana had its roots in the dissenting interpretation of the 1904 Treaty. We proposed a model for settling the unresolved segment in Noel Besi-Citrana by studying the negotiation process development between Indonesia and Timor Leste is a settlement model using a top-down political approach. A political approach was considered the most effective because the regular way that is usually done causes this problem to drag on.

Limitations of the right to personal data protection and the right to secrecy of correspondence under martial law in Ukraine

Sun, 09 Jun 2024 00:00:00 +0100

The right to personal data protection and secrecy of correspondence are important components of the right to privacy, one of the fundamental human rights. In modern society, private life becomes especially vulnerable, taking into account the possibilities of modern technologies. The intervention into the private life can be almost unlimited unless there are some legislative rules which prevent such intervention. Therefore, it is very important to develop reliable mechanisms for the protection of the right to privacy and its elements, in particular, the right to personal data protection and the right to secrecy of correspondence. Unfortunately, the state of ensuring these rights in Ukraine is imperfect. The legislation aimed at protecting personal data does not meet European standards. This state of affairs is especially disturbing in terms of martial law imposed in Ukraine, when it is allowed to limit constitutional human rights, in particular, the right to privacy. It is important to determine the permissible limits of such restrictions, and to provide reliable mechanisms for the protection of these rights in case of exceeding the permissible interference in private life under martial law.

Variable commutativity tributes and reservation of legislative competence of the portuguese constitution: a relationship (yet) to be stabilized

João Ricardo CATARINO, Alexandre Morais NUNES, Susana SOBRAL — Mon, 10 Jun 2024 00:00:00 +0100

The Portuguese tax system has traditionally recognized two main types of tributes - taxes and public fees – perfectly separable due to their unilateral or synallagmatic/commutative nature. Since 1997, however, this traditional dichotomy has been shaken with the creation of a third tribute type, called “other financial contributions” by the CRP, which has included a set of tributes of a variable nature, not always objective or immediate. This study analyzes the problems arising from the creation of this third type of tribute in the face of the more traditional dogmatics of public tax policy, mainly as a consequence of the lack of stable dogmatics where, not infrequently, the respective constitutional and principled limits are questioned. The proposal is to adopt measures that guarantee that this new type of tribute respects the constitutional dictates and the most structuring rationales of public tax policy, respecting the legitimate interests of taxpayers, as a way of, at least, mitigating abuses in their use. We conclude that a more refined conceptual definition of financial contributions is needed to differentiate them from other tributes. We also recommend the establishment of an effective general law regulating detailed fees and financial contributions, integrating this refined conceptual framework.

Kashmir, the longest unresolved dispute on Security Council’s agenda: A testing case for the Council’s mandate of maintaining international peace and security

Muhammad Imran KHAN — Wed, 12 Jun 2024 00:00:00 +0100

International peace and security is a meta-principle upon which all the aspects of international development rests. Territorial disputes pose great threat to the objective of maintaining peace and security and consequently to sustainable development. Out of several colonial legacies, Kashmir dispute is one that has the potential, demonstrated in several instances, to become a grave threat to international peace and security. The Security Council has failed to resolve this vital dispute, which makes Kashmir the oldest unresolved dispute on its agenda. The reasons for failure are three. The lack of effective implementation mechanism in international legal order. Failure of international political system to comprehend the explosive nature of this dispute. The fact that the main architects of Sustainable Development Goals, also the P5, are the top arms suppliers to the parties in this dispute.

This research paper will provide a brief history of this dispute, timeline of Security Council’s engagement with Kashmir, the obligations and failure of Security Council of maintaining peace and security. It will investigate the fact that how and to what extent this failure of the Security Council has undermined regional and international security and to what extent it can disturb the SDGs agenda.

Indigenous People and Customary Law in Case of Religious Rights: A Taste of Injustice from Karuhun Urang in Indonesia

Kunthi TRIDEWIYANTI, Luh Rina APRIANI, Nurul MIQAT — Wed, 12 Jun 2024 00:00:00 +0100

This study examines Indonesia's Adat Karuhun Urang (AKUR) Community and their religious rights and justice struggles. The study seeks to determine how AKUR perceives and experiences religious justice injustice. This research is ethnographic and descriptive. Participatory observation and in-depth interviews with AKUR members, community leaders, and relevant parties. The project has documented AKUR's religion, culture, and social relationships. AKUR's history and religious rituals are examined in light of customary law and Sunda Wiwitan. Religious discrimination affects identity documents, schooling, and marriage for AKUR. Constitutional Court rulings and government legislation address this injustice, but religious rights and private views remain unsettled. The research examines religious rights justice through Rawls and Nozick's theories. Unfairness against AKUR violates the fundamental right to religious freedom. Nozick's philosophical relationship between religious liberty and self-ownership is also examined. According to the report, the Indonesian constitution provides religious freedom for everybody. However, the legal separation of religion and belief discriminates against AKUR. The study stresses the importance of recognizing belief as a primary religion and protecting Indigenous groups' religious rights, including religious practices and beliefs.

Legal support of the rights of the child and the gestational courier in the context of the fourth generation of human rights in Ukraine

Viktoria STRELNYK, Natalia HRES, Tetiana CHURILOVA — Sat, 22 Jun 2024 00:00:00 +0100

The permissiveness of Ukrainian legislation toward surrogate motherhood makes Ukraine one of the world’s centers for surrogacy. The paper discusses the solution to the issue of ensuring the implementation of human reproductive rights in the international and national legislation of Ukraine. Attention is drawn to the need to consider the norms of morality, ethics, and religion. The purpose of the article is to substantiate the issue of legal support for the implementation of reproductive human rights by considering the theoretical and applied aspects of the violation of the rights of a surrogate mother, a child born to her in the context of the fourth generation of human rights. The authors analyzed international experience in regulating relations in the field of surrogacy (by the example of the USA, Germany, Italy, Spain, and other countries). The authors researched judicial practice, which began to form in Ukraine. Concern was expressed about the lack of effective government response to cases of violation of the rights of a surrogate mother and child on the territory of the state. The authors formulated a proposal on the need for constant state control over organizations that provide mediation and medical services in the field of surrogacy.

The liability emerging from the Maritime Safety Law and the importance of the I.S.M. Code – the MSC Patricia oil spill court case in Sines (Portugal)

Duarte Lynce de FARIA — Sat, 22 Jun 2024 00:00:00 +0100

The deepening and development of the rules on maritime safety have the effect of gradually doing away with clauses exempting or limiting liability, as regards, in general, the international system of liability for damage caused by spills in the marine environment and the application of the compensation funds. The compliance with maritime safety standards, while minimising "risks" (and errors), also makes the fight against "threats" more robust and, at the same time, limits the application of clauses on exoneration and limitation of liability, which are present, for example, and among other instruments, in the conventions on pollution resulting from oil spills and those relating to the maritime transport of goods. The added value of standardising the I.S.M. Code and using it as a reference to qualify the conduct in question also has consequences for insurers and criminal liability, in which the trials of most of the most severe spills fall, as was the recent case of the N/M "Patrícia" in Sines in October 2016. With the new techniques and modern types of equipment on board the vessels, the increasingly demanding nature of ship management requires a new approach to exoneration clauses (of civil liability and its limits), considering their complete appliance with the leading international references and quality assessment.

The Impact of Digital Transformation on the Sustainability of the Social Security System

Luís Manuel PICA — Sat, 22 Jun 2024 00:00:00 +0100

The sustainability of social security is an (almost) embryonic concern in social security law. Talking about social security leads us, without much delay, to consider the concern that societies have about the financial sustainability of their social security system. And to the problems that already exist, a new ingredient has been added that puts the current system in crisis and leads us to rethink the forms of financing and the measures that should be adopted to respond to these new realities that derive from digitalization and the automation of procedures. Especially when they lead to a reduction in jobs and, consequently, a reduction in the revenue derived from the contributions that workers and employers pay into the social security system.

UNIDROIT Factoring Model Law: Critiques and Possible Effects

barış KAYA — Thu, 27 Jun 2024 00:00:00 +0100

Factoring fulfills an important function globally in financing and accessing credit for businesses, companies and entrepreneurs of all sizes, especially small and medium-sized businesses. The UNIDROIT Factoring Model Law was prepared within a three-year period as a result of the work initiated by UNIDROIT upon the recommendation of the World Bank due to reasons such as the inadequacy of the existing international legislation for countries to create a functional factoring legislation and the need to create global rules and legislation specific to factoring. The UNIDROIT Factoring Model Law for which the Guide to Enactment has not yet been prepared, contains some challenging rules. During the preparation of the UNIDROIT Factoring Model Law, other relevant legal regulations were also used and compliance with them was observed. In this study, the UNIDROIT Factoring Model Law, which is a very new legislation, has been criticized under basic section headings and its weaknesses and strengths have been examined. While doing this, an answer is sought to the question of whether the UNIDROIT Factoring Model Law could meet the expectations. Additionally, its possible effects are discussed. It has been concluded that the UNIDROIT Factoring Model Law contains provisions that may cause problems and confusion in practice especially under the headings of the scope of receivables subject to transfer, notification and registration system, priority rights, but in general it should be welcomed as an exemplary law. It is too early to answer the question of whether the UNIDROIT Factoring Model Law will be successful internationally, that is, to what extent it will be adopted by countries. The Guide to Enactment to be prepared in this process will also be effective.

AIFC Court: Theory and Practice

Maksim BATURIN, Svetlana MOROZ — Thu, 27 Jun 2024 00:00:00 +0100

Currently, society in Kazakhstan, as in other developed countries, is being formed under the influence of digitalisation and the globalisation of the economy. In this context, the Astana International Financial Centre is a priority for the development of information and financial services in Kazakhstan and the competitiveness of the country's economy, which suggests the need for its in-depth study. The purpose of this study is to analyse the theoretical and practical foundations on which the activities of the Astana International Financial Centre court are based. For its successful achievement, the method of analysis and synthesis, comparison, formal legal, deduction, and generalisation were used. The findings describe the different aspects of the Astana International Financial Centre and its court. Accordingly, the core essence of such a centre, its main features and characteristics, which are reflected in its development, have been identified. Also, during the practical analysis of the object of the study, the procedural framework on which the Astana International Financial Centre court is based was established, its principles and the factors influencing its effectiveness were examined. As a result, it has been argued that Astana International Financial Centre is a well-functioning financial structure that relies on international investors and other actors, thereby enhancing Kazakhstan's investment climate and its place in the global economy. Given that the subject is relevant in academic circles, its practical value is revealed in its potential as a primary source for subsequent academic studies and as a methodological guide for practitioners on the improvement and development of Astana International Financial Centre.Currently, society in Kazakhstan, as in other developed countries, is being formed under the influence of digitalisation and the globalisation of the economy. In this context, the Astana International Financial Centre is a priority for the development of information and financial services in Kazakhstan and the competitiveness of the country's economy, which suggests the need for its in-depth study. The purpose of this study is to analyse the theoretical and practical foundations on which the activities of the Astana International Financial Centre court are based. For its successful achievement, the method of analysis and synthesis, comparison, formal legal, deduction, and generalisation were used. The findings describe the different aspects of the Astana International Financial Centre and its court. Accordingly, the core essence of such a centre, its main features and characteristics, which are reflected in its development, have been identified. Also, during the practical analysis of the object of the study, the procedural framework on which the Astana International Financial Centre court is based was established, its principles and the factors influencing its effectiveness were examined. As a result, it has been argued that Astana International Financial Centre is a well-functioning financial structure that relies on international investors and other actors, thereby enhancing Kazakhstan's investment climate and its place in the global economy. Given that the subject is relevant in academic circles, its practical value is revealed in its potential as a primary source for subsequent academic studies and as a methodological guide for practitioners on the improvement and development of Astana International Financial Centre.

The Pursuit of Public Interest Under the Rule of Law

Ricardo Sousa da CUNHA — Fri, 28 Jun 2024 00:00:00 +0100

The constitutional dichotomy between "the pursuit of the public interest" and "the protection of citizens' rights" under Article 266(1), subject to the law under the terms of Article 266(2), expresses the terms under which contemporary administrative law has historically been constructed. The affirmation of a special regime of administrative subjection to the Law for the pursuit of the "public interest" is based on the legal argument between these two competing axes that historically condition each of the contingent solutions of contemporary Administrative Law. It is important to assess the extent to which the administrative pursuit of the "public interest", safeguarded in the Constitution, is still subject to the same constitutional purpose of subjecting the exercise of power to the Law.

Discrimination in the Paradigm of Crime: A Sociolegal Approach

Yasmine LOZA — Sat, 29 Jun 2024 00:00:00 +0100

Critical race theory is used to investigate the literature on victimhood and subtle and blatant prejudice in law enforcement. In the current contextual climate, the phenomenon of discrimination is explored through a sociology of law to discuss the theoretical and practical implications of justice practitioners on society. Discrimination based on gender, racial bias, ethnicity/religion, and other sociocultural markers of difference is an ongoing process which must urgently be considered and treated as a structural concern in society and distinctly, in legal frameworks embedded as police and victim paradigms. The diffusion of fear and stereotypes of a constructed ‘other’ has been pronounced since historical narratives until the contemporary moment to portray power imbalances and victim-blaming attitudes which reinforce favouritism of certain identities and silence others. Discourses of (dis)empowerment are perpetuated in knowledge apparatus which produce and subject the ‘other’ into a category of inferiority evident in judgments of crime. Racism and the perpetuity of racist discourses are in this way critically redressed to reveal the significance of multidisciplinary approaches in socio-legal frameworks and the interwoven potentials of justice to protect all identities as human beings.

The rights of the child: knowledge and compliance

Olívia CARVALHO, Ana BORGES, Sónia GALINHA — Sun, 30 Jun 2024 00:00:00 +0100

The Convention on the Rights of the Child - CRC -, adopted by the General Assembly of the United Nations – UN – on November 20, 1989, ratified by Portugal on September 21, 1990 Was a significant milestone in safeguarding and promoting children's rights throughout history. It is therefore essential that all those involved in civil society as a whole, encompassing the political sphere, and particularly entrusted with the direct responsibility of educating children, take every conceivable measures to ensure that these rights are guaranteed. The children themselves should also know when these rights are or are not being respected. This study aims to assess children’s awareness of the CRC and the extent to which their rights are being fulfilled. Furthermore, we aim to examine whether significant differences exist in the fulfilment of rights and their perception among children in the North, Center, and South of Portugal. A total of 123 teenagers ranging from 7th to 12th grade participated in this research. The students came from three different areas of the country: North, Center and South of Portugal. The survey "Being a Child with Rights - Convention on the Rights of the Child: Knowledge and Compliance" was applied as an instrument. The results indicate that many children continue to be disrespected in their rights.