Perspectives of Business Law Journal

from November 2012
Last Number: November 2013

Bucharest Academy of Economic Studies
ISSN 2286 – 0649


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Year 2013

  • Nbr. 2, November 2013

Year 2012

Nbr. 2, November 2013

Summary

Guarantee on all the assets of the debtor in insolvency proceedings

Unsecured creditors in the insolvency of the debtor's creditors are those who do not have collateral security against the debtor's assets and who are not accompanied by liens privileges whose claims are current at the opening proceedings and claims us for current activities during observation. In the matter of the bankruptcy secured creditors set for secured debts are claims receiving collateral on the debtor's property, whether it is the primary obligor or third party guarantee to persons be...

Fraud in electronic commerce

Electronic commerce is experiencing a great extent, and about the same extent fraud seeks - and sometimes is the place to impressive levels. Moreover, computer fraud and, the actors' they do not seem to suffer from the global economic recession and get as sophisticated as a legitimate business model and one of the most important dimensions of the work of modern organizations is the manipulation of information (collection, processing, storage, distribution, etc.). This component informational ...

Conflict management. Some prospects on the labor conflicts

Managers wish for harmony within their organizations, that the satisfied employees to work in well balanced teams in order to achieve the institutional goals without taking into account the individual and cultural differences, personal or group interests. Conflicts can be classified according to several criteria. This study aims to present the particularities of conflict resolution within labor relations. Starting from the analysis of the conflict concept viewed from several perspectives, inc...

The application process of hamburg rules, given the context of the emergence and entry into force of the new romanian civil code

The paper aims to conduct a comparative analysis and tries to offer an objective point of view regarding a number of questions arisen in practice, related to the applicability of the 1978 Hamburg Rules and keeping public order of Romanian private international law, such as those that aim at: agreeing upon the applicability of the foreign law by the Romanian parties; applicability of the Hamburg Rules; public nuisance of the Romanian private international law; character of public policy rule o...

Controversies and practical solutions regarding the award of contracts for the delegation of the management of administration services of the public and private domain of the territorial administrative units

This study analyzes the teething troubles met by local public authorities when organizing and applying tender proceedings for the award of delegation contracts for the management of the administration services of public and private domain of the territorial administrative units in view of the Law no. 51/2006 regarding the public community utility services and aims to provide practical solutions for interpreting and applying conflicting provisions of the regulations in force. In order to suppo...

Brief considerations on the warant, as representative title of goods in warehouses, analyzed from the perspective of its function of payment instrument, in the light of special regulations and provisions of the new civil code

In terms of terminology, both the doctrine and national regulation or community law are making confusion between the terms "payment instruments" and "means of payment" when they need to designate the document through which is made the payment to a pecuniary obligation by the debtor. In order to highlight the legal status of warant as payment tool of international trade law has been used both the method of comparative law and rules of interpretation specific to the international trade law scie...

Unfair contractual terms and practices in relation between professionals

The purpose of this study is to analyse the main elements of novelty brought by the transposition of the Directive 2011/7/EU of the European Parliament and of the Council on combating late payment in commercial transactions in the Romanian national legislation by Law no. 72/2013 on the measures for combating late payment of a certain amounts of money resulting from the agreements concluded between the professionals and between professionals and contracting authorities. The current analysis is...

Role of arbitration as an alternative to state justice

Arbitration is an alternative jurisdiction to state justice, characterized by privacy. As part of managing this type of jurisdiction, the parties to the dispute and the competent Arbitral Tribunal may establish other rules of procedure which may depart from common law; such rules shall not be contrary to public order or to the binding provisions of the law.

Some considerations regarding the revocation of the company director

In principle, in Romania, according to current regulations, the director of a company can not address the court against the decision of the general meeting of shareholders through which he/she was revoked from his/her position, regardless of the reasons for the revocation. However, if the director is also the shareholder of that company, he/she may appeal the decision of the general meeting of shareholders, for other reasons than the revocation itself. This is the case even if, by that decisi...

Comparative study: Limited liability company versus unlimited liability company

Our goal is to differentiate between the legal regime of the limited partnership and that of the unlimited company, by drawing a comparison between civil and special settlement in terms of the following criteria: definition, contributions, capital divisions, the Articles of Association, registration, management control, withdrawal/exclusion of a partner, dissolution/ liquidation. The opinions expressed in the chapter devoted to conclusions are relevant to Romanian and French Law as well.

The identity crisis of the labour law

Labour Law is dealing with a period of tremendous changes, which may jeopardise its legitimacy. It may be even true that labour law is living now its last days, and only a possible ‘reinvention’ may lead to its survival. One of the reasons for this crisis is found in the evolution of the relation of the labour law with the "mother" branch, civil law. The paper is proposing an exam of the flexible relation between labour law and civil law and to react to the tendency of the reincorporation of ...

The oil and mining concession in european perspective

The importance of invoking national interest and dispute over natural resources has increased in direct proportion to the growing importance of these resources and decrease inversely with quantity. A dull but intense battle at this point characterizes natural resource, especially of oil and mining of precious metals. Therefore, we can say that the power exerted on natural resources establishes a hierarchy of states of the world economic power and living standards of the population. Use of nat...

The copyright on the intellectual property expert report. Consequences

Currently, according to the law, the expert is treated as a witness, and the expertise - presented as a report - is treated as a work implemented in support of justice only. Referring to the intellectual property, an expert report is often a research work with pronounced character of investigation. According to the copyright law, such a unique work should be cited even in the court device resolution, scientifically commented, as bibliographical source. The immediate consequence in support of ...

Marine piracy in Somalia - Past, present and future

The interestingness of marine piracy issue in Somalia is caused by the fact that firstly, piracy problem is often shown and discussed in mass media and secondly because it is still an unsolved trouble. Finally pirates attacks in Somalia have a great influence on late delivery of cargo ships’ goods. Somalia is said to be the easiest and the most attractive region for pirates attacks. In fact, it is the truth because Somalia is an example of state with inner destabilization and without legal au...

The role of state powers in the development of business environment

The purpose of this paper is to provide a thorough analysis of state powers in the context of today's business environment both nationally and internationally. The authors use the SWOT management method using structured interviews, in certain key areas, of a group of 30 experts from both legal and academic and that of the SMEs, in order to analyze and to form a guide of best practices for workers in local government in Bucharest, which directly influences the foreign investments in the Romani...

Mediation clause in commercial contracts (The advantages of mediation clause in commercial contracts)

It often happens that the end of the contracts to be existing commercial relationships and a new contract has already intuitu personae character. But not always the case, that those who enter into legal commercial forcing consideration to the benefits and under commercial contracts, know the dealer or individual that established commercial relations. These traders resort to contractual conditions which states precisely the extent of the obligations assumed by each party, setting rules, deadli...

Discrimination by association in european law

The european law prohibit direct and indirect discrimination and harrasment on grounds of sex, racial or ethnic, religion or belief, disability, age or sexual orientation. The question is what is the situation when someone is discriminated on can claim to be the victim of unlawful discrimination because he or she is associated with another person who has the protected characteristic. The the Court of Justice of the European Union’s judgment in Coleman v Attridge Law and Steve Law confirms, fo...

Validation of the derived law norm in the european and international law

Throughout realizing the study we analyzed the validity of the European law norm resulting from the derived sources of law with obligatory force (regulations, decisions and directives) in connection with the European law norm, the national law norm and the general principles of law considering the jurisprudence of the European Court of Justice and the supremacy of the European Union law also over national constitutions. Thus the European Union represents a new law order, having as subjects no...

Aspects concerning the joint venture under the regulation of the new civil code

The New Civil Code makes the transition, for the first time in the Romanian legal system, from the duality to the unity of private law. Consequently, the Civil Code contains a legal regulation more structured and comprehensive, although not entirely safe from any criticism, in relation to the company, with particular reference to the simple company, regulation that expressly characterizes itself as the common law in this field. Within these general provisions, the legislator has considered th...

The control of concentrations

Concentrations of companies have developed in the last 40 years, as an effect of open borders within the European Union. The question from the point of view of competition is if setting up a new group or entity may have the same restrictive effects of an agreement. In addition, that may lead to monopoly or oligopoly, which prevents effective competition. Concentrations are situations when one or more companies acquire control of other companies, changing the structure of the companies involve...

Some thoughts on the interrelation of article 7 TEU with the EU fundamental rights agency

Much have been written, critically evaluating the sanction mechanism included in article 7 TEU regarding the sanctions to member states for serious and persistent breach of the values of the Union. Although the institutional framework is adequate and its use necessary, the lack of political will has led to inactivity of the provision. On the other hand, the fundamental rights agency was established for monitoring human rights throughout the Union, in order to ensure full respect for fundament...

The physical and/or psychic inability dismisall of the employee in romanian labour law

On the historical and legal side, the physical and/or psychic inability of the employee to provide the corresponding post in which he was employed as a basis for the contract of employment that equated professional discordance (article 130 paragraph 1 letter e of the Labor Code of 1973, adopted by law No. 10 of 25 November 1972). Dismissal for medical reasons is one of the cases of termination of the individual contract of work from the employer, which excludes the employee's contributory neg...

Specialized courts of the European Union

Treaty of Lisbon entered into force on 1 December 2009, improved functioning judicial system European Union ( EU). Court of Justice of the EU has been reformed, said Treaty changing the EU courts so very name : Court of Justice of the EU, the Court referred to above, the Court of First Instance, and specialized courts, known previously, judicial panels. The paper shows the first part of his creation, composition and competence of the specialized courts, and as a manifestation of them in the s...

Customs duties. Customs tariff

Romania Import Tariff is from 1 January 2007, the Common Customs Tariff of the European Union. Applicable in all EU Member States, it ensures the smtooh functioning of the European internal market. From 1 January 2007, as a member state of the European Union, Romania applies the EU Common Customs Tariff. Common Customs Tariff duties lists applied to each tariff line imports from third countries, by all EU Member States, the regime most favored nation clause. Customs duties included in the Com...

The main operations of reorganization through mergers of trading companies

Notwithstanding the optimistic forecasts issued by experts a couple of years ago, the economic predicaments of the European Union’s member states, including Romania, are far from being settled. The extension of the economic and financial dowturn, the continuing process of globalization and the financial markets’ volatility have imposed an unparalleled flexibility upon the economic agents, in that the amount of mergers and acquisitions has risen at a both national and international level. This...

Several aspects regarding orphan works after the adoption of EU Directive 2012/28/EU of the European Parliament and the Council of 25 October 2012

This study aims at presenting the new legal provisions at EU level regarding orphan works (Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works) and their transposition into national law. The study explains the content of the Directive and raises some issues regarding the transposition into national law. It also highlights several problems which can occur in this process because of errors in translation.

University autonomy and academic freedom - Meaning and legal basis

The University autonomy and academic freedom are principles that govern higher education in Romania, and also lifelong learning. The importance of these principles for the proper functioning and development of higher education is highlighted in the national and international reference documents. Consequently, a correct definition and circumstantiation of them are essential to give support and substance to this development. Considering the importance and necessity revealed, this study aims to ...

Insurance intermediaries

The actual Civil code regulates for the first time in the Romanian legislation the intermediation contract, until its entering into force existing multiple situations that lent themselves to this legal operation, but did not benefit of such particular legal rules. Yet, the case law has shown that the situations that arise in the activity of the legal or natural persons are much more complex, this leading, in time, to the reglementation of such particular rules. Such a case is that found in th...

Domestic legal framework for PPPS and implication of the EU rules

The paperwork aims at analyzing the domestic legal frame work and the implication of the Public Private Partnerships EU rules at national level, especialy the Romanian case. Among the multiple positive goals of the Public Private Partnerships, the paper takes into consideration the fact that the PPPs are one of the the solutions to overcome the generalized sub financing situation of the public spending and investments. To value this particular quality of the the PPPs, they should be ruled in ...

Perspectives a uniform legal framework of contracts in the European Union

The EU ideals and objectives are constant throughout the history of this international organization: the creation of a single internal market and a complete integration. The EU law provides for both rules of substantive law and rules of conflict regarding international trade activities. It can be easily seen, however, that there is no text (Regulation or Directive) on the common law of contracts. The lack of a text on the common law of contracts, containing general rules, makes the European p...


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