Malta

The EU Response to COVID-19: From Reactive Policies to Strategic Decision-Making.

This article examines the ways in which the European Convention on Human Rights and its case‐law could be used to combat sexist education in State or private schools as well as the development of concepts of philosophical convictions, the duty of the State and the rights of children. Children could use the Convention if their parents imposed a limited education on them, and better opportunities were offered through the State. The provisions under the European Community, though more limited, apply to vocational education and training and access to it. Such access has implications for secondary schooling. European Community law on equality for women could be especially valuable. The difficulties of using English law are reviewed and aspects of English and European procedural law noted. I conclude with suggestions for a feminist strategy to improve girls’ education and that of other disadvantaged groups who could use similar arguments.

There has been only partial harmonization on the basis of secondary European Union (EU) law both in regard to the substantive and the international insolvency law provisions on close-out netting. In non-harmonized areas, the legal position in the Member States still shows considerable differences. English insolvency law is generally netting-friendly. Apart from the implementation of the European Council Directive 2002/47 on financial collateral arrangements (Financial Collateral Directive),1 English insolvency law generally upholds close-out netting provisions as a matter of principles of case law.2 Moreover, even in the absence of a contractual agreement to this effect, broad rules on statutory, automatic set-off in insolvency are applicable,3 the effects of which are often regarded as equivalent to a close-out netting mechanism.4 In regard to cross-border aspects of insolvency, English law has maintained...

The impact of Brexit on “bail-inable” liabilities under English law

This paper examines the implementation into English law of three recent EC Directives; the Consumer Sales Directive, the Electronic Commerce Directive and the Unfair Commercial Practices Directive – transposition of the latter currently at a consultative stage. Although English law copes remarkably well in accommodating alien concepts and rules within its doctrinal framework, nevertheless, these Directives have generated some significant conceptual and substantive adjustments in English contract law. The recently enacted Unfair Commercial Practices Directive adds a new dimension to the impact of EC legislative activity in the area of private law. Furthermore, the ensuing regulatory complexity and incoherence arising from UK implementation obligations is a cause for concern. Particularly in the light of the EC's current project on European Contract Law.

The article analyzes the doctrine of hardship in the contract law of Ukraine, France, Germany, England. The grounds for modify ing or terminating the contract due to a hardship are analyzed. A comparative analysis of the court ’ s powers to modify the contract in connection with a hardship is carried out . In French civil law the doctrine of l’imprévision covers all situations in which a party’s contractual obligations have become harder and more onerous to perform because of an unforeseen event posterior to the conclusion of the contract. The conception of hardship was introduced to Ukrainian Civil Code in 2004 for provide the contractual parties to overcome the negative impact of a change of circumstances that was unforeseeable at the time of the conclusion of the contract and renders performance excessively onerous for one of them . This provision is aimed, on the one hand, to restore the balance of interests in contractual relations and to reduce risks, and on the other hand, to keep the contract, as far as possible, preference given to the adaptation of the contract over its termination. Unfortunately, the case law indicates difficulty in implementing the provision of hardship. In English law doctrine is formed the concept of frustration. The only remedy for frustration in common law is termination of the contract; and termination is permanent – English law does not recognize partial frustration nor temporary frustration. German doctrine of hardship has been conceptualized into three aspects requiring a change of circumstances, the parties would not have concluded the contract if they had been aware of this change, and it would not be equitable for one party to deny the other party any amendment of the contract. German approach has been adopted in many harmonization projects and international instruments of contract law, in particular Principles on European Contract Law, Draft Common Frame of Reference, UNIDROIT Principles of International Commercial Contracts. In French, English and Germany law is established three different approaches to cases of contractual impossibility as an exception to pacta sunt servanda: contractual parties are not discharge unless performance has become impossible; as exception for impossibility to some cases; or as separate exception. The main problem nowadays is the lack of definition of “ significant change of circumstances ” in Ukrainian legislation and case law. Such a rule seems to increase legal uncertainty as the criteria of its implementation are vague and have not yet been firmly and precisely defined by case law. In most cases, the courts do not recognize the change of circumstances referred to by the party as significant. Ukrainian c ivil law doctrine defines “ significant change of circumstances ” as change of circumstances that did not depend on the will of parties and was the result of certain actions from the outside; and contains four features: was unforeseeable at the time of the conclusion of the contract, its duration and inevitability, arise without fault of the parties. The law of many states and international soft law gives courts power to modify or terminate the contract in case of change in circumstances. French Civil Code not contains certain grounds in the event of change in circumstances to modify or terminate the contract. They are the same as in case of contract modification or termination by parties. In contrast, Ukrainian legislator decreases significantly judicial intervention in contractual relations. The power of Ukrainian courts to modify the contract is based on the general principles of contractual freedom, if parties in contractual terms lay down modification the contract in case of change in circumstances that was unforeseeable at the time of the conclusion of the contract renders performance excessively onerous for a party.

THE FUTURE OF THE COMMON SECURITY DEFENCE POLICY AND A CONSTITUTIONAL QUESTION

Early next year, the European Union (EU) plans to implement a major piece of legislation—about 1,200 pages in its current form—to replace 40 different laws regulating the use of chemicals across the member states. When the European Commission (EC) presented its first draft in May 2003 (EC, 2003), it immediately drew huge attention because of its far‐reaching consequences, not only economic but also on human health and the environment. If passed, the REACH legislation will require the chemical industry to provide information on the potential negative effects—most of which are still unknown—of a vast number of chemicals used throughout the EU. Not surprisingly, this has met with criticism from all quarters. The costs of obtaining this information, and the subsequent effects on the European chemical industry, are hotly disputed. > [REACH] immediately drew huge attention because of its far‐reaching consequences, not only economic but also on human health and the environment REACH dictates new rules on the Registration, Evaluation and Authorisation of CHemicals. It requires manufacturers and downstream users of chemicals to register their substances—if they are sold in the EU as isolated compounds or in preparations—either with a national regulatory authority or a central European Chemical Agency, which the EC plans to establish next year in Helsinki, Finland. Companies are required to submit a registration dossier for each product, listing possible adverse effects on human health or the environment. REACH also requires additional authorization for substances that the EC considers of “very high concern”: chemicals that are carcinogenic, mutagenic or toxic to the reproductive system; endocrine disruptors; or persistent, bioaccumulative and toxic substances. Producers or downstream users must perform a risk assessment to ascertain whether their product creates risks to human health or the environment, which social benefits it provides, and whether safer alternatives are available. If, on the basis …

Democracy and equality of citizens are the fundamental values of the European social and economic order. This axiological assumption is generally reflected in extensive legal regulations organizing the social and economic life in the European Union (EU). For the purposes of this chapter, a detailed analysis of those foundations intend to be limited to the manifestations of the democratic values in the Court of Justice of the European Union (CJEU) adjudication in the selected issues of the European antitrust law where, under private enforcement against practices violating the prohibitions of the European antitrust law, equal participation and citizen's access to the proceedings before the courts, based on the principle of freedom of choice of all concerned, are ensured.

Lex Rei Sitae in Perspective: National Developments of a Common Rule?

Modern copyright law is designed so as to accommodate the needs of a dynamic reality through the extensive use of open standards, aimed at reconciling conflicting interests. In the past few decades the tension between the competing interests has intensified, and contemporary global copyright discourse has focused on the relationship and tension between traditional copyright interests and fundamental rights, such as freedom of expression, data protection and privacy. Against this background, a new path is gradually emerging in European and English copyright law, in which a new standard -- "proportionality" -- is being established to moderate the growing constitutional tension. The notion of "proportionality" is an acknowledged principle in European law. This article attempts to examine the relatively brief, recent history of the proportionality test as implemented in the copyright sphere, and understand its potential trajectories. Proportionality has been adopted as a measure for scrutinizing remedies granted in cases of copyright infringement. A growing body of literature acknowledges that remedies affect the scope of rights. The implementation of the proportionality test as a remedy-based measure in the copyright context firmly supports this position. The development of the new standard in European and English copyright law thus far, sketches a picture of a sophisticated vehicle for adjusting remedies to constitutional tensions within the substantive civil-copyright arena. The strength of this mechanism lies not only in its flexibility but also in its ability to simplify acute conflicts between competing fundamental rights and transform them into a dialogue which involves a more factually oriented balancing of interests, examined through the prism of remedies. The proportionality test therefore, may indeed take European intellectual property law to its inevitable new constitutional phase.

This book explores the use of the doctrine of good faith in the common law when interpreting contracts and resolving disputes. This doctrine is well-accepted in civil law, is reflected in international commercial law, and is a fundamental aspect of private law in the USA. However, its use in the UK is extremely limited. Inconsistent application has given rise to confusion and uncertainty. This apparent antipathy is somewhat hard to fathom, given its previous widespread acceptance in English law. The book explains in depth the history of good faith in English law, and clarifies its current status in English, Australian and international law. It explores the relationship between good faith within contractual relations and the neighbour principle in tort law, and notes the workability of good faith in the commercial context of insurance. This will be welcomed by contract lawyers in both common law and civil law jurisdictions. A subsequent volume will explore how acceptance of good faith in the law might lead to a re-interpretation of existing contract law doctrine.

Slapper and Kelly’s The English Legal System explains and critically assesses how our law is made and applied. Annually updated, this authoritative textbook clearly describes the legal rules of England and Wales and their collective influence as a sociocultural institution. The English Legal System greets a new decade by responding to the latest legislation and case law as well as providing new material on topics such as the new Supreme Court; the criminal justice system; the remodelled legal professions and human rights and European law. Further to this coverage, the book benefits from an increased level of cross-referencing with its highly acclaimed Companion Website. Adopted by generations of students, Slapper and Kelly’s The English Legal System is a permanent fixture in this ever evolving subject. www.routledge.com/textbooks/9780415566957

The European Union Institutional Network on Anti-Fraud

A recent European Union (EU) Directive which comes into force in 2008 could have potentially unforeseen and damaging effects on clinical magnetic resonance imaging (MRI). The scientific basis for the Directive is weak, and leans heavily on the ‘precautionary principle’ in deciding its restrictions, while having little or no substance to support them. In April 2004, the EU Parliament enacted the first of three Physical Agent Directives, in this instance dealing with occupational exposure to electromagnetic (EM) radiation (EU Directive, 2004). Legislation implementing this Directive has to be taken on board by all EU member countries – including the UK – by 30 April 2008.