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არასრულწლოვანის საკუთრებაში არსებული ქონების განკარგვის თავისებურებები
No full textThe continuous improvement of the legislation, especially when the issue concerns the disposal of the property owned by the juvenile, should be evaluated as an expression of public and private interests. After all, the well-being of each participant in the civil turnover, including juveniles, significantly depends on the perfection of the legal framework, the correct formation, and the implementation of which guarantees the stability and satisfaction of their interests. In modern legal systems, each subject of law should have the opportunity to analyze the norms and, as necessary, use the means of protection of the rights. Despite this, the substantive regulation of the issue in Georgia, as well as the provision of fast and accessible forms of solution to the issue in the relevant direction from the procedural point of view, remains a challenge.
Therefore, it is considered essential to improve the norms of the Civil Code of Georgia, which increases the risks of non-uniform interpretation of the norms related to the disposal of property owned by the juvenile. This significantly leads to eliminating both legislative gaps and indistinctness in practice. In addition, procedural legal regulation harmonized with international development trends about issues related to the disposal of juvenile property will significantly determine the proper functioning of the court system, contributing to the perfection of the system of the means of dispute resolution existing throughout the state.
Keywords: Legislation, family, court
Introduction
Legislation in any field of law is usually the result of the existing state policy about the relevant issue. It can be said that each issue regulated by law is administered based on its political and legal weight. In a specific period, the legislator responds to the actual legal problem by establishing legal mechanisms to protect the proper rights. However, the provisions of the law may allow different interpretations. The definition of legal norms is important in this process because it involves clarifying its content - to determine what the legislator has woven into it.[1]
After ratifying the Convention on the Rights of the Child on November 20, 1989, Georgia was obliged to provide the child with the protection and care necessary for his well-being. Actually, by adopting the mentioned Convention, the General Assembly of the United Nations put an end to almost ten years of discussion regarding the possible results of adopting the Convention and its positive aspects.[2] It has been noted that the state Parties to the Convention shall consider the rights and duties of the parents, representatives, or other responsible persons by law and shall take all appropriate legislative and administrative measures for this purpose (the second part of Article 3 of the Convention).
It should be noted that the convention contains the most general provisions about the protection of children’s rights and establishes goals but does not contain regulations about the mechanisms for enforcing the provisions.[3] Therefore, it is logical that the legislative framework of child protection existing throughout the state of Georgia has not been considered to be perfect until the Code on the Rights of the Child was adopted in 2019, which finally helped the process of forming a unified, systematic vision of the protection of child rights. By adopting the Code on the Rights of the Child, Georgia attempted to get closer to international approaches in the relevant field to harmonize the legislation with the relevant standards. A number of legislative changes have been made, including changes to the Civil Code, so that such actions would not or could not be carried out, which would create a substantial threat to the legal interests of a juvenile and, upon reaching the age of majority, she/he would be deprived of the opportunity to restore the violated rights.
According to the current regulations in Georgia, in civil legal relationships, a juvenile is also considered alongside a legally capable and effective person, who, taking into account certain peculiarities, can also participate in the relationships in civil turnover—the person having civil rights and duties. However, civil legislation offers a specific regulation about the issue, which is determined by maintaining the stability of the civil turnover. Despite that, the perfect functioning of the state-wide justice system in Georgia, from the point of view of protecting the property rights of juveniles, remains challenging. Despite the efforts to improve the civil legislation, it contains vagueness, which increases the risks of misinterpretation of the legislation theoretically and practically. Taking into account the relevance of the issue, the structure of the regulatory norms existing in the relevant direction is discussed in the paper. The correct perception of norms and proper application in judicial practice are discussed. It explains how the grounds for the disposal of the active estate owned by the juvenile should be perceived and what their legal aspects are. As a methodological basis of the paper, general scientific-historical and, special-normative and comparative legal research methods are used.
1. Disposal of the property owned by the juvenile, as part of the unified system of the norms that require permission
From the point of view of civil law, in the legal systems of modern states, the issue of protection of property rights of the juvenile, at least at the level of theoretical declaration, takes an important place.[4] Today, it is recognized that a child has separate and independent property from his / her parents.[5] The need to act in accordance with the best interests of the child is a principle on which family relations are based. However, from a practical point of view, this principle is abstract and theoretical.[6] The mentioned connects psychoanalytics and public policy.[7]
It should be noted that the first part of Article 63 of the Civil Code of Georgia, from the time when the Civil Code of Georgia came into effect, indicated the need to consider the interest of a juvenile when concluding an agreement and linked the validity of the contract to the fact of getting benefits by the juvenile. The mentioned issue was determined by the decision of the juvenile’s legal representatives, which belonged to the subjective category. Therefore, considering only the relevant issue, making an objective and complete assessment was impossible. Vague, subjective, and general circumstances could be the circumstances that could be considered to have been beneficial for a juvenile. As a result of adopting the Code on Children’s Rights, the mentioned issue was regulated, and the need to match the agreement’s content with the juvenile’s best interests has been determined at the legislative level. And since 2020, the second part of Article 183 of the Civil Code of Georgia has been amended, according to which “An immovable thing owned by a child may be disposed of by his/her parent or other legal representative in the best interests of the child, based on the consent of the court”. So, based on the mentioned norm, the subject of judicial research is the determination of the circumstances if the alienation of the immovable object is derived from the child’s best interests.
Changes have also been made in the cases of concluding a contract regarding the movable materials. In Article 186 of the Civil Code of Georgia, it has been stipulated that the disposal of the movable object of a value of more than 1,000 GEL owned by a child, by his parent or other legal representatives, is possible only based on the approval of the court, taking into account the best interests of the child. In relation to the issue, it should be noted that the Civil Code of Georgia does not define the legal definition of the term movable object, unlike, for example, the German Civil Code, according to which “objects according to this law are considered to be only physical objects”. According to the opinion existing in the legal literature, objects are impersonal, divisible, subject to the domination of persons, separated by nature and physically united things.[8] Considering the above, if we interpret the specified norm of the Civil Code of Georgia in a literal sense, its effect should not be extended to assets worth more than 1000 GEL, which does not meet the definition of a movable object.
It should be emphasized that in practice, an interesting case of giving consent to the disposal of movable property of the juvenile is the disposal of the financial resources placed on the deposit. This type of case has been reviewed by the courts several times.[9] Although the legislation does not unequivocally require the presence of court approval for the mentioned issue, and the deposit/account does not belong to the category of movable property, in accordance to the practice established in Georgia in recent years, the presence of a court decision of the appropriate content is required by the banking institutions, to dispose of the financial resource existing on account of a juvenile. Accordingly, it is clear that the current edition of the norm does not reflect the content of its use in practice, and in fact, its definition is much broader.
Accordingly, as a result of the analysis of the article, it is determined that the legislator, to ensure the proper protection of the best interests of the child, extended judicial control to the cases of disposal of movable and immovable property and left the cases of the disposal of immaterial property beyond regulation. On the other hand, claims and rights belong to intangible assets (Article 152), the so-called “Incorporeal things”.[10] Prerequisites for recognition of the rights and claims as intangible properties (objects) are a. Turnability - possibility to transfer the active to other persons, b. Material usefulness, c. The right to demand something from another person.[11] It is important to state that, the disposal of the request or right owned by the juvenile by the parent may also interfere with his /her legal property interests.
Considering the above, it is possible to say that implementing legislative changes is deemed necessary. In particular, it is desirable to amend Article 186 of the Civil Code of Georgia and to the list of agreements subject to judicial control mentioned in the Civil Code of Georgia, add the disposal of the financial resource existing on the bank account/deposit, if the total amount of the financial resource on the deposit/account exceeds 1000 GEL; Also - disposal of another type of claim or right, if the amount of the claim or right exceeds 1000 GEL. This is necessary to eliminate the ambiguity regarding the definition of the article and the possibility of its possible misinterpretation.
2. The procedural side of the issue
According to the abovementioned, it is established that the issue of disposing of the property owned by a juvenile is considered a material legal basis of the requirements, which, in the presence of relevant factual circumstances, is followed by the necessity of court permission for such a transaction (disposal).
Therefore, a special procedural means could have been considered in Georgian legislation to resolve a material-legal issue of a similar nature. However, when applying to the court regarding the issue of the disposal of the property of the juvenile, no special norm regulating this relationship has been developed, which should be considered as a kind of legislative deficiency. Therefore, the practice has been formed as follows: as a rule, the norms established by the Code of Civil Procedure of Georgia are used in this direction, and the issue is considered through undisputed proceedings.
Accordingly, it is important to determine to what extent it is appropriate to transfer issues of the relevant content to the judge for consideration, taking into account that the timely and effective decision of the issues related to the disposal of the property owned by the juvenile has critical importance; In addition, it is also known that the Georgian justice system is overloaded and the procedural deadlines are significantly violated. Therefore, it is important to assess the issue; if it would be possible to delegate the relevant authority to consider the cases to another official, that would also complete the chain of justice and, to some extent, relieve the courts of this particular type of cases. This could be evaluated as an attempt to reduce the flow of court cases with adequate legal instruments that would ultimately improve the unified chain of justice operating throughout the state.
For example, German practice should be considered in this direction. It is worth noting that in Germany, the application for permission to dispose of the property of a juvenile is not considered by the judge but by the so-called “Rechtspfleger”.[12] This is a court employee who has a higher legal education, is employed in the justice system according to the established procedure. He/she does not represent a judge but has the competence of a delegated judge based on the legislation.[13] The establishment of a relevant legal institution in Germany has been caused by the fact that the judges have been overloaded with cases. With the instances having a complex nature, they had to consider many cases of a less complex nature. Therefore, from 1909, part of the judge’s powers have been transferred to the “Rechtspfleger”. This was first regulated based on administrative orders and then on a special law adopted in 1957. Today, representatives of the mentioned profession perform their activities independently and based on the law.[14] However, it is clear that they do not enjoy the same standards of independence established for judges.[15] In fact, they replace the judge in relation to the specific issues to be decided by the court. For example, in the field of family law, they consider the cases having the following content: about the appointment of a legal representative, establishing paternity, and discussing the issues related to adoption.[16] They consider cases related to the registration of property, real estate, and a number of commercial cases,[17] also – about the enforcement procedures.[18]
These officials are not assistants of the judge but work parallel to them and are responsible for making independent decisions regarding the cases within their competence.[19] An institution similar to the one mentioned also operates in Austria, where the powers of relevant officials are even wider.[20] Also: in Estonia, Poland, Czech Republic, Slovenia, Bosnia-Herzegovina,[21] Belgium, Finland, France, Hungary, Italy, Luxembourg, Spain, Sweden.[22]
In the states where this position has been introduced, it is considered an important contribution to the administration of justice. Although the scope of powers delegated varies in each state, as a rule, the approach to the following issues is uniform: 1. Cases of a specific content subordinated to the court are handed over to the mentioned officials for consideration. 2. Any person who wishes to work in the proper position must satisfy the criteria established by national legislation related to education and qualifications. It should also be emphasized that in 1995, a model statute was adopted in Spain to regulate the activities of relevant officials. [23]
Considering the above, introducing a similar status in the Georgian judicial system would be evaluated as a regulation harmonized with international development trends. It would significantly help the consideration of juvenile cases in court proceedings and contribute to overcoming the challenges in the judicial system. It will contribute to perfecting the judicial system and form an efficient and flexible one.
Timely resolution of the cases is important to the extent that justice that cannot be achieved within a reasonable period is unattainable.[24] Additionally, the question of access to justice, which has become relevant since the 60s of the last century, is still a subject of global discussion.[25] Among them, it is relevant in Georgia. Therefore, it would be a useful innovation to propose appropriate regulation. After all, private law should reflect and serve the implementation of public policy.[26]
Conclusion
Within the framework of the work, it has been confirmed that it is important to excel in the norms of the Civil Code of Georgia, which regulates the issue related to the disposal of property owned by juveniles. The issue is noteworthy both - from a substantive and procedural point of view. In the presence of an imperfect legal base in Georgia, the issue is subject to revision and analysis. Within the framework, it was determined that considering the unification process of law, it is relevant to excel the national legislation in the relevant direction. In addition, the law-making process should not be carried out by the automatic reception of any universal act in the mentioned field. It is necessary to analyze the existing reality in Georgia and consider the successful practices of other states. As a result of the mutual reconciliation of approaches, an adequate solution to the issue is offered. It is considered necessary to implement not episodic but fundamental legislative changes. This includes the reasoned convergence of the Georgian Law Institute and ensuring its compliance with the standards of leading democratic values-oriented legal systems.
In particular, it is desirable to amend Article 186 of the Civil Code of Georgia and to add to the list of the contracts subject to judicial control - the disposal of the financial resource on the bank account/deposit if the total amount of the money on the deposit/account exceeds 1000 GEL; Also - disposal of another type of claim or rights, if the amount of the claim or right exceeds 1000 GEL. This is necessary to eliminate the existing ambiguity regarding the definition of the article and the possibility of possible misinterpretation.
In addition, it is desirable that the category of the cases related to the disposal of the property of a juvenile should not be considered by judges, but in this direction, the practice of several European states should be taken into account, where the permission for the disposal of the property of a juvenile is considered by an official so-called “Rechtspfleger”.
Implementing the mentioned changes will enhance Georgian law and ensure its compliance with the standards of the leading democratic values-oriented legal systems. This will eliminate legislative gaps and ambiguities in practice.
Bibliography
Normative acts:
The civil procedure code of Georgia. https://www.matsne.gov.ge (In Georgian).
The civil code of Georgia. https://www.matsne.gov.ge (In Georgian).
Scientific literature:
Burduli, I. (2020). For the issue of disposal of real estate owned by a juveline by a parent. Journal of Comparative Law.
Zoidze, B. (2003). Georgian civil law. Tbilisi.
Chanturia, L. (2011). Interdiction part of civil law. Tbilisi.
Khubua, G. (2015). Theory of Law. Tbilisi.
Jugheli, T. Makhatadze, N. 2023. Current challenges of the legislative regulation of the issue of juvenile property disposal. Tbilisi.
Albayrak, S. (2018). Freely Disposable Property of Child. Selcuk Universitesi Hukuk Fakultesi Dergisi.
Arkuszewska, A. (2012). Jurisdictional Status of the Polish Rechtspfleger. Annales Universitatis Apulensis Series Jurisprudentia.
Buxton, T. (2002). Foreign Solutions to the U.S. Pro Se Phenomenon. Case Western Reserve Journal of International Law.
Cappelletti, M., Garth, B. (1978). Access to Justice: The Newest Wave in the Worldwide Movement to Make Rights Effective. Buffalo Law Review.
Engle, E. (2011). The Convention on the Rights of the Child. Law journal QLR 29.
Fenge, H., Cramer-Frank B., Westphal Th. (1995). Remedies concerning Enforcement of Foreign Judgements. Legal Education and Training in Europe.
Freeman, M. (1997). The Best Interests of the Child? Is the Best Interests of the Child in the Best Interests of Children? International Journal of Law, Policy and the Family.
Holvast, N. (2014). Considering the Consequences of Increased Reliance on Judicial Assistants: A Study on Dutch Courts. International Journal of the Legal Profession.
Kapp, Th. (2009). A European Rechtspfleger for the European Union. International Journal for Court Administration.
Kappl, T. (2016). Strong Justice for a Strong Europe: A European Rechtspfleger. International Journal for Court Administration.
Leblanc, J. (1991). The Convention on the Rights of the Child - Current Legal Developments. Leiden Journal of International Law.
Ionescu, R. (2021). The Best Interests of the Child, Annals of “Dunarea de Jos”. University of Galati: Legal Science.
Oberhammer, P. (2006). Civil Enforcement in Austria. European Business Law Review.
Omerspahic, Z. (2018). Child Property Rights - A Child as a Shareholder. South East European Law Journal (See Law Journal).
Schack, H. (1993). Private Lawyers in Contemporary Society: Germany International Association of Legal Sciences Symposium: National Reports Case. Western Reserve Journal of International Law.
Singer, J. (2023). The Right to Have Property A Presumption of “Possible”. Texas A&M Law Review.
K. (2014). German Rechtspfleger. Germany.
Van der Weide, J. (2020). Remedies concerning Enforcement of Foreign Judgements. Common Market Law Review.
Footnotes
[1] Khubua, G. (2015). Theory of Law. Tbilisi. 149.
[2] Leblanc, J. (1991). The Convention on the Rights of the Child - Current Legal Developments, Leiden Journal of International Law. 281.
[3] Engle, E. (2011). The Convention on the Rights of the Child. Law journal QL
WOMEN’S POLITICAL RIGHTS IN INTERNATIONAL LAW AND PRACTICE IN VIETNAM
Full text linkAs one of the fundamental human rights, political rights guarantee that persons can equally participate in socio-political life or management of the state and society without any unreasonable restriction. Ensuring women’s political rights is an important basis for improving women’s status in society. Although ensuring women’s political rights has gained many achievements in Vietnam, there are still many limitations. Through a systematic analysis of the provisions of the International Conventions on Human Rights, the article explains the content of women’s political rights and defines the obligations that must be complied with by the member states to ensure the political rights of women. In addition to practical analysis, the data about the exercise of political rights of women, such as the percentage of female deputies to the National Assembly, the percentage of women participating in the People’s Council, female cadres and civil servants participating in the political processes are collected, thereby the article makes some comments on the achievements and limitations in performing national obligations of Vietnam to ensure political rights of women. The article points out the causes of the limitations and proposes solutions to improve the effectiveness of ensuring women’s political rights in Vietnam.
Keywords: political rights, international conventions, women, human rights, Vietnam.
Introduction
To understand the concept of women’s political rights, it is necessary to clarify the concept of politics. Politics is an objective phenomenon of social life, an important part of the superstructure in society that forms the state; it is expressed through class, national, and international relations in gaining, retaining, and exercising state power and people’s participation in state affairs. There are many different definitions of political rights. According to Black’s Law Dictionary, political rights are the rights that can be exercised during the establishment or management of government. The rights of citizens are established or recognized by the Constitution so that they can participate directly or indirectly in the establishment or management of government. According to the Law Dictionary (1999), political rights are defined as the rights of citizens to participate in state management. It is considered the most important right of citizens in their lives by which they exercise their rights to master the country and society. Political rights are exercised in many different ways, such as the rights to vote or stand for election to state agencies, to participate and contribute opinions in the development of social policies, to participate in building and developing the laws, to monitor the activities of state agencies and social organizations, to make recommendations to state agencies, and to vote when the state conducts a referendum.
Human rights generally include civil-political rights and economic-social-cultural rights. In particular, women’s political rights are important human rights of women, including the right to vote, the right to stand for election, and the right to participate in state management, etc. These rights are guaranteed by the constitution and the law, establishing equality between women and men in their legal capacity to participate directly or indirectly in state and social management. In the global development trend, women’s rights attract more attention from society. Enhancing the position of women in politics plays a particularly important role in enhancing the position of women in society, as how women exercise their political rights is one of the best measurements for evaluating the role of women in political life in particular and society in general. Women’s political rights have the following main characteristics:
Firstly, women’s political rights are a factor that positions women’s and men’s equality in political and social life. Thereby, the participation of women in the decision-making process associated with their rights and obligations in all fields is ensured. This is equality, in essence.
Secondly, women’s political rights are a legal form demonstrating the democratic and equal nature of society. Women’s participation in the decision-making process at all levels ensures that state policies take gender equality into account and reflect democracy in society. According to the United Nations Charter on the Elimination of All Forms of Discrimination against Women, the exercise of women’s political rights must be guaranteed by three principles: equality, non-discrimination, and responsibility of member states, in which responsibility of member states ensure the social democracy concerning to women’s political rights.
Thirdly, the exercise of women’s political rights is the condition for the full realization of women’s economic, cultural, and social rights, as human rights are the unification of two groups of rights: political-civil rights and economic-cultural-social rights. It has practically been proven that women only have the opportunity to exercise their rights when they are involved in leadership and management in society. Therefore, political rights are the most basic and important rights to achieve gender equality.[1]
The exercise of political rights is a measure of gender equality. However, a gap still exists between the rights stipulated by the law and practice. The average proportion of women participating in national legislatures is only 16%, in the United Nations embassies is 9%, and in cabinets is 7%. The number of countries with women serving as the head of government (president or prime minister) is just 7 of the 190 countries in the world. The proportion of women serving in parliaments is a criterion for evaluating women’s participation in the political system. As of 2009, only 23 countries in the world achieve a rate of 30% or more of women serving parliament.[2]
1. Methodologies
The article uses the method of synthesizing and generalizing the content of international instruments on women’s political rights to point out the national obligations of Vietnam to ensure women’s political rights. By data collection and analysis methods, the article evaluates women’s participation in international commitments and assesses the practical exercise of women’s political rights in Vietnam concerning the exercise of men’s political rights. Moreover, using historical methods, the article points out the formation and development of Vietnamese law on women’s rights. Based on the current practice in Vietnam, the article proposes several recommendations to strengthen the exercise of women’s political rights in Vietnam.
2. Study Results
2.1. Women’s Political Rights in International Instruments and the Participation of Vietnam
Women’s political rights are recognized in many international instruments. The instruments on women’s political rights include two main groups: (1) international instruments recognizing political rights for humans in general based on promoting equality in dignity, such as the Universal Declaration of Human Rights 1948, Convention on Civil and Political Rights 1966; and (2) international instruments recognizing women’s rights, including Convention on the Political Rights of Women 1952, Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) adopted by the United Nations General Assembly in 1979; The Beijing Declaration and the Platform for Action adopted at the Fourth World Conference on Women held in Beijing (China) in 1995; Millennium Declaration at the Millennium Summit held by the United Nations in 2000 in New York (USA). Specifically:
The preamble to the 1945 Charter of the United Nations (UN) emphasized the equality of rights between men and women. On that basis, the Universal Declaration of Human Rights (1948) established the fundamental principle to ensure the equal rights of men and women in Articles 1 and 2: “All human beings are born free and equal in dignity and rights, have reason and conscience and should treat each other in a spirit of brotherhood. Everyone is entitled to the freedoms outlined in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political opinion or belief, national or social origin, property, birth or any other status”.[3]
Article 3 of the International Covenant on Civil and Political Rights (ICCPR) also specifically protects the equal right of women to participate in political and civil life.[4] The Human Rights Committee emphasizes that state parties to ICCPR must “take effective and positive measures to promote and ensure the participation of women in the conduct of public affairs and public authorities, including appropriate affirmative action”.[5] Vietnam became a state party of ICCPR on September 24, 1982. According to the provisions of Article 40 of this Convention, Vietnam has fulfilled the obligation to submit three reports on the implementation of ICCPR in 1989, 2002, and 2019.
Convention on the Political Rights of Women 1952 stipulates that women have the right to vote in all elections on an equal basis with men, without any discrimination (Article 1). Women have the right to be elected to all public bodies established by national laws on an equal basis with men, without discrimination (Article 2). Women have the right to work in public agencies and perform all public functions established by national law on an equal basis with men, without discrimination (Article 3). Unfortunately, Vietnam has not joined this Convention.
The 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) recognizes the principle of equality between men and women in all fields. The preamble to the Convention stresses that: “The full and comprehensive development of a country, the welfare of the world, and the cause of peace require the maximum participation of women in all fields on equal terms with men”. Articles 7 and 8 of CEDAW stipulate that States Parties to the Convention must apply all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, ensure that women, on an equal basis with men, enjoy the following rights:[6] (a) to vote in all elections and referenda, to be eligible for election in all elected bodies; (b) to participate in developing and formulating government policies, to serve in the power structures and all public functions at all levels of government; (c)to participate in non-governmental organizations and social associations related to the public and political life of the country (Article 7). States Parties to the Convention must take all appropriate measures to ensure that women can represent their Governments in international forums and participate in the work of international organizations on equal terms with men and without any discrimination (Article 8). Article 11 of CEDAW and Article 14 of the Convention eliminate all forms of discrimination against women in labour and employment. Article 10 of CEDAW specifies that women and men are equal in terms of culture and society (school age, training, professional education, choice of study, access to training, and enjoyment of education and training policies). To implement this provision, the CEDAW Committee discusses and gives general recommendation No. 23 on measures that should be taken by state parties to support and encourage women to exercise their right to participate in politics, including three groups of measures.
To ensure women’s right to vote and stand for election, the state parties shall: (i) ensure a balanced ratio between women and men in holding publicly elected positions; (ii) help women understand the importance and ways to exercise their right to vote; (iii) overcome the barriers such as illiteracy, language, poverty, and other obstacles to exercising women’s political rights; (iv) Help women overcome those barriers to exercise their right to vote and stand for election.
To ensure women’s right to participate in developing policies and laws and hold positions in government, the state parties shall (i) ensure women’s representation in the policy-making process of government; (ii) ensure that women have actual and equal rights to holding positions; (iii) ensure women-targeted recruitment processes are open and attractive.
To ensure women’s right to participate in social organizations, the state parties shall (1) enact effective laws prohibiting discrimination against women and (2) encourage non-governmental organizations, political associations, and communities to agree on strategies encouraging the representation and participation of women. In addition, Recommendation No. 23 also requires state parties, in case of necessity, to take special temporary measures by each period to increase the rate of women’s participation in socio-political activities by training, educating, encouraging, and providing financial support for female officials, to set certain targets on the ratio of women serving in all levels of government as long as such a measure is appropriate and motivating.
CEDAW is one of the most widely and internationally recognized conventions on human rights, aiming to eliminate all forms of discrimination against women and help women have equal opportunities, develop their capacity, and participate in and benefit from various activities. According to the CEDAW Committee, 186 countries in the world ratify or sign the Convention, accounting for more than 90% of United Nations members. Vietnam was one of the first countries in the world to sign and join the Convention on July 29, 1980, and it was ratified on November 27, 1981. Since joining the Convention, Vietnam has made many efforts to internalize CEDAW, developed laws on gender equality, and actively conducted and completed periodic reports on the implementation of the Convention to the Secretary General of the United Nations. The CEDAW Committee has appreciated the achievements and efforts of Vietnam in implementing CEDAW since the Committee reviewed the 5th and 6th periodic reports of Vietnam in 2006.
Convention on the Political Rights of Women 1952, taking effect on July 7, 1954, specifies the obligation of state parties to adopt measures to equalize the enjoyment and exercise of political rights of men and women in accordance with the provisions of the United Nations Charter and Declaration of Universal Declaration of Human Rights. The political rights mentioned in the Convention include voting or standing for election, holding in state agencies, and performing all public functions in accordance with the law. The Convention now has 123 state members, while Vietnam is not a member of this Convention.[7]
According to the Beijing Declaration and Platform for Action (1995), women’s empowerment and decision-making positions are important in its 12 Strategic Goals. Specifically, the Declaration instructs state parties to “take measures to encourage political parties to include women in elected and non-elected public positions in the same proportion and at the same levels as men” (Strategic objective G.1.b) (the Fourth World Conference on Women, 1995).[8] Resolution 66/130 on women and women’s political participation was adopted by the General Assembly (2011) and called on state parties to “increase women’s political participation”[9] (paragraph 3). SDG target 5.5 explicitly calls on States to “guarantee women’s full and effective participation and equal opportunities for leadership at all decision-making levels in political, economic, and public life”.[10] Beijing Declaration and Platform for Action adopted at the Fourth World Conference on Women in Beijing (China) in 1995 affirmed its determination to advance the goals of equality, development, and peace for all women everywhere in the world for the benefit of all humanity. Vietnam adopted and committed to implementing the Beijing Declaration and Platform for Action 1995 with 12 goals, including decision-making and power structures and other goals such as poverty, education and training, health, violence, armed conflict, economics, human rights, media, environment, and girls.
The above analysis indicates that international human rights instruments commonly recognize women’s political rights. Most of the instruments affirmed that women have the right to fully enjoy human rights on equal terms with men. Particularly, the Convention on the Elimination of All Forms of Discrimination Against Women 1979 and Convention on Women’s Political Rights 1952 stipulate and directly address women’s political rights and the obligation of state members to adopt specific measures to ensure and promote women’s political rights, such as promulgating and developing the laws prohibiting discrimination against women, ensuring a balanced proportion between women and men in holding elected positions, enhance education to help women understand the importance and ways to exercise the right to vote, apply temporary measures to increase the proportion of women participating in political life. As a state member of the above international commitments, Vietnam must apply measures to ensure and promote women’s political rights.
2.2. Vietnamese Law on Women’s Political Rights
The Women in Politics 2009 map, created by the Inter-Parliamentary Union (IPU) and UN, Women shows that women in the world tend to participate more deeply in political-social life. In Vietnam, women participated in leadership a long time ago. In the 1st century, Ba Trung and Ba Trieu led the people to fight for independence and freedom of the country. With a tradition of patriotism, hard work, and creativity, women have played an important role in the history of building and defending the country and have been an indispensable driving force for the comprehensive development of Vietnamese society. As a result, even though Vietnam is one of the Southeast Asian countries heavily influenced by male chauvinism, the Vietnamese legal system recognized and protected women’s political rights from early times.
Women’s political rights are recognized throughout the Vietnamese Constitution. The 1946 Constitution stipulates two basic and general rights of Vietnamese citizens: “All Vietnamese citizens have equal rights in all aspects including politics, economy, and culture” (Article 6) and “All Vietnamese citizens are equal before the law” (Article 7). In particular, the most important political right of citizens specified by the Constitution is “the right to participate in the government and national development depending on your talents and virtues” (Article 7). Moreover, the 1946 Constitution also states that such participation is encouraged “regardless of race, sex, class, or religion” (Preamble to the 1946 Constitution). The 1959 Constitution inherits and supplements more detailed articles on political rights and emphasizes the legality of political rights. Vietnamese citizens, thereby, have equal rights to vote and stand for election, recall, complain, and denounce. The 1980 Constitution continues to reaffirm the principle of equality before the law of all citizens as a constitutional principle of establishing citizens’ rights. The Constitution also stipulates that political right is the right to participate in managing the affairs of the State and society. According to the 1992 Constitution, “Female and male citizens have equal rights in all aspects of politics, economics, culture, society, and family”. It provides more specific and detailed regulations on political rights and emphasizes the guarantee of the entire political system for the implementation of citizens’ political rights by the most serious and equal approach. The 2013 Constitution states that male and female citizens are equal in all aspects; the State, society, and family shall help women develop comprehensively and promote their societal role. The 2013 Constitution has many groundbreaking provisions that positively impact women’s political rights. These provisions are expressed not only in Chapter II but also throughout the whole Constitution. Everyone, thereby, must respect the rights of others. Everyone is equal before the law. No one shall be discriminated against in political, civil, economic, cultural, and social life. Male and female citizens are equal in all aspects. The State, society, and family shall help women develop comprehensively and promote their societal role. Gender discrimination is strictly prohibited.
Inheriting the Constitution, Vietnamese Gender Equality Law 2006 directly and comprehensively regulates the issues of both women’s and women’s political rights. To internalize the spirit of the International Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Clause 3, Article 5 of Gender Equality Law provides that “Gender equality means that men and women have equal positions and roles, are given equal opportunities and conditions to develop their abilities for the development of the community, family, and equally enjoy the achievements of that development. Moreover, to ensure compliance with regulations on the political equality of women, Article 40 of Gender Equality Law 2006 provides the behaviours considered as violations of gender equality law in many fields. Particularly, the behaviours that violate the law on gender equality in the field of politics include: (i) Obstructing men or women from self-nominating or nominating candidates to the National Assembly, People’s Councils, to lead the political organizations, socio-political organizations, socio-political and professional organizations due to gender prejudice; (ii) Not implementing or hindering the appointment of men and women to managers, leaders or professional positions
EU AI REGULATION: A STEP FORWARD OR AN ATTEMPT TO HALT PROGRESS?
Full text linkOn March 13, 2024, the European Parliament approved the draft “Regulation of the European Parliament and of the Council laying down harmonized rules on artificial intelligence”, and on May 21 of the same year, the Council of the European Union endorsed the said act as well. As a result, the regulation will enter into force in July 2024. It will become the world’s first legislative act to regulate all types of artificial intelligence available in the private sector.
Artificial intelligence remains one of the most important challenges of the modern world. Technologies related to it are developing at a high speed, affecting all industries and individuals. As a result, it is necessary to regulate the field as effectively as possible; however, before the aforementioned regulation, there was practically no legal framework, which especially increased its importance. It is necessary to conduct an effective analysis of the given regulation to develop an even more effective regulatory framework in the future.
Keywords: Artificial Intelligence, AI, EU Law, Regulation, New Regulation
Introduction
On March 13, 2024, the European Parliament approved, by a majority vote, the draft “Regulation of the European Parliament and of the Council laying down harmonized rules on artificial intelligence”, and on May 21 of the same year, the Council of the European Union unanimously approved the said act.[1] As a result, the regulation will enter into force in July 2024 and will become the world’s first legislative act that aims to regulate all types of artificial intelligence available in the private sector.[2]
Artificial intelligence remains one of the most important challenges of the modern world.[3] Technologies related to it are developing at a high speed,[4] which affects almost all industries[5] and even the life of an average person.[6] As a result, it is necessary to regulate the field as effectively as possible, however, before the aforementioned regulation, there was practically no legal framework, which especially increases its importance.
The draft regulation was first presented by the European Union Commission on April 21, 2021.[7] As a result, during the following 3 years, many different kinds of opinions were expressed about it, both with positive and negative evaluations.[8] However, despite the polarized reaction, the regulation was adopted without radical content changes.[9]
Considering the above, it can be said that despite the newness of the regulation, there are available academic studies related to it that have been conducted in the last three years. Using these papers and primary research, the purpose of the present paper is to evaluate the adopted regulation and provide a critical analysis of its text and potential implications.
1. The Primary Stipulations of the Regulation
Considering that the EU regulation is, in fact, the first attempt to regulate the new field, it is natural that many new provisions are gathered in it.[10] This means that there are various question marks regarding the text of the regulation, to which it is not possible to give a firm answer so far, given the lack of practical application thereof.[11]
First, it should be noted that the scope of the regulation includes the use of artificial intelligence both in the private sector and for public purposes.[12] At the same time, several exceptions are allowed in the normative act, which includes the use of artificial intelligence in the military and defence fields, as well as its use exclusively for research and scientific purposes.[13]
As for the content of the regulation, it has introduced the so-called A “risk-based” approach, in which the greater the risk arising from artificial intelligence, the stricter the rules that apply to it.[14] According to the regulation, artificial intelligence was divided into three categories based on the risk arising from the relevant AI:
Unacceptable risk - systems that are perceived as a threat to humanity. Among them, according to the examples given in the regulation, are cognitive behavioural manipulation (both of the entire population and any of its vulnerable parts), social assessment (categorizing people and/or scoring them according to their behaviour, social status or personal characteristics), as well as biometric identification and artificial intelligence focused on determining the location of people. The creation or use of artificial intelligence that includes any type of such unacceptable risk is fully prohibited throughout the EU.[15]
High risk - according to the regulation’s text, all artificial intelligence that negatively affects the basic rights of people or their safety is considered high risk. These include all types of artificial intelligence used in aviation, medical devices, automobiles, elevators, toys, infrastructure operations, education, labour and employee management, utilities, policing, migration, and legal aid. All types of high-risk artificial intelligence, before they become available to the public, must be evaluated by the relevant authority and, subsequently, subject to periodic inspection.[16]
Low risk - Every AI that does not fall into the above two categories is considered low risk. Among them is, for example, generative artificial intelligence (for example, ChatGPT).[17] Low-risk artificial intelligence is not subject to additional regulation, although it is still subject to transparency requirements.[18]
According to the regulation, when any kind of product is created using artificial intelligence, it must be identified as having been created by artificial intelligence. In addition, the manufacturer is obliged to ensure that it is impossible to create any illegal product using artificial intelligence.[19] It is also worth noting that the regulation introduces mandatory rules of conduct for all persons developing artificial intelligence, the purpose of which is to further increase the level of security.[20]
Another important issue regulated by the regulation is the creation of relevant bodies related to artificial intelligence issues. An artificial intelligence office and a scientific panel of independent experts will be created within the commission. Additionally, an Artificial Intelligence Council formed by representatives of the member states will be created, with which a forum of interested parties will work, which will periodically submit recommendations to the Council.[21]
If an AI producer violates the rules set out by the regulation, it will be subject to a fine, the amount of which will be determined by the Commission’s Artificial Intelligence Office,[22] which may represent a set percentage of the company’s global turnover, which in some cases may be an exceptionally large amount, increasing the Office’s Probability of successful enforcement of decisions and the regulation requirements in practice.[23]
Finally, it should be noted that the regulation also aims to promote innovation. According to the regulation, member states are obliged to support independent businesses and start-ups, as well as private individuals, in researching and creating artificial intelligence in such an environment that it can be presented to the general public only after it is confirmed that the risks associated with it are minimized.[24]
The regulation enters into force gradually and will be fully effective within 24 months after its publication. However, there are special provisions related to high-risk artificial intelligence, which will enter into force within 36 months after publication.[25]
2. The Set Purpose and the Fulfillment thereof by the Text of the Regulation
In the preamble of the regulation, it is emphasized that its purpose thereof is to ensure the protection of basic human rights and to limit as much as possible their violation using artificial intelligence.[26] However, it is important to highlight that the regulation deals only with some issues related to artificial intelligence and cannot be considered a normative act that regulates all topics associated with the creation and use of artificial intelligence.[27]
Today, there is an active debate on the creation of artificial intelligence and the so-called “training” thereof.[28] According to the current standard practice, when programming artificial intelligence, it is provided with a particularly large amount of information to skim over, as a result of which artificial intelligence develops and acquires new capabilities due to the processing thereof.[29] For example, an artificial intelligence, the function of which is to create paintings, learns by “reading” pictures drawn by humans, as a result of which it can create a similar painting itself.[30] Therefore, the artists whose works are used by artificial intelligence created by various companies believe that their copyrights are being infringed.[31] The situation is essentially identical in all other fields of art, in which artificial intelligence is utilized.[32] This issue appears to be one of the most important parts of the academic and legal discussion about artificial intelligence and its impact, although the regulation does not even touch on it and leaves it beyond regulation.
Another topic that does not appear in the text of the regulation is crimes committed using artificial intelligence. Artificial intelligence is being used more and more frequently in the online spaces for illegal purposes,[33] although the regulation does not propose to regulate this issue either.
Hence, it can be said that, on the one hand, the steps taken by adopting this regulation are important, and that the European Union is the first to create a legislative framework to regulate this extremely important area.[34] At the same time, it should be emphasized that the issue is not exhausted, and the regulation of artificial intelligence should be continued to create a normative system that ensures that the goal defined in the preamble of the adopted regulation is truly and fully achieved.
3. Potential Influence on the Development of Artificial Intelligence
As with almost all new arrangements, the EU’s first submission of a draft regulation on the introduction of harmonized rules on artificial intelligence was met with a negative reaction from members of the relevant industry.[35] Opinions were expressed that by regulating the field, the European Union would only ensure that the development of the said field would be limited within its framework and that the global competitors of the European Union would be given an advantage.[36]
In connection with the above, it is necessary to emphasize that the regulation, in fact, happens to be merely a general framework.[37] The vast majority of the rules therein can be divided into two categories: the outline, within the framework of which a more detailed regulation needs to be created later, and the general rules that people working on artificial intelligence, within the framework of the principle of good faith, should already be following.[38] In fact, there are only two hard, concrete rules that would fundamentally change the situation: creating a regulatory body and prohibiting the development of artificial intelligence that poses an unacceptable risk.[39]
Due to the importance and complexity of artificial intelligence, it is virtually impossible to regulate it without the existence of a specialized body.[40] Admittedly, bad regulation can often be worse than no regulation at all,[41] but as things stand, there is no reason to believe that the yet-to-be-formed EU Artificial Intelligence Office will do its job poorly. At the same time, considering that a number of companies working in the field of artificial intelligence have already had scandals related to security and human rights,[42] it can be said that the existence of the regulation is necessary. As a result, it is not justified to say that the establishment of the Artificial Intelligence Office by the Regulation of the European Union Parliament and the Council will in any way have a negative impact on the given field.
As for artificial intelligence containing an unacceptable risk, as already mentioned above, work on such tools (except for specialized parties working in the field of defense and security) has been prohibited for everyone. Critics of the regulation point out that with this step, the European Union lags behind, for example, the People’s Republic of China, in which human monitoring and social classification is an important direction of the development of artificial intelligence.[43]
The preamble of the regulation explicitly states that artificial intelligence containing unacceptable risk is associated with actions that cannot be entrusted to artificial intelligence.[44] All of the areas identified as containing unacceptable risks in the regulation are related to issues that have a particularly large impact on people’s daily lives.[45] Therefore, interference therein, which is often conducted via artificial intelligence,[46] can in no way be deemed acceptable.[47] Therefore, the decision taken by the European Union to ban the creation of such artificial intelligence cannot be considered an undesirable step.
As a result, it can be stated that the provisions of the regulation will not have any significant negative impact on the development of artificial intelligence. On the other hand, it can also be said that creating a legal framework can have a net positive effect on the mentioned field.
First of all, it is often desirable for businesses to establish rules of conduct and clearly define prohibited actions, as it eliminates ambiguity, which is usually considered to be a hindering factor to business.[48] In addition, provisions related to transparency will increase the number of sources available to start-ups and average businesses, which will also have a positive impact on the level of development of artificial intelligence in the future.[49]
Considering all of the above, it can be said that the criticism of the regulation from the point of view that it will hinder the development of artificial intelligence in the European Union is without foundation. On the contrary, its introduction will reduce ambiguity and provide transparency, which will positively impact the entire field both within and outside the EU.
Conclusion
Adopting the draft “Regulation of the European Parliament and of the Council laying down harmonized rules on artificial intelligence” is an important step forward in regulating the field of artificial intelligence. This is the first normative act of comparable scale to regulate the research, creation, and use of artificial intelligence by the private sector. Adopting it creates a framework within which artificial intelligence and the people working on it can evolve. The regulation does not prevent the persons working in the field from effectively performing their activities; on the contrary, it will positively affect them.
However, the mentioned regulation remains only the first step. Based on this, it is necessary to develop a more detailed set of rules that will regulate all important areas related to the use of artificial intelligence. The special bodies created within the framework of the regulation are obliged to ensure the correct application of the rules in practice. Only in this case it will be possible to develop artificial intelligence in such a way that the main goal specified in the preamble of the regulation - the well-being of humankind - is achieved.
Bibliography
Alon-Barkat, S. Busuioc, M. Human–AI Interactions in Public Sector Decision Making: „Automation Bias” and „Selective Adherence” to Algorithmic Advice. (2023) Journal of Public Administration Research and Theory, 33(1). pp. 153-169.
Baronchelli, A. Shaping new norms for AI. (2024) Philosophical Transactions of the Royal Society, 379. pp. 1-6.
European Union Law Electronic Journal (Eur-Lex). Online Database. Available online at: https://eur-lex.europa.eu/legal-content/EN/HIS/?uri=celex:52021PC0206 [Last Access: 29.05.2024].
Gaffar, H. Albarashdi, S. Copyright Protection for AI-Generated Works: Exploring Originality and Ownership in a Digital Landscape. (2024) Asian Journal of International Law, 24. pp. 1-25.
Gibney, E. What the EU’s tough AI law means for research and ChatGPT. (2024) Nature, 626. pp. 938-939.
Gornet, M. Maxwell, W. The European approach to regulating AI through technical standards. (2024) The HAL Open Science Journal, 24. pp. 1-25.
Hacker, P. A Legal Framework for AI Training Data - from First Principles to the Artificial Intelligence Act. (2021) Law, Innovation and Technology Journal, 13(2). pp. 257-301.
Hakan, C. Criminal Liability of Artificial Intelligence from the Perspective of Criminal Law: An Evaluation in the Context of the General Theory of Crime and Fundamental Principles. (2024) International Journal of Eurasia Social Sciences, 55(15). pp. 276-313.
Laux, J. Wachter, S. Mittelstadt, B. Three Pathways for Standardisation and Ethical Disclosure by Default under the European Union Artificial Intelligence Act. (2024) Computer Law & Security Review, 53. pp. 1-11.
Luk, A. The Relationship Between Law and Technology: Comparing Legal Responses to Creators’ Rights under Copyright Law through Safe Harbor for Online Intermediaries and Generative AI Technology. (2023) Law, Innovation and Technology Journal, 16(1). pp. 148-169.
Mendez-Suarez, M. Virginia, S.M. De Prat, J.M. Do Current Regulations Prevent Unethical AI Practices? (2023) Journal of Competitiveness, 15(3). pp. 207-222.
Mitchell, A.D. Let, D. Tang, L. AI Regulation and the Protection of Source Code. (2023) International Journal of Law and Information Technology, 31(4). pp. 183-301.
Novelli, C. Casolari, F. Rotolo, A. Taddeo, M. Floridi, L. AI Risk Assessment: A Scenario-Based, Proportional Methodology for the AI Act. (2024) The Digital Society Journal, 3(13). pp. 1-29.
Pirozzoli, A. The Human-centric Perspective in the Regulation of Artificial Intelligence. (2024) Insight European Papers, 9(1). pp. 105-116.
Sganga, C. Is There Still a Policy Agenda for EU Copyright Law? (2023) International Review of Intellectual Property and Competition Law, 54. pp. 1407-1417.
Tataru, S.R. Cretu, A.C. Decoding the EU Artificial Intelligence Act: An Analysis of Key Concepts and Provisions. (2024) Journal of Public Administration Finance and Law, 31. pp. 463-474.
Voss, W.G. AI Act: The European Union’s Proposed Framework Regulation for Artificial Intelligence Governance. (2021) Journal of Internet Law, 25(4). pp. 8-17.
Footnotes
[1] Gornet, M. Maxwell, W. The European approach to regulating AI through technical standards. (2024) The HAL Open Science Journal, 24. pp. 1-25.
[2] European Union Law Electronic Journal (Eur-Lex). Online Database. Available online at: https://eur-lex.europa.eu/legal-content/EN/HIS/?uri=celex:52021PC0206 [Last Access: 29.05.2024].
[3] Voss, W.G. AI Act: The European Union’s Proposed Framework Regulation for Artificial Intelligence Governance. (2021) Journal of Internet Law, 25(4). pp. 8-17.
[4] Alon-Barkat, S. Busuioc, M. Human–AI Interactions in Public Sector Decision Making: “Automation Bias” and “Selective Adherence” to Algorithmic Advice. (2023) Journal of Public Administration Research and Theory, 33(1). pp. 153-169.
[5] Hacker, P. A Legal Framework for AI Training Data - from First Principles to the Artificial Intelligence Act. (2021) Law, Innovation and Technology Journal, 13(2). pp. 257-301.
[6] Tataru, S.R. Cretu, A.C. Decoding the EU Artificial Intelligence Act: An Analysis of Key Concepts and Provisions. (2024) Journal of Public Administration Finance and Law, 31. pp. 463-474.
[7] Voss, W.G. AI Act: The European Union’s Proposed Framework Regulation for Artificial Intelligence Governance. (2021) Journal of Internet Law, 25(4). pp. 8-17.
[8] Laux, J. Wachter, S. Mittelstadt, B. Three Pathways for Standardisation and Ethical Disclosure by Default under the European Union Artificial Intelligence Act. (2024) Computer Law & Security Review, 53. pp. 1-11.
[9] European Union Law Electronic Journal (Eur-Lex). Online Database. Available online at: https://eur-lex.europa.eu/legal-content/EN/HIS/?uri=celex:52021PC0206 [Last Access: 29.05.2024].
[10] Hacker, P. A Legal Framework for AI Training Data - from First Principles to the Artificial Intelligence Act. (2021) Law, Innovation and Technology Journal, 13(2). pp. 257-301.
[11] Laux, J. Wachter, S. Mittelstadt, B. Three Pathways for Standardisation and Ethical Disclosure by Default under the European Union Artificial Intelligence Act. (2024) Computer Law & Security Review, 53. pp. 1-11.
[12] European Union Law Electronic Journal (Eur-Lex). Online Database. Available online at: https://eur-lex.europa.eu/legal-content/EN/HIS/?uri=celex:52021PC0206 [Last Access: 29.05.2024]. Article 2.1.
[13] European Union Law Electronic Journal (Eur-Lex). Online Database. Available online at: https://eur-lex.europa.eu/legal-content/EN/HIS/?uri=celex:52021PC0206 [Last Access: 29.05.2024]. Article 2.2, Preamble Article 16.
[14] European Union Law Electronic Journal (Eur-Lex). Online Database. Available online at: https://eur-lex.europa.eu/legal-content/EN/HIS/?uri=celex:52021PC0206 [Last Access: 29.05.2024]. Preamble Article 14.
[15] European Union Law Electronic Journal (Eur-Lex). Online Database. Available online at: https://eur-lex.europa.eu/legal-content/EN/HIS/?uri=celex:52021PC0206 [Last Access: 29.05.2024]. Chapter II.
[16] European Union Law Electronic Journal (Eur-Lex). Online Database. Available online at: https://eur-lex.europa.eu/legal-content/EN/HIS/?uri=celex:52021PC0206 [Last Access: 29.05.2024]. Chapter III.
[17] Pirozzoli, A. The Human-centric Perspective in the Regulation of Artificial Intelligence. (2024) Insight European Papers, 9(1). pp. 105-116.
[18
ANALYZING THE IMPACT OF EMERGING TECHNOLOGIES ON INTELLECTUAL PROPERTY RIGHTS (IPR): A COMPREHENSIVE STUDY ON THE CHALLENGES AND OPPORTUNITIES IN THE DIGITAL AGE
Full text linkThe rapid integration of emerging technologies into various facets of society has brought about a paradigm shift in the realm of Intellectual Property Rights (IPR). This comprehensive study seeks to unravel the intricate dynamics surrounding the intersection of emerging technologies—such as artificial intelligence, blockchain, and biotechnology—with IPR in the digital age. The overarching objective is to scrutinize the challenges and opportunities that emerge from this synergy, thereby contributing to a nuanced understanding of the evolving landscape of intellectual property. An extensive literature review explores the historical evolution of IPR, providing a foundation for comprehending the traditional principles underpinning this legal domain. Building upon this historical context, the study delves into the impact of contemporary technologies on patent law, copyright, and trademark regulations. Notable advancements in artificial intelligence present challenges related to patentable subject matter and algorithmic inventions, prompting a critical analysis of their implications. Similarly, biotechnological innovations introduce ethical considerations, necessitating an examination of their effect on the patentability of novel inventions. The research concludes by offering recommendations for legal adaptations, ensuring that intellectual property laws remain robust and adaptable in the face of the challenges and opportunities ushered in by the digital age.
Keywords: IPR and digital age, Technology, Virtual impact, Technological advancement
Introduction
The introduction contextualizes the research by highlighting the accelerated pace of technological advancements and their profound implications for IPR. It underscores the necessity of a comprehensive examination to navigate the intricate dynamics of technology’s influence on intellectual property.
Background
The advent of the digital age has ushered in an era of unprecedented technological innovation, bringing forth advancements in artificial intelligence, blockchain, and biotechnology that are reshaping the global economic and social landscape. As these emerging technologies continue to permeate various industries, their profound impact on Intellectual Property Rights (IPR) has become increasingly evident. Intellectual property, encompassing patents, copyrights, and trademarks, serves as the cornerstone for fostering innovation, creativity, and economic growth. However, the accelerated pace of technological change presents both challenges and opportunities for the traditional frameworks governing IPR.
Acceleration of Technological Advancements:[1]
The past few decades have witnessed exponential growth in technological capabilities, with breakthroughs in AI, blockchain, and biotechnology becoming integral parts of daily life. AI, powered by machine learning algorithms, has demonstrated the ability to create, innovate, and automate tasks traditionally associated with human intelligence. Blockchain technology has disrupted conventional notions of trust and transparency by providing decentralized and secure systems for data management and transactions. Simultaneously, biotechnology has pushed the boundaries of innovation in healthcare, agriculture, and environmental sustainability.
Dynamic Nature of Intellectual Property Rights:[2]
The traditional mechanisms governing intellectual property face unprecedented challenges in this dynamic technological landscape. Patents designed to protect novel inventions find themselves navigating the intricate terrain of algorithmic innovations. Copyright, intended to protect creative works, grapples with the emergence of AI-generated content. Trademarks, as symbols of brand identity, confront new challenges in virtual spaces and the metaverse. The interplay between these emerging technologies and established IPR frameworks necessitates a nuanced understanding to address the evolving complexities effectively.
Global Interconnectedness and Policy Implications:[3]
The digital age has ushered in a new era of global interconnectedness, where ideas, information, and innovations flow seamlessly across borders. This interconnectedness amplifies the importance of a harmonized and adaptable intellectual property regime that can effectively balance the interests of creators, innovators, consumers, and the broader public. As countries and regions grapple with the regulatory implications of emerging technologies, there is a pressing need for comprehensive research to inform policymakers, legal practitioners, and stakeholders about the challenges and opportunities that lie ahead.
Against this backdrop, this comprehensive study aims to delve into the intricate dynamics of how emerging technologies influence Intellectual Property Rights. By exploring the challenges and opportunities presented, this research endeavours to contribute valuable insights to the ongoing discourse surrounding the adaptation of IPR frameworks to the demands of the digital age. In doing so, it seeks to pave the way for informed policy decisions, legal adaptations, and industry strategies that foster innovation, protect creative endeavours, and ensure the continued evolution of intellectual property in a technologically dynamic world.
Objectives
This section outlines the study’s specific objectives, including exploring challenges posed by emerging technologies, identifying opportunities for enhanced protection, and assessing the adaptability of existing IPR regulations.1. Literature review
1.1 Historical Evolution of IPR
The historical evolution of Intellectual Property Rights (IPR) is a fascinating journey reflecting societal, economic, and technological changes over time. The concept of protecting intellectual creations and innovations has ancient roots, but formalized legal frameworks emerged much later. Here’s a brief overview of the historical evolution of IPR:
Ancient Roots
Roman Law and Manuscript Copying 1996: In ancient Rome, there were early instances of legal protection for certain creations. For example, the Lex Rhodia of the 2nd century BCE granted protection to sea captains for their innovations. Manuscript copying in monasteries during the Middle Ages also saw early forms of copyright-like protection.
Venetian Statute 1474: The Venetian Statute is considered one of the earliest forms of patent law. It granted inventors a limited monopoly over their inventions, marking a significant step towards formalizing intellectual property protection.
17th to 19th Centuries:
Statute of Anne 1710:The Statute of Anne in England is often regarded as the first modern copyright law. It granted authors the exclusive right to print and publish their works for a limited period, providing a legal framework for protecting literary works.
Statute of Monopolies 1624: In response to abuses of patent monopolies, the Statute of Monopolies in England limited the types of inventions that could be granted patents, emphasizing public interest.
Paris Convention 1883: The Paris Convention for the Protection of Industrial Property was a landmark international treaty that established a framework for mutual recognition of patents and trademarks among member countries.
20th Century:
Berne Convention 1886: The Berne Convention for the Protection of Literary and Artistic Works was another key international treaty, setting standards for copyright protection and promoting the idea of national treatment for foreign creators.
TRIPS Agreement 1994: The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is part of the World Trade Organization (WTO) agreements. It sets out minimum standards for various forms of intellectual property protection, emphasizing its global nature.
21st Century:
Digital Millennium Copyright Act (DMCA): The DMCA in the United States addressed issues related to digital media and the internet, criminalizing the circumvention of digital rights management (DRM) technologies, and providing safe harbours for online service providers.
Emergence of Intellectual Property Offices: Many countries established specialized offices to administer and enforce intellectual property rights. These offices are crucial in granting patents, trademarks, and copyrights.
Challenges of the Digital Age: The rapid development of digital technologies in the 21st century brought about new challenges for IPR, such as issues related to online piracy, file-sharing, and the protection of software and algorithms.
The historical evolution of IPR reflects society’s recognition of the value of intellectual creations and innovations, leading to the establishment of legal frameworks to incentivize and protect these endeavours. The ongoing challenge is to adapt these frameworks to the ever-changing technological and societal landscape while striking a balance between the rights of creators and the public interest.
1.2 Emerging Technologies and IPR[4]
The intersection of emerging technologies with Intellectual Property Rights (IPR) is a dynamic and evolving field that necessitates a comprehensive review of scholarly literature. This segment aims to delve into the multifaceted impact of artificial intelligence (AI), blockchain, and biotechnology on patent law, copyright, and trademark regulations. By exploring academic discussions and real-world case studies, this literature review seeks to elucidate the intricate relationship between these technologies and the intellectual property landscape.
Artificial Intelligence and Patent Law:[5]
AI-Generated Inventions: Scholars have explored the challenges and opportunities arising from inventions generated by AI algorithms. The debate centres on whether AI systems can be recognized as inventors, raising questions about inventorship, patentability criteria, and the role of human creativity in innovation.
Algorithmic Patenting: The literature discusses the implications of algorithmic innovations, examining how patent offices and legal systems adapt to the unique nature of AI-generated inventions. Key considerations include clarity in patent claims, non-obviousness standards, and the role of disclosure in the patenting process.
Ethical and Legal Concerns: Researchers analyze the ethical implications of AI in patent law, exploring issues such as bias in algorithms, transparency in decision-making, and the socio-legal challenges posed by AI-driven innovation. This section aims to provide a nuanced understanding of the ethical considerations associated with AI and patents.
Blockchain and Intellectual Property:[6]
Smart Contracts and Copyright: The literature review explores how blockchain, with its decentralized and transparent ledger system, impacts copyright enforcement by implementing smart contracts. It examines challenges related to digital content ownership, licensing, and the potential for decentralized content distribution platforms.
Supply Chain Authentication and Trademarks: Scholars delve into the use of blockchain for supply chain authentication and its implications for trademark protection. Case studies are examined to illustrate how blockchain’s tamper-resistant nature can enhance the authenticity of products, addressing issues related to counterfeiting and brand protection.
Tokenization of Intellectual Property: Researchers discuss the emergence of tokenization as a means to represent intellectual property ownership on blockchain platforms. The literature examines the potential for tokenized assets, including patents and copyrights, to revolutionize how intellectual property is traded and monetized.
Biotechnology and IPR:[7]
Gene Patents and Ethical Considerations: The literature review explores the historical context and ongoing debates surrounding gene patents. Researchers analyze the ethical considerations associated with patenting genetic material, addressing concerns related to access to healthcare, research, and the potential commodification of life.
Biopharmaceutical Innovations and Patent Landscape: Scholars investigate the impact of biotechnological advancements on the patent landscape, particularly in the biopharmaceutical industry. The review examines patent strategies, challenges related to patentability criteria, and the role of patents in incentivizing innovation in biotechnology.
Open-Source Biotechnology: The literature explores the concept of open-source biotechnology and its implications for intellectual property. Case studies are examined to highlight instances where open-source models have facilitated collaboration, innovation, and knowledge sharing in the biotech sector.
Cross-Cutting Themes[8]:
Global Harmonization of IPR: The review addresses the need for global harmonization of intellectual property laws to accommodate the cross-border nature of emerging technologies. Scholars discuss the challenges and opportunities associated with creating a cohesive international framework that adapts to the pace of technological change.
Challenges of Enforcement: Examining the challenges in enforcing intellectual property rights in the digital age, this section delves into the complexities posed by emerging technologies. The literature discusses issues related to jurisdiction, digital piracy, and the role of technological measures in enforcing IPR.
Balancing Innovation and Access: Scholars explore the delicate balance between fostering innovation and ensuring access to technology and knowledge. The review examines how emerging technologies impact this balance and discusses potential policy frameworks that address innovation incentives and public access.
2. Methodology
Research design
This section outlines the research design, incorporating qualitative and quantitative methodologies, case studies, and legal analyses to comprehensively investigate the impact of emerging technologies on IPR.
3. Impact on patent law
3.1 AI and patentable subject matter[9]
Artificial Intelligence (AI) has become a transformative force in innovation, challenging established norms and paradigms, particularly within the framework of patentable subject matter. Integrating AI into inventive processes has led to re-evaluating traditional notions of inventiveness, patentability criteria, and even the very concept of inventorship. This essay delves into the multifaceted landscape of AI and patentable subject matter, exploring the challenges and opportunities that arise as we navigate this evolving intersection of technology and intellectual property.
The historical trajectory of patent law reveals a continual adaptation to technological advancements. From the early days of granting exclusive rights to inventors, patent systems have evolved to accommodate the complexities of various scientific and technological revolutions. However, the advent of AI presents a distinctive set of challenges that necessitate a fresh examination of patentable subject matter.
AI’s capacity for generating novel inventions introduces novel considerations for traditional patentability criteria. The principles of novelty, non-obviousness, and clarity in patent claims, which form the bedrock of patent law, face new challenges in the context of AI-generated innovations. AI\u27s sheer computational power allows it to sift through vast datasets, potentially calling into question the originality and inventiveness of AI-driven solutions. As patent offices grapple with determining the boundaries of novelty and non-obviousness in this digital era, the landscape of patentable subject matter becomes increasingly intricate.
Moreover, the issue of inventorship takes centre stage when AI is involved in the inventive process. Historically, the legal concept of an inventor has been a human entity capable of conceiving and reducing an invention to practice. However, the rise of AI-generated inventions raises fundamental questions about the attribution of creativity. Can an algorithm, devoid of consciousness and intentionality, be considered an inventor? Legal scholars and practitioners are engaged in a dialogue that transcends traditional boundaries, exploring the ethical and legal dimensions of recognizing AI as inventors.
The ethical considerations surrounding AI inventorship extend beyond legal frameworks. Discussions delve into accountability, responsibility, and the broader societal implications of machine-generated innovations. As AI increasingly contributes to inventive processes, stakeholders must grapple with questions of transparency, fairness, and the potential concentration of innovation in the hands of a select few entities possessing advanced AI capabilities.
Patent offices worldwide are responding to the challenges posed by AI-generated inventions, developing policies and guidelines to navigate this uncharted territory. These responses reflect the ongoing efforts to strike a delicate balance between fostering innovation and ensuring that patent systems remain equitable and accessible. However, the evolving nature of AI technology calls for adaptive frameworks that can keep pace with rapid advancements.
The practical applications of AI in various industries offer real-world case studies illuminating the impact on patentable subject matter. AI is revolutionizing drug discovery in the pharmaceutical sector, challenging traditional patent frameworks with innovations driven by machine learning algorithms. Similarly, the integration of AI into vehicle design and autonomous technologies in the automotive industry raises novel patentability questions.
Looking forward, anticipating future challenges is essential. The continuous evolution of AI capabilities, the potential for collaborative AI inventions, and the integration of AI into inventive processes are areas that demand attention. As we navigate this future landscape, legal adaptations become imperative to ensure that patent law remains not only relevant but also equitable and inclusive.
3.2 Biotechnology and patentability[10]
Biotechnology has emerged as a groundbreaking field with far-reaching implications for various industries, from medicine and agriculture to environmental science. As scientists delve into manipulating living organisms at the molecular and cellular levels, patentability becomes a pivotal consideration. Initially designed to incentivize innovation by granting exclusive rights to inventors, the patent system faces unique challenges and complexities when applied to the dynamic and rapidly evolving landscape of biotechnology.
At its core, biotechnology involves the manipulation of biological systems and processes to develop novel products, treatments, and technologies. This can encompass a broad spectrum of activities, from genetic engineering and gene editing to the creation of new drugs, vaccines, and agricultural products. As biotechnological innovations continue to push the boundaries of what is possible, the patentability of these advancements has become a focal point of legal, ethical, and scientific discourse.
The patenting of biotechnological inventions rests on the fundamental principles of novelty, non-obviousness, and utility. Innovations in biotechnology must demonstrate a significant departure from existing knowledge, possess inventive ingenuity, and offer practical utility to be considered for patent protection. However, the distinctive nature of biotechnological advancements introduces challenges that differ from those encountered in other fields of innovation.
One of the primary challenges in patenting biotechnological inventions arises from the intricate interplay between nature and human intervention. Unlike mechanical or electrical engineering inventions, biotechnological innovations often involve the manipulation or modification of living organisms, which are products of nature. Determining the boundary between what is naturally occurring and what results from human ingenuity poses a unique challenge for patent examiners and legal scholars.
Gene patents exemplify the nuanced nature of biotechnological patentability. The identification and isolation of specific genes, often associated with genetic disorders or valuable traits in agriculture, have been the subject of numerous patent applications. The ethical considerations surrounding the patenting of genes, especially when they have implications for human health, have sparked debates about the commodification of life and the accessibility of genetic information.
Furthermore, the pace of biotechnological innovation introduces another layer of complexity. The rapid progression of technologies like CRISPR-Cas9, a revolutionary gene-editing tool, challenges traditional patent examination processes. The ability to swiftly and precisely edit the DNA of living organisms raises questions about the scope and durability of patent protection, especially when the technology evolves before existing patents expire.
Patentability in biotechnology is not solely confined to human health or agriculture; it extends to diverse applications such as environmental remediation, bioenergy, and industrial processes. The patent system must grapple with assessing the novelty and inventiveness of inventions across this expansive spectrum, where the boundaries of what is considered patentable are continually evolving.
Despite these challenges, the patent system remains a crucial driver of innovation in biotechnology. The promise of exclusive rights incentivizes research and development, attracting investment and fostering a competitive landscape. However, balancing the interests of inventors, the public, and the broader scientific community becomes an intricate task in a field where advancements can have profound implications for human well-being and the environment.
4. Impact on copyright
4.1 AI-generated content[11]
The advent of Artificial Intelligence (AI) has brought
ანდერძის თავისუფლების შეზღუდვა კომლში - საქართველოს მოქალაქეთა კერძო საკუთრების პრობლემა
No full textNowadays, the limitation of the freedom of will when obtaining ownership rights to household property has acquired tremendous legal importance because the registration of household property is manifested in frequent inheritance disputes, and citizens have been deprived of the opportunity to make a will for years. Consequently, the rule of legal inheritance remained the only means of obtaining ownership of the household property. Increased rates of estate disputes caused by many reasons are more problematic. Some citizens can still not register their property, and these plots are subject to dispute. It is worth noting how the freedom of will was limited in the household and how quickly agricultural plots turned into inheritance disputes. Restricting the freedom of will and other restrictions creates an irreversible situation of unequal distribution of land among citizens, and years later, we will face the reality when the right to own land will lose its self-generating function. The research is directed to evaluating the problem caused by the limitation of the freedom of will when obtaining the ownership right to the household’s property. Also, the research discusses the decisions of the Constitutional Court of Lithuania regarding land ownership.
Keywords: Freedom of will, Household, heir, Household member and non-member heirs, Estate, actual possession, Litigation, Notary
Introduction
Many features distinguish the property of the household. In practice, there are cases when citizens’ demands for household property are based on exclusive interests. Therefore, obtaining the right to own it is problematic because the property relationship between the household and citizens with the right has lost the function of transfer of rights and duties through self-regulation. The response to the problem cannot be carried out if it does not have social compatibility with the circumstances because the change in family ties of citizens in relation to the household is accompanied by a dispute between the heirs, which implies the disruption of the family system by presenting individual interests. Analyzing the decisions of the Supreme Court of Georgia to study the issue of obtaining the right of ownership to the property of a household is an opportunity to form important conclusions. The main task of the research is to highlight the problem of limiting the freedom of will in the household.
1. The Testator and the Heir in the Household
Despite the legal regulation of the status of legal and testamentary heirs in modern private law, it is still problematic to take into account the number of rows of heirs, the distribution of inheritance property, and the interests of the heir and the heirs.[1] If we rely on the mentioned position, it will be reasonable to discuss the status of the heir of the family, which is not perfectly regulated and creates difficulty with the main record of the heir, which is because it is not possible to establish any priority between the claims of the heirs on the property of the family, which will be derived from the law and justified.[2] “Soviet law was familiar with the registration of rights to real estate”. According to the Soviet Civil Code, the acquisition of ownership of a residential house was connected with registration”.[3] Old real estate registrations are of evidentiary value. However, there is a risk that the document’s content may contain conflicting information.
The types of household heirs are not defined by the legislation, which creates a problem in determining the status of the household heir. According to the Civil Code, in the case of inheritance by will, the heirs can be persons who were alive at the moment of the death of the decedent, as well as those who entered into his life and were born after his death, regardless of whether they are his children or not, as well as legal entities. The position is shared that it is not appropriate to separate the heir of the household in the concept of heir, although the distinction may be relevant for registration purposes. In general, “the one to whom the property rights and obligations of the heir are transferred through succession is considered an heir”.[4] To overcome the problem related to the form and content of the household, it is important to develop legal regulations so that citizens have a prior idea of their hereditary status and interest in the household, on which to base their demands, which may be diverse depending on what the heir wants and what his relationship with the household is.[5]
Inheritance rights allow the heir to benefit from the wealth of the estate and exercise the right to receive the inheritance. Therefore, the heir’s will should not be excluded when determining the means of transferring the property legally and in the form of a will. The inclusion of a member in the family by the heir is already a basis for the heir, although the cancellation of this possibility is a subject of dispute. Further, the freedom of will is limited between the order of the members of the family and the will of the last member. If there are questions regarding the status of the family’s heirs for the possession, use and disposal of the estate, this issue should be assessed within the scope of the heir’s true, legal and fair claim and not with the multitude of unreasonable claims.[6]
It is possible to establish the regulations for the heir of the family:
The last member of the household - the heir of the last surviving member mentioned in the household record;
Family member legal heir - family members may be mutual heirs and their status is determined by following the order of legal inheritance, however, with legal equality due to family membership;
A member of a household, a testamentary heir, who was named as an heir by the will and, if such an opportunity exists, was recorded as a member of the household;
Legal heir who is not a member of the household - the status of the heir is determined by observing the order of mutual inheritance and legal inheritance;
A testamentary heir who is not a member of the household, to whom the property of the household or its part was given by the last or other member of the household in the early years;
A family member or non-member, a person without hereditary status, who makes a claim or restricts the claim of other persons to this property.
The issues are complex to separate from each other and intersect, which is why it is possible that the boundary between one or two concepts may not be protected. The law does not have a locking mechanism that would give a status to a person in contact with a household and would not define the grounds for presenting a request during the registration of the right. The request is directed to the household’s property and obtaining the right of ownership through inheritance or recognition as the owner. In the main case, the rule of legal inheritance was established as an inviolable possibility of obtaining ownership of the family’s property, and the freedom of will in the family was limited.[7]
2. Household Estate
Household property is private property, the possession, use and disposal of which cannot be properly ensured by the citizen in the part of the right registration.[8] The word "household" confuses. Therefore, a household should be interpreted as a family, which, according to the household record, is credited with property, to which various circumstances prove the citizen\u27s ownership connection. However, the multitude of persons with the right to claim and the competition of interests make registering a specific person as the owner impossible.
Other ways of defining a household connect the content of the concept to the idea of state property, where the citizen’s right to private property is defined differently. Regardless of the household’s load, it is important to determine the main composition: agricultural land plots, buildings on it, agricultural beds, and other types of property goods that are included in the name of the household. According to Article 1513 of the Civil Code of Georgia, the plots of land for legal use of natural persons, on which individual houses are located, are considered the property of these persons after the implementation of the Civil Code, and the rules provided for immovable property in the Civil Code apply to them. Ownership of homestead plots can be equated with ownership of household property. In general, the integrity of the household property depends on the location, which leads to the special interest of citizens when the increase in the value of land in a specific area reaches a large scale, and citizens try to destroy the integrity of the household property, divide and alienate plots.
According to Article 147 of the Civil Code, property is all things and intangible assets that can be owned, used and disposed of by natural and legal persons and acquired without restriction if prohibited by law or does not contradict moral norms. Household property consists of immovable and movable property. In different municipalities of Georgia, the property of a household is different, taking into account the land fund, the ratio established before and after the period of independence.[9] There is no model to help courts classify complex cases.[10] It is a fact that the value of residential land is increasing, it is a valuable asset.[11] The disorganization of the household’s property creates a problem for the heir to bequeath the property to another person and for the heir to inherit the household’s estate by will. The vulnerability of the heir with a will is because, regardless of the will, the separation of the property from the total mass is connected with disputes with other household members and disruption of the integrity of the household.
3. Restriction of Freedom of Will (Comparative Analysis of Judicial Practice of Georgia and Lithuania)
Regarding the restriction of the freedom of will in the family, the court determines the status of the person and the connection with the family’s estate. From the factual circumstances of one of the cases of the Supreme Court of Georgia, it is established that the citizens were in a registered marriage and did not have a child while living together. One of the spouses bequeathed all his property to his grandson from his first marriage. After his death, half of the disputed house was registered in the grandson’s name, which became known to the surviving wife. She filed a lawsuit to declare the will invalid because her family belonged to the household, and the estate could only be opened after the death of the last household member. Decisions made in the case were often cancelled by courts of different instances. According to the explanation of the court, only the homestead plot was owned by the spouses, and the spouses do not own the plot of land, the existence of which is necessary for homestead farming.[12] According to Article 1323, which has already been abolished today, the inheritance will be opened on the common property of the household from the day of the death of the last member of the household. This principle has been changed, and the death of the last family member is not necessary to open the family estate. Regarding the status of land, the Constitutional Court of Lithuania explains that the property which was illegally confiscated from citizens by the Soviet authorities or was transferred with the right to use it immediately after the independence of Lithuania was considered the property of the state until the right of the private owner on this property was restored, based on the presentation of the appropriate request, due to which the land The status was not divided based on the request of natural persons.[13]
In another case, the court shared the cassator’s opinion that in the legal assessment of the factual circumstances established by the previous instance, the appellate court incorrectly applied Article 1356 of the Civil Code, according to which, if the entire estate was distributed among the heirs by will, but one of the heirs was alive at the time of the opening of the estate It was no longer, inheritance does not arise by law, and other heirs will receive his share of the property in a will. The norm indicated by the court’s reasoning refers to a situation where the entire estate was distributed to the heirs by will, and one of the heirs died before the estate was opened. The court considers that the dispute between the parties should be settled based on Articles 1307 and 1371 of the Civil Code.
The Supreme Court disagreed with the reasoning of the Court of Appeals when “the Appeals Chamber pointed out that since the communal household has been abolished since 1993, the determinant for obtaining ownership rights to the household’s property is the registration in the household by 1993“. From this period, as mentioned, the property is transformed into the joint property of the family members. Subsequently, the persons registered in the household can no longer claim the household’s property“. It should be noted that the year 1993 cannot be decisive because after the transformation of the property into co-ownership of the members of the household, the means of obtaining the ownership right is the indication of the co-owners in the household record, and after 1993, it was still possible to fill the household and change the property listed on it.[14] The Constitutional Court of Lithuania notes in one of its decisions that land reform and the concept of property restoration were implemented with varying frequency in the country’s municipalities, although the strategy was common across the country.[15]
The court pointed out that, taking into account the fact that the fact of the plaintiff’s inheritance of the disputed plot of land, or the acquisition of ownership rights to the disputed real estate during the land reform period, could not be established, the claim of the plaintiff was considered unsubstantiated and groundless - to recognize him as the owner of the disputed property, on the basis that The disputed real estate was an object included in the estate of the plaintiff’s heir. This means that a person’s contact with the household’s property must be substantiated by inheritance or the fact of acquiring property during the land reform period, if the person does not have these grounds, he cannot satisfy the request for property outside the household only by indicating that this property was part of the household.[16]
The Court noted that by dividing the household, the plaintiffs lost the ownership right to the common property of the household. Thus, they were entitled to a 1/2 share of the disputed property. Divining the household was connected with the equal distribution of the share in the legal burden. Even though the claimants claimed the property in dispute entirely and independently.[17]
The Court explains that “due to the absolute nature of ownership, the owner’s right to request an injunction cannot be statute-barred. Both acquisition and loss of ownership rights to immovable objects are related to registration in the public register. Because of the above, the basis for considering the owner’s status as violated must be a public registry entry; another person must be registered as the owner. Otherwise, the property right will not be considered violated, and the statute of limitations will not be allowed for the property as an absolute right”.[18] In the case of household property, the registration of a person as the owner was not done for years, which is why the actual ownership is one of the important elements for establishing a claim. However, the household record changes the reality, where different persons are registered jointly, or the record is substantially flawed. In one of the cases of the Constitutional Court of Lithuania, it is noted that together with the concept of property restoration, a management strategy was developed for the plots of land of agro-cultural importance to preserve both the registration and agricultural purpose.[19]
In another case, "the Court explains that the evidence in the case undoubtedly established that after the death of the head of the household and his wife, the household that owned the disputed property was represented/led by the defendant (mother), and her children (co-defendants) were enrolled in the same household, respectively, In the context of land reform, the defendants’ acquisition of title to the disputed property (taking into account the basis for obtaining such a right), constitutes the acquisition of a real right to the disputed property, which, in turn, gives the owner the right to freely own, enjoy and dispose of the property in his possession”.[20] Actual possession in the absence of registration is of particular importance. Actual possession must be proved by appropriate evidence.
“The legal interest of the plaintiffs was to obtain the right of ownership of the property, which went out of the domain of their heir’s disposal against the law, more precisely, based on a false entry in the land register, and first, it ended up in the domain of the first defendant’s disposal, based on the gift agreement of the father of the heir and later, based on the gift agreement. The defendants objected to the lawsuit by focusing on the incorrect determination of the inheritance mass of the plaintiffs’ heirs and the scope of the circle of heirs.[21] Such cases are illegal in the origin of ownership rights to the household; however, until this is established, the property can be alienated to third parties. The problem is that when the heir of the household loses the right to the property or thinks that he has lost the right to the property, the risk of the property being found in the possession of a third party increases, the heir has a prior expectation, and after the death of the heir, the heirs start a dispute.
The Court noted that “it is true that the claim does not contain a direct reference to the legal interest; however, taking into account the factual circumstances of the dispute, it is indisputable that the claimant wants to obtain (restore) the ownership right to the property, which he no longer has based on the disputed transactions”. Achieving this goal is impossible only in the conditions of a confessional lawsuit; the means of realization of this demand is the claim of appropriation, and the Court, based on the imperative limitation of Article 248 of the Code of Civil Procedure, cannot go beyond the claim and attribute to the party what it did not ask for, or more than he demanded. Thus, the Chamber concludes that the recognition claim is inadmissible in the case under consideration”.[22] The court, within its jurisdiction, distinguished between admissible and non-adjudicable issues.
“The Court shares the legal reasoning of the appealed decision and considers that taking into account the time of origin of the legal relationship, the lower Court correctly interpreted Articles 539, 544, 556, 540, 541 and 556 of the Code of Civil Law (1964 edition) Articles. The Court additionally noted the following: the legal interest of the claimant’s claim is the acquisition of ownership rights to the heir’s property, which the party associates with the fact that he took possession of the property after the heir’s death. The defendant, who is the registered owner of the property, disagrees with this fact (his deceased father obtained the inheritance by notarial procedure). In such a situation, in accordance with Article 102 of the Code of Civil Procedure, the plaintiff is obliged to indicate such circumstances and submit evidence, the analysis of which will confirm the fact of possessing the property”.[23] Property registration and actual possession conflict with each other; at this time, the Court focuses mainly on the presentation of evidence and reference to the relevant circumstances.
For the issue of establishing the norms necessary for establishing the right, the Chamber referred to Articles 92, 93, 103 of the Civil Code of Georgia (1964 edition) and explained that in the 1960s, the disputed plot of land was only the property of the state, which excluded the appellant the rights of the ancestor as the owner of the land plot. Pursuant to Article 1513 of the current Civil Code, the Chamber explained that the enacted law considered as the property of individuals only those plots that they had in legal use and on which individual houses owned by individuals were directly located. The purpose of this norm was to ensure the property of individuals both on the building and on the land, of which the individual house was an essential component. According to this article, for a person to be recognized as the owner of a plot of land, it is necessary for him to be the owner of an individual house and to have allocated a plot of land based on the relevant act. According to the plaintiff, after the 1960s, his family no longer owns the disputed plot of land. The transfer of ownership of a plot of land occupied in this manner was regulated by the law of Georgia “On recognition of ownership rights to land plots in the possession (use) of natural and private legal entities”, according to which one of the necessary conditions for obtaining ownership rights to a plot of land was ownership of a plot of land (legally or arbitrarily) through detention)”.[24]
The Chamber of Administrative Affairs states in one of the cases that “from the regulation of the Civil Law Code (the land was owned only by the state). According to the data of the land register, the possibility of obtaining ownership rights to a plot of land for personal use was initially taken into account by the land reform that began in January 1992 (“On the reform of agricultural land i
ANALYSIS OF THE CONCLUSION OF THE PLENUM OF THE CONSTITUTIONAL COURT IN RELATION TO THE VIOLATION OF THE CONSTITUTION BY THE PRESIDENT OF GEORGIA AND INTERNATIONAL PRACTICE
Full text linkFrom 2013 until the present, the dispute on the separation of competencies between the leaders of the state government has been ongoing in political life, as well as on an international scale in the field of foreign relations. The field of foreign relations is of national importance and is directly related to the state’s image and foreign policy. The conclusion of the international treaties, as well as the appointment of the ambassadors and representation of the state, has become the subject of dispute at various times. State representation by the President in foreign relations has led to a Constitutional Reference submitted by the Parliament of Georgia to the Constitutional Court of Georgia, alleging a violation of the Constitution by the President for the first time in the country’s history. As a result, according to the conclusion of the Constitutional Court of Georgia dated October 16, 2023, President Ms. Zurabishvili violated the Constitution of Georgia by exercising representation powers without the consent of the Government.
Based on the above, this thesis will analyze the meaning of the representation power in foreign relations, the President’s constitutional status, and the President’s role in foreign relations, acting as the socalled “neutral arbitrator”. This thesis will include a discussion on the roles of the Parliament and the Constitutional Court of Georgia in the political-legal process of Presidential impeachment proceedings. It will also examine the conclusions and decisions of Constitutional Courts in various states regarding alleged constitutional violations by Presidents and disputes over competence.
Keywords: Field of foreign relations, the President, the Parliament, violation of the Constitution, Impeachment
Introduction
Pursuant to the Conclusion of the Constitutional Court of Georgia dated October 16, 2023, President Zurabishvili violated the Constitution of Georgia.[1] The Court found that on August 31, September 1, and September 6, 2023, during her international working visits abroad, the President of Georgia exercised her representation power in the field of foreign relations without obtaining the consent of the Government of Georgia. This action represented a violation of Article 52(1)(a) of the Constitution of Georgia, thereby resulting in a violation of Article 48 of the Constitution of Georgia.[2]
The role of the President of Georgia in the system of separation of powers shall be discussed based on the systemic analysis of the President’s powers. The role of the head of state, embodied by the President, is characteristic of all models of republican governance. The powers of the head of state vary among presidential, parliamentary, and semi-presidential governance models. However, the essence of these different governance models and the separation of powers does not imply leaving any institutions without functions. As a constitutional institution, the President holds the status of head of state. Therefore, representing the President solely as the “State Notary”[3] does not correspond to the essence of the parliamentary governance model.
In relation to the alleged breach of the Constitution by the President of Albania, the Venice Commission argued that in parliamentary regimes, public authority is granted the highest status not because it represents the strongest “authority” but because the objectives it must achieve are considered of greater importance compared to party politics.[4] On the other hand, to achieve these specific objectives, Constitutions grant the President specific powers, whether formal or essential. When executing these powers, the President should not only act impartially but also be perceived as doing so.[5]
The President should benefit from institutional independence in the parliamentary governance model, where power strongly depends on the executive and legislative pillars. This allows her/him to exercise the functions of a neutral arbitrator as the head of state, simultaneously safeguarding state unity and national independence. The President is fully distanced from exercising foreign politics, whereas the Government is the sole institution for exclusively exercising foreign politics, and the Government may grant the President the power to exercise foreign politics. The President is a fully apolitical figure, and her activities are not shaped by the political interests of specific political groups, whether the ruling party or opposition powers. This stands in contrast to the executive authority, which is formed by the political party that has won the parliamentary elections in the parliamentary governance model. The President is a wholly apolitical figure, and her/his actions are not influenced by the political interests of any particular group, be it the ruling party or opposition factions. This starkly contrasts the executive authority, which is comprised of the political party that emerges victorious in parliamentary elections within the parliamentary governance model.
1. Representation Powers of the President of Georgia
Georgian legislation does not define the meaning of representation in foreign relations. The Constitution is a dynamic document, with every reform corresponding to the existing political-legal reality. Given its “dynamic nature”, it is challenging to comprehensively define the meaning of representation and its potential scenarios, as various actions may fall under this function over time. For instance, with the advancement of communication technology and political leaders’ use of social platforms to express their opinions, representation methods have evolved. Thus, when exercising representation, the head of state employs traditional means like phone calls, personal representation, or meetings and utilizes any form of virtual or written expression where the President is depicted as the head of state both domestically and internationally.
It has been subject to interpretation whether any activity of the President is related to foreign affairs. The systematic interpretation of the Constitution of Georgia and the correct interpretation of the state’s existing governance model address this question. Not all powers of the President that imply the involvement of the President in the foreign affairs field require the Government’s consent – only those powers shall be subject to the Government’s consent related to the exercise of foreign policy. Therefore, the following powers shall be separated from one another: the powers that directly imply the foreign policy and those that do not relate to the foreign policy but correspond to the foreign policy implemented by the Government.
The representation power of the President is inherent for the head of state, therefore, the President exercises such power internally within the state, as well as abroad - the President is a state representative in the field of foreign affairs, as well as internally in the “internal field”. The President’s representation of the state may or may not be directly related to exercising the parliamentary governance model. It is evident that in countries with parliamentary governance models, the Government carries out foreign policy. Without an agreement with the Government, the exercise of foreign policy will violate the Constitution. The President’s working visits abroad took place in those countries where such visits serve the purpose of European integration envisaged by the Constitution. To determine whether the President has violated the Constitution, it was crucial to clearly define the contextual component, as the President’s representation cannot automatically be interpreted as the implementation of foreign policy.
No Constitution of a European country indicates that the President’s representation requires the consent of the Government. The agreement or consent mechanism is automatically implied when exercising foreign policy, as the model of parliamentary governance does not support the existence of so-called “bicephalic” foreign affairs. If the parliamentary governance model is present in a country, it implies that the conclusion of an international treaty or the conduct of any negotiation cannot be achieved without the involvement of the Government. This is because it arises from the exercise of foreign policy, which cannot be carried out independently by the President, who is tasked with the function of a neutral arbitrator. Hereby, it is evident that the President, holding the function of a neutral arbitrator, is provided with the symbolic authority to meet the head of state, conduct communication with such persons in any form, express her opinions or make statements, meet those persons on the territory of Georgia as well as abroad within the scope of her apolitical and neutral mandate.
The meaning of representation and whether certain international visits abroad constituted the exercise of foreign policy, along with the main topics and outcomes of such meetings and their contents, should have been the subject of the Court’s discussion. Pursuant to the dissenting opinion presented by the Justices of the Constitutional Court, in particular, Justice Irine Imerlishvili, Justice Giorgi Kverenchkhiladze and Justice Teimuraz Tughushi, in relation to the Conclusion of the Plenum of the Counstitutional Court of Georgia dated 16 October 2023, along with the existence of formal consent of the Government of Georgia, the Constitutional Court was required to determine the contextual nature of the working visit, particularly, whether the President had overridden the scope of her powers through such visit and/or whether she had breached the exclusive power of the Government in relation to the execution of the foreign policy.[6]
The above issue is of crucial importance, as it is possible, for instance, that the President had carried out her working visits with the consent of the Government, although the content of such meetings could have been non-compliant with the direction of foreign policy chosen by the Government. In a scenario where formal consent had been obtained, even though the context of the meeting was not compliant with the Government’s position, the President would have violated the Constitution. The Constitution of Georgia not only formally determines the requirement of the consent of the Government of Georgia for the President’s exercise of her representation powers related to foreign affairs. Not only is the working visit subject to the Government’s approval but also, when exercising representation powers, the position expressed by the President is of crucial importance since representation does not only imply meetings with foreign leaders and leaving the country. If the same logic is applied, it is conceivable that the President could have exercised her representation powers while in Georgia. This exercise of authority could have been directly connected to executing foreign policy duties. In such a scenario, regardless of whether the Government had given its consent, the President’s actions might have led to the articulation of a stance that diverged from the official position held by the Government.
The “unauthorized” formal working visit of the President may not be related to the exercise of the foreign policy. Working visit abroad is a form of representation, but it does not constitute the only form thereof. The so-called “unauthorized working visits” were conducted by the President in the previous years as well – those visits were discussed during the President’s annual hearing at the Parliament,[7] which was followed by the statement of the ruling team.[8] The President stated that on 26 February 2022 she was refused by the Government to conduct international working visits in Paris, Warsaw, Brussels and Berlin, thus, she cancelled all of the official formats and “transformed” working visits into the private meetings, whereas such restrictions were inflicting damages to the state.[9] The Government’s refusal addressed to the President’s visits, was not substantiated.
The dissenting opinion states that “foreign affairs constitute a complex discipline that intends ensuring various different interests of the state, which entails matters related to the state security, economic development and well-being, protection of the human rights and freedoms and etc”.[10] Further, “the purpose of the foreign policy and the impact thereof on the state’s foreign positioning is of essential importance, whereas the place of the exercise of the foreign policy lacks such importance”.[11]
Pursuant to the opinion of the representatives of the Parliament, Article 52(1)(“a”) of the Constitution entails all forms of representative powers and does not leave out any scenario wherein the President can exercise such authority without the consent of the Government, the existence of the consent is mandatory, and the Constitution of Georgia entails no exceptions in this regard.[12] The representatives of the Parliament argued that the defective practice that exists in the mandatory nature of the Government’s consent in relation to the exercise of the representation powers internally within the state is problematic, the practice of requesting and granting consent is not established and requires to be corrected.[13] Does the latter mean that the representation is divided into internal and foreign representations? Would such an approach be acceptable? We believe that it would not be acceptable. The representation lacks a definition on the legislative level, and the requirements for representing the state internally are unclear, necessitating further clarification. It is evident that throughout the years, the President did not require any approval from the Government, and such approvals were obtained only for international working visits.
The Conclusion of the Plenum states that representation by the President entails acting on behalf of the people in any form and before the subjects of international law, various countries, international organizations, their representatives, as well as “any other case, the applicability of which to the requirements of Article 52(1)(a) shall be resolved on a case-by-case basis”.[14] Therefore, the Conclusion of the Plenum does not entail exhaustive list in terms of defining the representation in the field of foreign affairs and highlights that the exercise of the representation authority by the President shall be resolved on a case by case basis. Due to the fact that the legislation does not define what is meant under the representation within the scope of the Constitution, the sole body that is entitled to define this matter is the Constitutional Court itself. For example, would the refusal of the President of Georgia to engage in phone communication with the President of a foreign state be considered as intended to protect the Constitution [without the respective consent of the Government]? Furthermore, in terms of expressed politics, would the following two scenarios be assessed identically: communication with the President of a European state initiated by the respective President of such European country and phone communication between the President of Georgia and the leader of the occupying country initiated by the leader of the occupying country? How would these two scenarios be assessed without consent from the Government of Georgia? In what format should the President apply for the Government’s consent regarding any statement that may be made pertaining to events taking place in the world? For example, it can be theoretically discussed that the President was also in breach of the Constitution when meeting leaders of various countries on the territory of Georgia, participating in phone communication, or disclosing information on social media channels, all of which represent forms of the President’s representation provided that the President had not obtained the respective approval of the Government of Georgia.
2. Standard of the Powers of the President in Georgia in the Field of Foreign Affairs
Are the President’s authorities in the field of foreign affairs limited to Article 52(“a”) of the Constitution of Georgia? The answer is no, since apart from the authorities listed in this Article, other necessities may require the President’s involvement in foreign affairs that do not necessarily entail carrying out foreign policy. In the dissenting opinion, the justices discuss matters pertaining to foreign affairs but do not solely involve the execution of foreign policy. In particular, “Article 52 of the Constitution of Georgia sets forth certain exclusive authorities of the President of Georgia, the exercise of which may, among other things, require the President of Georgia’s participation in the foreign affairs field. For example, when exercising these exclusive authorities, the President of Georgia may need to hear and analyze the opinions of various international organizations and communicate with different international actors in various forms, which undoubtedly requires no consent from the Government”.[15]
The title of Article 52 of the Constitution of Georgia reads as follows: “Powers of the President of Georgia”; therefore, the purpose of this Article is to determine the scope of the President’s powers, albeit not exhaustively. Pursuant to subsection “I” of the first part of the said Article, the President of Georgia, apart from the listed and determined powers, also “exercises other powers set out in the Constitution”. The latter wording is absolutely clear, as it is not possible to determine the detailed list of the President’s powers, given that the Constitution reflects only general norms establishing the general framework and competencies of constitutional bodies. Subsequently, constitutional bodies may further exercise certain authorities within the scope of such general powers and the legislative framework.
It is noteworthy that pursuant to Article 52 of the Constitution of Georgia, the President “exercises other powers set forth in the Constitution” and not “the powers set out in this Chapter”.[16] The latter confirms the fact that certain powers that are not exhaustively specified in Article 52 may be held by the President as immanent deriving from the status and governance model. For example, the Constitution of Georgia neither indicates that the President is a neutral arbitrator (for instance, does that one of the functions of the President is to defuse conflicts or crisis), nor does it define what is meant under the symbolic and ceremonial powers of the President. Despite the foregoing, the President acting in her capacity as the constitutional body may exercise any authority solely within the scope of the Constitution. Hence, certain powers may be derived not necessarily from Article 52 of the Constitution but from other Articles, whereas any action that exceeds the scope of Article 52 shall be derived from other provisions of the Constitution. The provisions governing various fields may be found in different chapters of the Constitution, for example, Article 78 determines the obligations not only of the President but generally the obligations of the constitutional bodies to adopt any and all measures for the purposes of ensuring integration in the European Union and the North Atlantic Treaty Organization within the scope of their respective powers.
3. Requirement to Obtain the Consent of the Government of Georgia in the Field of Foreign Affairs
The powers of the President of Georgia in the field of foreign affairs that are determined under Article 52(1)(“a”) of the Constitution are exercised in agreement with the Government, except for the power to appoint the ambassadors (wherein instead of “consent” “reference” is indicated). Therefore, the President of Georgia requires the consent of the Government (acting in its capacity as the collegial body) to conduct negotiations with other states, international organizations, conclude international treaties. Based on the consent of the Government of Georgia, the President engages in the process of exercising foreign policy, which is reflected in the process of conducting negotiations by entering into agreements and etc. The said powers, as indicated in the dissenting opinion, cannot be arbitral and ceremonial since the exercise of these powers results in the consequences for the state.[17]
Exercise of the President’s arbitral functions requires certain political independence of the head of state, as “should the President require the consent of the Government of Georgia on each occasion when the President intends to express her position on the foreign political arena, the said position would always be seen as the opinion of the Government of Georgia (in those scenarios as well where deriving from the foreign policy strategy, the Government of Georgia prefers to have the President divulge the said position). The requirement to request formal consent of the Government of Georgia to carry out the abovementioned activity would alter the function of the President and would make the action of the President acting in her capacity as the politically unbiased head of state meaningless.[18]
The Government of Georgia is a collegial, supreme executive body, and it is responsible for certain actions or decisions resulting from the exercise of foreign policy. Therefore, all constitutional bodies shall comply with the foreign policy adopted by the Government.
It is evident that generally, there is a possibility that the President of Georgia damages, imposes a threat to the foreign policy carried out by the Government, provided, however in the particular working visit organized by Ms. Salome Zurabishvili, it cannot be determined whether and how President damaged or hindered the exercise of the foreign policy implemented b
The Changes in Drug Laws to Apply the Death Penalty for Drug-Related Offences in Vietnam
Full text linkVietnam has a history of executing individuals for particularly serious crimes. Applying the death penalty for drug-related crimes has sparked considerable debate since the first criminal code in 1985. Vietnam has retained this toughest punishment as one of the deterrent methods to combat drug trafficking in the last three decades. However, as a retentionist-and-reductionist state, Vietnam abolished capital punishment for several crimes in the last code (2015), including drug possession and appropriation. The application of the death penalty for drug offences in Vietnam has evolved in response to international standards and the country’s global integration. Despite these changes, the death penalty remains a contentious issue in Vietnam, with the country maintaining its right to use it in its criminal code system. The path towards the complete abolition of capital punishment for drug offences is still uncertain because this complex issue involves political, legal, and social aspects in Vietnam’s context, particularly when the Communist Party’s ideologies still prefer a supply-driven reduction. This study uses personal reflections from over 20 years to focus and combine with the grey literature from national reports and desk-study in Vietnam’s legislative documents. Seven specific thoughts with relevant recommendations in the last section will explain why we should need further evidence to (re)call for consideration to reduce the death penalty for drug offences before requesting/asking Vietnam to abolish these concerns immediately.
Keywords: Drug-related offences, capital punishment, crime policy, Vietnam.
Introduction
Law and punishment have existed in Vietnam to prevent and combat crimes and ensure national security and social order. Since the implementation of the Renovation Period (Đổi Mới in Vietnamese) in the middle of the 1980s, particularly after Vietnam released a new Constitutional vision (1992), increasing attention has been given to capital punishment in Vietnam. In Vietnam, the information and data about the death penalty have been limited strictly and unpublished officially by media communication caused by legal matters and political attitudes.[1] Particularly, it is tough for foreigners to obtain valid and reliable data to assess the practical application and executions in Vietnam.[2] Vietnamese researchers can understand and collect the data through their native language pathways, but it is still unclassified, and even ‘they are very wary…and fear reprisals for investigating.’[3] Besides that, Vietnamese scholars are often self-conscious about assessing the death penalty’s policies and executions as objectively as possible.[4] To a lesser extent, they only share this information at national events with the official permission of authorities to avoid trouble because Vietnam had classified all court documents, records, and reports on the death penalty as belonging to the ‘extremely secret level’ since the 2000s.
Alongside implementing the economic reform within the scope of the Renovation Period (Doi Moi in Vietnamese) in the 1980s, the Communist Party of Vietnam (CPV) has been committed to updating and adjusting its legal norms and perspectives in punitive applications. The Criminal Code of Vietnam (CCV) was published in 1985 as the first official legal document in criminal law’s field after Vietnam’s war reunification. The death penalty is classified as one of the six principal sentences in the Vietnamese punishment system, including warning, fine, non-custodial reform, termed imprisonment, life imprisonment, and the death penalty. It is prescribed in regulations as 29 separate articles at seven independent chapters, accounting for 14.89% of the total 195 offences, but did not apply to drug-related crimes. Specific conditions, scopes and subjects of application of the death penalty are also stipulated. Accordingly, the death penalty is only available for offenders in particularly serious cases such as violation of national security; crime against peace; crime against humanity; war crime; socialist property violation; violation of human dignities such as health violation, murder and rape. However, this toughest punishment is not applicable for youth offenders and pregnant women or when the offender is tried, meanwhile suspending the execution of those pregnant or women taking care of their children under 12 months old.[5]
Based on society’s distinct conditions and cultural backgrounds, the 1985 CCV has been amended four times to respond to the increasingly demanding requirements of Vietnam’s society after Đổi Mới. The first time was on 28 December 1989; the amended and supplemented provisions with several articles of the 1985 CCV prescribed four drug offences in Article 96a, and there is a maximum death penalty. Secondly, on 12 August 1991, the law amending and supplementing several articles of the 1985 CCV prescribed the death penalty for other crimes, namely fraud, misappropriating socialist assets (Article 134); fraud appropriating the private property of citizens (Article 157); bribery (Article 226). Thirdly, on 22 December 1992, Vietnam’s government continued to amend and supplement to apply the death penalty for smuggling. On 10 May 1997, it has been added the death penalty for six law-prescribed offences in the final adjustment. At the same time, lawmakers split Article 96a into four different types (185b, 185c, 185d, 185đ) and retained the death penalty for this crime. Article 112 stipulates rape is divided into two charges, rape and rape against the child (Article 112A), and also retains the death penalty for this crime.
Notably, in all four amendments and supplement times, the supply and demand for drugs began to increase in Vietnam. To enhance drug control with stricter punishments, the death penalty was codified as the harshest sentence for drug-related offences in article 96a in the First Amendment and supplementation of the 1985 CCV in December 1989.[6] As a result, the fourth amendment of the 1985 CCV expanded capital punishment for drug-related crimes with seven separate articles, among 44 death-sentence articles in 1997, accounting for 20.37% of the total 216 articles. The 1999 CCV, however, narrowed down and clearly defined the scope and conditions of this punishment. In 1997, Vietnam signed all three United Nations Drug Control Conventions to incorporate international drug control standards into domestic law.[7] Consequently, the assessment of particularly serious drug-related crimes, whether punishable by death or life imprisonment, was re-examined and re-regulated. Article 200 of the 1999 CCV, which pertains to forcing and inducing someone to use narcotics illegally, changed the punishment from the death penalty to life imprisonment. The death penalty was also removed for some specific crimes to align with the new requirements of economic, political, social, and international integration. The number of articles prescribing the death penalty was reduced to 29, accounting for 11% of the total 267 articles in the 1999 CCV.
However, while reprieving and commuting could be applied to economic offences (e.g., embezzled property and bribed property), reducing the capital drug-related offences and their related reprieves was not yet implemented as much as possible.[8] Among eight death articles abolished in the 1999 CCV, the illegal organisation for drug use (article 197) passed; meanwhile, the four drug-related activities (stockpiling, transporting, trading, and appropriating) merged into one article in the 1999 CCV (article 194). After over 15 years of implementing the 1999 CCV, many conditions and the scope of applying the death penalty have changed due to various factors, prompting Vietnam’s policymakers to reform this severe punishment towards humanitarian goals. In the latest version of the 2015 CCV and its first amendment in 2017, the reduction of death penalties remained a debated topic among National Assembly delegates. Currently, there are 18 ‘particularly serious crimes’ punishable by death, in which drug trafficking activities have re-separated as similar to the 1985 CCV with four independent articles, but illegal stockpiling and appropriation of narcotics abolished the death penalty. In other words, there are only three drug-related crimes in the latest code (2015) compared to seven in the first code (1985).[9]
In this study, combining grey literature and legislative documents, I will (re)call for further consideration to understand fully why Vietnam still resist the death penalty for drug trafficking activities and how Vietnam should act to reform their current drug laws to reduce it before abolishing. As part of my observations and reflections over twenty years on this topic, this study has continued to remain and support my previous studies and other Vietnamese scholars cited in this paper’s references. It will be analysed after briefing the current drug laws with this punishment in the region compared to Vietnam’s perspectives. In this part, the actuality of the given issue, research topic, established aims, tasks, and stages are emphasised. Structuring the problem and clearly establishing the issue are important.
1. Drug-Related Offences and the Death Penalty in Southeast Asia Region
The ongoing movement to abolish the death penalty to uphold the fundamental ‘right to life’ is expected to become a widespread trend soon. Yet, some nations persist in upholding and enforcing capital punishment within their legal systems. Asia is at the heart of the global effort to end the death penalty, which covered over 90% of all executions in the past decades, with a fluctuation in the number of executions in 35 countries, including several Southeast Asian countries.[10] Despite the variety of political, religious, historical, and social systems, it is an irrefutable issue that the region remains many drug-related executions occur.[11] Accordingly, approximately 75% (8 out of 11 countries) impose capital punishment for these most serious crimes in their domestic regulations. Table 1 below shows this region’s different policy perspectives with diverse death penalty applications. Noticeably, while those eight countries argued their applicable punishment for drug-related crimes aligned with the international law (para 2, article 6 ICCPR) to “impose only most serious crimes”, the recent arguments from the United Nations do not support this claim.[12]
Table 1: The death penalty (including drug-related offences) in the Southeast Asian countries.
Those who advocate for maintaining the death penalty for drug-related crimes do so in two main ways. One approach is through mandatory sentences, and the other is by incorporating provisions in criminal law that prescribe the death penalty for certain offences but allow for commutation to life imprisonment. For the former, a mandatory sentencing system automatically imposes the death penalty upon conviction of a crime under their legislative regulations. Singapore, for instance, is a prominent example in Southeast Asia. Under section 17 of the Misuse of Drugs Act, anyone who possesses, consumes, manufactures, imports, exports, or traffics illegal drugs (above a certain amount) will be sentenced to death, regardless of any potential mitigating factors. A national survey revealed that at least one-third of 1,500 Singaporeans aged between 17 and 74 support this issue.[13] For the latter, some states choose to temporarily suspend the death penalty for drug-related offences or seldom carry out executions of those convicted of them based on specific considerations and practical contexts. For instance, while Thailand still officially imposes the death penalty for drug trafficking, only 12 out of 281 potential executions between 1935 and 2001 were for drug-related crimes; executions were even rarer between 2009 and 2018.[14] However, this nine-year hiatus ended in 2018 with at least ten executions, including one for a drug offence by a woman from Myanmar, though the number of executions fell back to zero in 2019. In essence, Thailand is a typical case in Asia of a de facto abolition of executions for drug-related crimes, even though they are still codified in law.
2. Preventing and Combating Drug-Related Offences through Resisting the Strictest Punishments: A Leading Powerpoint of Communist Party and Government
In Vietnam, the Communist Party is ‘the leading force of the State and society… maintains close ties with the People, serves the People, submits to People’s supervision and is accountable to the People in its decisions’ (Para 1 &2, Article 4, the 2013 Constitution). Accordingly, the Party strongly established its position on this issue and ‘brooked no debate or drafting that differed from its views’.[15] As the highest functions, the Communist Party of Vietnam (CPV) is central in establishing and controlling law enforcement agencies for ‘protecting national security and social order’ (Article 65, the 2013 Constitution). Dealing with drug concerns, Vietnam has established multiple agencies in their drug control system under the leadership of CPV. Under the CPV’s commission, Directive No.06/CT-TW of the Political Bureau of the Party in 1996 has been considered one of the first official documents to expose the role of the CPV in drug control. This document is requested that:
Taking all measures to prevent drug sources from being brought into Vietnam from abroad, punishing promptly and severely those who produce, traffic, store, organise or force the use of drugs.
In Vietnam, the Party will instrumentalise ‘the Government and its ministries, the legal system, economic life, and social life, masks other strands of thought and action’.[16] Regarding social order, accordingly, preventing and combating drugs are compulsory responses of Party Committees, members and organisations at all levels, in which the drug law enforcement forces are the central bodies.[17] To deploy this requirement, as a core armed force of the CPV, the Ministry of Public Security (MPS) established the first-ever anti-narcotics police forces (ANPF) in 1997 to be responsible for directly advising the CPV, the Government, and the National Committee for AIDS, Drugs and Prostitution Prevention and Control. Accordingly, the MPS’s Decision No.192 determined that:
They (ANPF) carry out professional measures to prevent, detect, fight, and handle all types of drug-related crimes. They directly investigate large, especially complex, drug crimes… contributing to protecting national security and preserving social order and safety.
To support absolutely the ANPF (MPS) in supply reduction, Vietnam passed the first National Action Plan on Preventing and Combating Crimes (known as Program 138). Particularly, the Resolution No.09/1998/NQ-CP, Vietnam also identified that:
Using synchronous measures to promptly and resolutely suppress dangerous crime (e.g., organised crime, drug trafficking, and others). The Ministry of Public Security (MPS) shall preside over and coordinate with relevant ministers and branches to improve and strengthen professional forces to directly prevent and fight against those crimes.
As part of the main duties to implement Project 3 of Program 138 – Fighting and Combating Organised Crimes, Particularly Serious Criminals, and International-related Crimes, ANPF’s main functions, obligations, and responsibilities focus on anticipating, prevent, and combat drug-related crimes, including proposing to amend the 1985 CCV to apply the strictest measures for drug-related offences. Most complex operations have resulted in several deaths for traffickers and their accomplices, as the ANPF’s external officials also observed that.
The number of death sentences has increased rapidly, which can be explained by the fact that the amounts of drugs seized by law enforcement agencies are exceptionally large, many times greater than the minimum amount required to attract a death sentence under the law.[18]
The situation of drug trafficking from the Golden Triangle area pushed the high volume of heroin into Vietnam’s market, which made the rate of drug users and drug-related crimes more severe and threatened social order. To deal with this concern by being influenced and experiencing the model of the Soviet’s sentencing in dealing with criminals, CPV could be ideologised that increasing the severity of punishment can deter drug offences.[19] Therefore, at the fourth amendment of the 1985 CCV, they proposed to apply capital punishment for drug-related crimes with seven separate articles, among 44 death-sentence articles in 1997. By establishing the comprehensive and professional task force (ANPF) in the late 1990s, CPV expected its leading role forever to prevent and combat the war on drugs by applying punitive-based policing to investigate and prosecute any drug dealers with the toughest punishment.
2.1. Rising the Transnational Narcotics Trafficking: Applying the Death Penalty to Respond to the ‘Cat-and-Mouse’ Game
As a transnational hub, the threat of illicit drug resources from outside has continued to explore Vietnam as a valuable and economic target as practically possible in both destination and transit markets. Our grey literature identified that in recent years, drug trafficking has become much more complicated in Southeast Asia, with rapid increases in local consumption linked to growing affluence and social expectations, particularly with synthetic drugs and their diverse types.[20] Geographically, porous borderlands with Cambodia, China and Laos and a long coastline offer advantageous conditions for trafficking illicit drugs into and through Vietnam. In the last reports on trends and patterns of transnational organised crime, UNODC also warned that Vietnam is now exploiting transnational networks to transfer synthetic drugs into third countries and beyond.[21] To respond to it, under requesting of the CPV, the ANPF routinely organises raids and intensively suppresses drug-related crimes as the highest operation in their policing duty. Applying the death penalty for these practically serious crimes is the priority in the policing strategies of ANPF. In other words, punitive-based policing was considered one of the specialised duties of fighting and combating drug offences under the request of the CPV. Some ANPF officials recently shared that.
Drug use and addiction are the fastest pathways to criminal behaviours…. and drug use makes up the highest number of offenders across society…preventing and combating all drug-related crimes are our most prioritised duties: nothing more, nothing less.[22]
Additionally, as a prominent member of the Association of Southeast Asian Nations (ASEAN), Vietnam has taken seriously its responsibility to implement regional drug control policies through pre-dominating supply reduction operations to combat drug trafficking. Although Vietnam is facing critical suspicions about the rigid policy to use the death penalty to demonstrate its powerful provision in the war on drugs, retaining this toughest punishment is considered a clear declaration in their drug policy and law.[23] As Luong (2021) argued that
Concern over the situation led to new provisions in counter-narcotics policing in Vietnam, namely, a zero-tolerance measure for any drug trafficking groups/networks... as soon as any organisation grows in size and operation, it will attract attention from the police. The Communist Government will not tolerate the existence of any organised criminal groups.[24]
According to the MPS’ annual report, between 1992 and 2000, the annual crime rate averaged 60,000 cases, of which there are around 11,000 drug-related crimes, approximately 20 per cent.[25] Between 1993 and 2010 (excluding 2003-4 without data), the total number of defendants sentenced to death was 2,600 defendants.[26] Numbers of death row defendants tend to increase in this period, more particularly with the most remarkable growth of drug-related crimes occurring since 1997. Courts at all levels sentenced 22,058 offenders for drug-related offences involving 288 death penalty, 255 sentences of life imprisonment, 2,292 of between 10 and 20 years in prison and 19,223 of less than 10 years or other kinds of punishment.[27] Although Vietnam succeeded in eradicating opium poppy cultivation, from an estimated 18,000 hectares in 1990 reduced to just 32,4 hectares in June 2004,[28] they remained an important Southeast Asian transit route for trafficking illicit drugs. Perhaps Marina Mahathir was correct with the specific statement, ‘traffickers continue to smuggle drugs across borders in a continuous game of cat-and-mouse with law enforcement’,[29] and they also ignore the strictest punishment under Vietnam’s regulations. Over the past three years, on average, more than 20,000 cases and 30,000 drug offenders have been detected and arrested annually, and substantial quantities of various types of drugs have been confiscated.[30] Notably, over 1,000 intricate drug locations have been eradicated, and numerous transnational drug trafficking routes have been dismantled, thereby preventing the smuggling of drugs from foreign countries into the domestic market. It is one of the main reasons there were different views when discussing the Draft of the 2015 CCV by the National Assembly at the 10th session (known as the Draft) to amend Article 194 of the 1999 CCV. While withdrawing capital punishment for illegal possession (Article 249) and appropriation (Article 252), Vietnam wants to retain it for illegal trading (Article 250) and transporting (Article 251). The Draft supports this argument due to one out of the three main reasons:
Geographically, our country is close to the “golden triangle”, a major illegal drug producer.
The Reflections of the CEDAW Convention on the Legal status of Women in Algerian Family Code
Full text linkEven though the Convention on the Elimination of All Forms of Discrimination Against Women is the first international document that guarantees all rights for women in all areas of life and ensures all effective means to eliminate discrimination against them, the latter has come with a set of positive and negative effects on the Arab Islamic family and the Algerian family.
After Algeria ratified the CEDAW convention to eliminate all forms of discrimination againstwomen and uphold the principle of equalitybetweenwomen and men, the family legislator found itself amending numerous legal provisions in line with the principles of the Committee on the Elimination of Discrimination against Women. This resulted in granting mature women the right to conclude their marriage contracts themselves, making their consent in the marriage contract equal to that of men. Additionally, it imposed restrictions on men’s right to polygamy as a safeguard for women while also bolstering their position in terminating marital relationships by granting them the right to seek divorce through khula and granting them guardianship rights.
Keywords: CEDAW, women, family code, equality.
Introduction
Women’s rights are considered a priority for the international community.
This concern has been manifested through convening conferences and seminars and establishing several international organizations to achieve a global system to protect these rights.
This has led to multiple conventions that obligate all United Nations member states to sign and implement their provisions without considering their suitability and compatibility with the principles and needs of countries. One of these conventions is the CEDAW convention.
The CEDAW convention has sparked an intense debate because it is the most daring convention to address the issue of women’s rights and family rights, especially with unparalleled candor.
It aimed for equality in rights and duties as commonly practised in previous declarations, but it did not confine itself to a declarative nature; rather, it surpassed it to become mandatory. It stipulated the establishment of a United Nations committee known as the Committee on the Elimination of Discrimination against Women, tasked with monitoring women’s issues, caring for their rights globally, and monitoring the extent to which countries comply with the convention’s provisions.
Since women’s rights are of interest to the Algerian state, as they are to other countries, it sought to join this convention to empower women and align with the international system. It also sought to adapt domestic legislation in accordance with the provisions of this convention. Among these adaptations was the amendment and supplementation of laws, including the Family Law, which is the most important law concerning women rights. The recent amendments included several articles that entrenched gender equality in marriage and divorce matters, influenced by international agreements. This was influenced by a report from the Committee on the Elimination of Discrimination against Women on January 27, 1999, which expressed deep concern that “the Family Law still contains many discriminatory provisions that deprive women of fundamental rights such as free consent to marriage”.[1]
Based on the preceding, while the CEDAW convention constitutes a positive step towards advancing women’s rights worldwide, the question arises: What are its prominent impacts on family legislation in promoting women’s rights when amending the Algerian Family Code? We address this issue by examining the reflections of the CEDAW convention on the legal status of women in marriage matters as a first point, followed by presenting its legal status in matters of marriage dissolution in compliance with the provisions of the CEDAW convention as a second point.
1. The Impact of the CEDAW Convention on the Legal Status of Women in Marriage Contracts
The Convention on the Elimination of All Forms of Discrimination Against Women, issued in 1979 and ratified by Algeria in 1996 with certain reservations, is regarded as a significant achievement of the international community in protecting women’s rights and ensuring their quality with men. Among the issues addressed by this convention concerning women’s rights during the conclusion of marriage contracts and its codification in Algerian family law is the women’s right to freely choose their spouse and enter into marriage contracts, as well as their right to impose conditions on the spouse in the marriage contract.
1.1. The right of women to enter into marriage contracts
The CEDAW convention advocates for women’s freedom to choose their spouse and prohibits the conclusion of marriage contracts without their full and voluntary consent, as outlined in Article 16, the first paragraph. It urges member states to take appropriate measures to eradicate discrimination against women in all matters related to marriage and family relations, ensuring specifically the equal right of men and women to freely choose their spouse and enter into marriage contracts.[2]
The Algerian legislator also stressed the woman’s consent to marriage contracts and her right to choose her husband freely. This document is evident in the requirement of several single pillars of the combined knot,[3] even in Islamic law, where it is considered one of its pillars.
Therefore, the Algerian legislator has granted women the right to choose a suitable spouse with whom they wish to build a private marital life, considering that the family is the fundamental nucleus in shaping society. However, the question remains: Has the legislator left this right unrestricted ?
1.1.1. Women’s right to choose a spouse
Referring to the Algerian Family Law, we find that it acknowledges women’s right to enter into marriage contracts with their consent, without coercion. Article 4 defines marriage as “a contract of consent between a man and a woman”,[4] while Article 10 states that consent is manifested by a positive expression from one party and acceptance by the other party in words implying the meaning of marriage according to Islamic law. Similarly, Article 9 asserts that consent is the sole pillar of the marriage contract, thereby equalizing the rights of men and women in this regard.[5]
The right to consent gives rise to another right, namely the woman’s right to choose her spouse, as outlined in Article 16, paragraph 4 of the Convention on the Elimination of All Forms of Discrimination Against Women. The Convention advocates for equality between women and men in all matters concerning marriage, including selecting a spouse by the woman’s full volition. This is known as the principle of “the sovereignty of will” in contracts, where contracts are established based on the will of both parties.
All international treaties have emphasized the right to choose a spouse, leaving it unrestricted, thus disregarding religious, racial, and even environmental beliefs of the women’s surroundings. This may be attributed to the hardships women have faced in some societies, such as being forced into marriage for the sake of financial gain obtained by the father or being inherited to another person after the death of their spouses.[6]
As for the Family Code, it recognizes the women’s right to choose their spouses when entering into marriage without imposing any conditions on this right. It uses the term “consent” without distinguishing between women and men. However, upon examining this law, we find that it includes several provisions that may restrict this choice, such as the requirement for the presence of the guardian on the day of concluding the marriage contract, the issue of a Muslim woman marrying a non-Muslim, and various impediments to marriage. All of these provisions are derived from Islamic law.
Additionally, in Article 222,[7] the legislator states that the provisions of Islamic law shall apply without specific provisions in the Family Code. Furthermore, in Article 24 of the Family Code, the legislator mentions absolute impediments to marriage, including kinship, affinity, and breastfeeding, which restrict women’s freedom to choose their spouses. This restriction is not uncommon in societies because kinship holds significance and cannot be disregarded by women.
When exercising their right to choose their spouses, women can select their partners based on the qualities they desire in a life partner. The character and uprightness in their religion and their chivalry are among the most important attributes that women value. For any virtue in a man holds no value if devoid of religion and good character.[8]
For women’s freedom in choosing their life partner to be complete, their consent must be valid. It is considered in valid if the woman lacks the legal capacity or is incompetent. Hence, a relationship between consent in marriage contracts and the legal age for marriage begins.[9]
Article 7 of the Family Code[10] states that the legal capacity of both men and women is attained at 19. Therefore, the Algerian legislator has set the legal age for marriage at 19 for both spouses. However, there is an exception to this requirement, allowing minors who have not reached this age to marry with the judge’s authorization, considering necessity and interest.
The Algerian legislator was criticised for not specifying the minimum age for marriage and leaving the matter unrestricted. However, it is commendable that the judge is required to ensure the ability of both parties to marry, whether it be financial, mental, or physiological, including considerations of physical maturity or puberty as dictated by Islamic law.
Dr ChawarJilali’s opinion on this matter states: “The interests of the parties themselves and society dictate that minors should not be granted the right to marry until they reach a certain age at which their physical ability to bear the consequences of marriage is confirmed. Theyshouldalsopossess a sufficient level of discernment to understand the outcomes and consequences of what lies ahead. To achieve these objectives, the legislators should set the minimum age for girls at sixteen years and for boys at eighteen years. Marriageshouldbeprohibitedregardless of the interest or necessity if the age at the time of the contract is below that threshold.[11]
Making marriage authorization the responsibility of the judge serves as legal protection for underage women to prevent them from being coerced into marriage without their consent. The judge ensures her full consent to the person she is about to marry, laying the foundation for the family, which is essential for societal formation.
After a woman freely chooses her spouse without any external pressure, she faces another issue related to concluding the marriage contract: does the woman have the right to initiate her marriage contract as one of the parties? To what extent has family law legislator enshrined this right for her ?
1.1.2. The women’s right to conclude a marriage contract
International conventions stipulate women’s right to contract their marriage independently without requiring a guardian’s approval for the marriage contract. Article 16 of the Universal Declaration of Human Rights asserts equality between men and women in the right to marry. This means that just as men have the right to enter into marriage contracts independently, without any restriction, women also have the same freedom and level of enjoyment of this right.
As affirmed by the Convention on the Elimination of All Forms of Discrimination Against Women, women are equal to men in matters concerning marriage. Since men can marry without needing another person, such as a guardian, women should also be able to marry without any requirement. However, the recent amendment to the family law has regressed on the issue of guardianship through Article 11,[12] which states: “An adult woman may marry in the presence of her guardian, who may be her father, a relative, or any person of her choice. Without prejudice to the provisions of Article 7 of this law, the guardianship of minors’ marriages is undertaken by their guardians, who are the father, closest relatives, or a judge for those who have no guardian.”
The text of the article indicates that the Algerian legislator distinguished between women who have reached the age of maturity and granted them the right to marry directly while preserving the role of the guardian in the marriage of minors. This attempts to embody the principle of equality between women and men as stipulated in the Convention on the Elimination of All Forms of Discrimination Against Women.
Indeed, the legislator in this article does not explicitly grant mature, rational women the right to enter into marriage contracts independently but instead uses implicit language by changing the wording of Article 11 of the Family Law from “the guardian undertakes marriage…” to “the mature woman contracts…”. This leads to contradiction and ambiguity in Articles 9 and 3 of the Family Code, as the guardian’s role becomes merely formal and secondary since he cannot force his ward to marry in all cases. The wording of Article 11 explicitly states “presence” rather than “approval”,[13] meaning that the woman herself enters into the marriage contract, and the presence of the father suffices without requiring his consent. If he attends but does not consent, it does not affect the marriage contract. The right granted to mature women through this article is the choice of their guardian or someone else, leaving it open-ended. Here, we wonder if she can choose someone outside her family.
So, the family legislator entrenched the women’s right to personally conclude and initiate their marriage contract and be satisfied with the guardian’s presence at the contract. Thus, guardianship in the marriage contract has become a mere formality, devoid of substance, as it does not require them to bring a specific guardian to the contract, granting them the freedom to choose the guardian. As a result, the guardian now has the same role as a witness, as both must attend the contract session.[14] Consequently, the mature woman bears alone the responsibility for initiating the marriage of her own full volition without facing any pressure from the guardian because his consent or lack thereof does not affect the marriage contract.[15]
From here, the legislator allowing the mature woman to initiate her marriage does not apply to the minor woman who has been granted judicial authorization to marry. Does the guardian have the right to force her to accept someone she does not agree with?
The family legislator has allowed the minor woman who has not reached the age of 19 to marry before that age for reasons dictated by the girl’s best interests, as outlined in Article 7 of the Family Law, which says: “The judge may authorize marriage before that age for the sake of necessity or urgency, provided that the parties are proven capable of marriage...”
Yet, the legislator in this case has made her marriage conditional firstly on judicial authorization, which is obtained by the guardian submitting a request to the judge to obtain it. Secondly, it is stipulated that her guardian is the one who oversees her marriage, as stated in Article 11/2 of the Family Law: “Without prejudice to the provisions of Article 7 of this law, the guardians undertake the marriage of minors, who are their fathers, close relatives, or the judge for those who have no guardian”.
The Algerian legislator has maintained guardianship as a condition for concluding a marriage contract for minors, unlike for adult women. This is because minors do not possess full autonomy in deciding to marry,[16] and the guardian is responsible for protecting them from being deceived or coerced by a man they intend to marry. However, the Algerian legislator did not give the guardian absolute authority to conclude a marriage contract for the minor, Article 13 of the Family Law states:[17] “The guardian, whether a father or another, may not force the minor under his guardianship to marry, nor may he marry her without her consent.” Thus, Algerian law grants the guardian, in the case of minors, the right to choose, shifting from a position of coercion to one of consent. Therefore, the guardian cannot compel the minor under their guardianship to marry someone she does not wish to marry. This ensures that the minor is not forced or coerced into marriage by her guardian and that her marriage contract is based on her own will and desires.[18]
1.2. The women’s right to stipulate conditions in marriage contract
The issue of stipulation is one of the most important rights provided by the Algerian legislator for the benefit of the spouses, avoiding marital problems in the future and establishing understanding. In fact, no explicit provision in international agreements speaks directly to the right of spouses to set conditions when concluding a marriage contract. Referring to Article 19 regarding stipulation in the marriage contract, we find that the Algerian legislator has allowed for stipulation in the marriage contract or a subsequent official contract. Additionally, two fundamental conditions were specified, particularly the condition of monogamy and the condition of the woman not working.
If we compare this text with its predecessor in the law before the amendment, where the legislator did not specify the important conditions and left them general by stating that the spouses can stipulate in the marriage contract all conditions they see fit as long as they do not conflict with this law, it can be implicitly understood that the legislator mentioned the condition of women’s employment influenced by Article 11 of the Convention on the Elimination of All Forms of Discrimination Against Women, which states: “States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment to ensure, based on equality between men and women, the same rights, in particular the right to work as an inalienable right of all human beings”.
This amendment was made to promote family unity and harmony and to preserve society in line with all decisions, declarations, agreements, and recommendations issued by the United Nations and specialized agencies, particularly in compliance with the Convention on the Elimination of All Forms of Discrimination Against Women.[19]
2. The Impact of the CEDAW Convention on the Evolution of Women’s Status in Matters of Marital Dissolution
The family legislator has granted women the right to dissolve the marital bond through divorce and khula, influenced by the Convention on the Elimination of All Forms of Discrimination Against Women, which considers equality between women and men as the general principle governing all its provisions. Consequently, Algerian familylawrecognizes a woman’s right to divorce and khulaon par with the man’s right to dissolve the marital bond. Not stoppingthere, the legislator also added another right for women, whichis the right to guardianship over herchildrenwho are underhercustody.
2.1. Enshrinement of the principle of equality for women in the rights of divorce and khula
The Algerian legislator granted the spouse the right to request divorce at any time he wishes without restricting his request because marital authority is in his hands. Conversely, the woman was granted the right to dissolve the marital bond by filing for divorce and khula due to the harm inflicted upon her by her spouse, thus embodying the principle of gender equality. To what extent did the legislator equalize them in matters of marital dissolution ?
2.1.1. Divorce as a right for women in dissolving the marital bond
By “divorce” it is meant to terminate the marital relationship by a court ruling based on the wife’s request for a matter stipulated by law and according to Article 53[20] of the old Algerian Family Code. The specified cases include the spouse’s failure to provide for his wife, following a court order mandating it; defects that prevent the marriage’s purpose from being fulfilled; the spouse’s desertion of his wife in bed for a period of four months; a sentence of dishonorable punishment restricting the spouse’s freedom for more than a year; absence for more than a year, in addition to committing an immoral act. Upon amending the Family Law by Order 05/02, the legislator added three other cases: continuous discord between the spouses, violation of agreed-upon conditions in the contract, and violation of the provisions of Article 08 related to polygamy.[21]
The legislator added these three reasons because they were influenced by the text of Article 16 of the Convention on the Elimination of All Forms of Discrimination against Women, which states that women should have the same rights as men regarding the dissolution of marriage contracts. In line with this article and harmony with the Algerian Family Code, the Algerian legislator amended the provisions allowing women the right to dissolve the marital bond by expanding the grounds for divorce to enable women to alleviate harm inflicted upon them.[22]
2.1.2. The woman’s right to khula embodies the principle of gender equality
Article 54[23] of the Family Law states: “The wife may, without the spouse’s consent, initiate judicial separation in exchange for financial compensation.
If the spouses do not agree on the financial compensation for khula, the judge shall rule based on not exceeding the value of customary dowry at the time of the ruling.”
Thus, when amending this article, the legislator added the phrase “without the consent of her spouse,” meaning that the wife has the right to initiate khula without her spouse’s consent and has complete freedom to do so without any reason. Previously, obtaining the s
Legal Challenges through the Theory of Harmony of Labor and Capital Interests
Full text linkThis article explores the relationship between labor and capital interests through the lens of Frederick Winslow Taylor’s scientific management theory and Georgian legal frameworks. It examines how harmonizing these interests can address organizational conflicts and enhance labor efficiency and capital growth. The concept of “interest” plays a critical role in this analysis. In a broader sense, interest reflects an individual’s motivation and engagement with various subjects, shaped by their legal, social and economic context. Interest pertains to production relationships and the distribution of resources, influencing how labor and capital interact within a corporate setting. Optimizing work processes can align employee and employer goals, fostering a more equitable distribution of wealth. The analysis highlights the role of interest in legal contexts and the importance of compliance in managing conflicts. Organizations can improve governance and achieve a balanced, productive work environment by integrating scientific management with fiduciary duties and ethical practices.
Keywords: Interest, harmony, conflict, corporate law, cabor, fiduciary duty, director.
“All we want is to see wealth spread among the laboring classes“
Napoleon
Introduction
Cooperation between employee and employer is vital; in this process management takes an important role. The best management might be described as a true science; therefore, scientific management encourages the principle of spreading wealth among the laboring classes. However, before discussing the issues, we should define the word interest, which may be crucial in addressing the matter.
1. The Concept of “Interest”
Interest is the desire for an object\u27s perception and cognition (Subject, Event, Action). Interest is attributed to the class of intellectual feelings. The interests of their social circle significantly determine the content of an individual\u27s interests. Strong and deep interest often defines an individual\u27s motivation for action. Interest is generally considered regarding direction (i.e., content), volume, intensity, and stability. The content of interests represents the category of objects towards which interest is directed. High-intensity interest may lead to a strong will to achieve the relevant goal; stability is often associated with the intensity of interest but not necessarily. A person with a certain temperament may quickly lose intense interest, while someone with the relatively weaker intensity of interest may retain it throughout their lifetime.[1] Hence, it may be said that you are defined by what you are interested in.
Besides, interest also has its economic perspectives. From an economic standpoint, interest is an objective economic category and a crucial form of manifesting production relationships. As a motivating force for social subjects, it reflects the state of workers within the production system of society, the connection between their material needs, and their economic activities. The essential aspect of this concept is that it is based on material needs and reflects the specific production relationships of each society. It is a system of interests encompassing the interests of societies, classes, groups, and individual interrelationships. It is a general economic category characteristic of all economic formations of society,[2] and it also has an indirect but close connection to labor and corporate legal systems.
2. Profit-making and Legal Frameworks in Georgian Entrepreneurship
According to the Georgian Law on Entrepreneurs, entrepreneurial activity is defined as lawful, independent, organized, and repetitive conduct aimed at generating profit.[3] This implies that profit-making is the primary objective of establishing a legal entity. However, how can it be achieved? Of course, many mechanisms may exist, for instance, individuals with executive and representative authority, such as directors, company partners, or supervisory boards, whose decisions are crucial for achieving corporate profits. Still, ordinary workers should also play an essential role in this procedure. Indeed, the Georgian Law on Entrepreneurs does not directly address ordinary employees’ rights to participate in a corporation’s everyday business decisions, but laborers’ rights are guaranteed through the Labor Code of Georgia. In this context, one of our goals is to highlight the strong connection between these two legal acts.
The connection between the aforementioned legal acts underlines the relevance of the Theory of Harmony of Labor and Capital Interests. This theory may encounter legal challenges that need to be clarified in the context of modern society. Both Labor Code of Georgia and the Law of Entrepreneurs as a new legal act in the Georgian legal system should address specific legal issues effectively. However, the law might lead to a range of other effects, both positive and negative, that were not initially apparent. Therefore, we must look beyond the surface to fully understand the broader impact of any legal measure.
3. The Theory of Harmony between Labor and Capital Interest
Frédéric Bastiat, a French economist, writer, and a defender of free markets, proposed the Theory of Harmony of Labor and Capital. Frédéric Bastiat suggested that the interests of labor (employees) and capital (employers or capital holders) can be harmonized to establish a collaborative and mutually advantageous relationship. According to this perspective, when labor and capital align their goals and efforts, they can enhance productivity and profitability for the corporation. This improved economic performance that can be equitably distributed, with benefits manifested through increased wages, improved working conditions for employees, and elevated returns on investment for capital holders. This alignment fosters a balanced and effective partnership between labor and capital within a legal framework that promotes shared benefits and cooperation.[4] The theory posits that labor and capital are not inherently in conflict. Rather, their interests can be harmonized through mechanisms such as profit-sharing arrangements, employee stock ownership plans, and participatory management practices. These strategies provide workers with a vested interest in the enterprise’s success, thereby aligning their goals with those of capital holders and fostering a cooperative relationship. This alignment can contribute to a more integrated and mutually beneficial business environment, where both labor and capital benefit from the overall success and profitability of the organization.[5]
In his essay “That Which Is Seen and That Which Is Not Seen,” Frédéric Bastiat presents the “broken window fallacy” as a simple and prominent example. According to this case, the shopkeeper’s careless son broke a pane of glass when he left it open. But the question arises: “Everybody must live, and what would become of glaziers if panes of glass were never broken?”.[6] Spending money by the shopkeeper on the broken window despite unhappiness illustrates regulation of the great part of economic institutions.[7] Cost for repairing the damaged window is the encouragement of trade and it might be granted, however, Bastiat adds that shopkeeper instead the broken window could spend money on another need, for example, he could have replaced his old clothes instead.[8] And sure, money circulation and the encouragement of industry, in general, is provided by hiring the glazier and paying him money for the services provided, but for the glazier’s trade “destruction is not profit”.[9] Frédéric Bastiat observes that much more significant is what is not seen. For more clarity, he states that if the shopkeeper had not had a window to replace, he would, perhaps, have replaced his old shoes.[10] In point of Frédéric Bastiat’s view for money circulation, for industrialization and encouragement it does not matter for what the money will be spent for, but it should be understood that “neither industry in general, nor the total of national labor, is affected, whether windows are broken or not”.[11] The shopkeeper instead of broken window, might have spent the money for other needs too. The saying “What would become of the glaziers if nobody ever broke windows?” is a rhetorical question that highlights a flawed way of thinking. Breaking windows might be good for glaziers because it gives them work; however, this perspective ignores that resources spent on repairing windows could have been used for something more productive or beneficial, leading to a net loss for society.
In essence, Frédéric Bastiat’s saying challenges the idea that destruction or harm can be economically beneficial just because it creates work or stimulates certain industries. This concept underscores the notion that harmonizing the interests of labor and capital can yield substantial, albeit less immediately visible, benefits essential for a society’s sustained economic well-being. By recognizing the direct and indirect effects of economic decisions, legal frameworks can better support practices promoting long-term economic health and equitable benefit distribution.
The Evolution of Labor Rights
Due to the idea of protecting laborers’ rights, Bastiat’s views were shared by the Georgian public figure, journalist, politician, lawyer, and writer Ilia Chavchavadze. In 1863, he published Bastiat’s work, The Physiology of Plunder, in issue No. 8 of the journal Sakartvelos Moambe.[12] The Physiology of Plunder exposes the mechanisms through which wealth is unfairly redistributed from individuals to others, especially impacting laborers.
According to Bastiat’s work, wealth is not merely the affluence of two individuals; it is contentment, well-being, security, independence, and the opportunity to gain an education.[13] In opposition to all these benefits, war, slavery, and monopoly are cited,[14] because war destroys the sustenance, slavery nullifies talent and monopoly transfers wealth from one person to another.[15] However, there comes a time when the loss of wealth reaches a point where even the plunder feels that if he had acted honestly, he would have lost less.[16] For example, forcible plunder involves waiting until a person has created something, then using violence to take it away from them,[17] but the Commandment says: “Thou shalt not steal”.[18] Forcible plunder can also occur in a different way. Instead of waiting for someone to produce something and then taking it from them, the plunderer takes control of the person, stripping them of their freedom and forcing them to work. Rather than offering a trade of services, the plunderer says: “You do all the work, and I take all the benefits.” This is essentially slavery, which always involves the abuse of power.[19] In contemporary times, slavery has persisted up to the present day without causing plantation owners much moral discomfort[20] and how could it be otherwise when it is well established that even Aristotle was unable to conceive of a society that could function without the institution of slavery.[21]
Even in modern, developed legal systems, labor rights face many obstacles, highlighting their relevance due to their high impact on our everyday lives. For example, what promoted the Georgian Labor Code to establish in the legal framework an 8-hour working day for laborers?[22] This is not solely due to the imitation of developed legal systems of different countries. One of the main reasons was the international good practice of successful corporations’ corporate governance policies. Thus, Henry Ford, the founder of the Ford Motor Company, played a pivotal role in adopting the 8-hour workday. On January 5, 1914, Ford made a groundbreaking decision that changed labor practices. He reduced the working hours for his employees from 9 to 8 hours per day while also doubling their wages to $5 a day.[23] Despite this unprecedented decision being aimed at increasing productivity and reducing employee turnover. Henry Ford’s introduction of the 8-hour workday represented a significant milestone in labor practices in the United States and internationally. This innovative approach established a crucial precedent for other organizations, significantly advancing the objectives of the broader labor movement. Ford’s successful implementation of the 8-hour workday facilitated its adoption across diverse industries and played a pivotal role in shaping subsequent legislative measures that formalized labor reforms. This paradigm shifts not only enhanced working conditions but also contributed to the institutionalization of fair labor standards.[24]
4. Harmonizing Labor and Capital Interests by Using Fiduciary Duties, Scientific Management and Corporate Governance
Fair labor standards and gaining profits for corporations have a crucial connection. According to the Georgian Law on Entrepreneurs, the only individual who makes decisions, controls procedures and defines labor policy in the corporation is the executive and representative authority of the corporation, known as the director or manager in many legal systems. He or she is the stone corner in the relationship with laborers and makes decisions regarding their dismissal, incentives, etc. However, the aforementioned legal act does not directly address this procedure, which encourages us to consider which principle we should adhere to in addressing this issue.
In resolving this matter, fiduciary duties may provide guidance, which are defined as individuals holding executive and representative authority. Fiduciary relationships are trust-based connections between a corporation and its governing body members, such as directors. These relationships originated from English law, dating back to 1742, and have since permeated American legislation.[25]
According to the Georgian Law on Entrepreneurs, fiduciary duties are encapsulated in the general part of the law, specifically Article 50 (1). This article stipulates that directors must fulfill three essential conditions to be exonerated from liability: first, they must act in good faith while making decisions (duty of good faith); second, they must exercise due care towards the enterprise, which implies acting with the diligence and prudence that an ordinarily prudent person would exercise under similar circumstances (duty of care); and third, they must act with the belief that their actions are in the best economic interests of the corporation (duty of loyalty).[26]
These obligations could collectively be known as the “triad”, comprising the duties of good faith, care, and loyalty obligations.
It should be noted that while these duties are conditionally applied in corporate law, they are closely interrelated.[27] However, it is worth emphasizing that Article 50 of the Law on Entrepreneurs, which consolidated these duties, titles the section only as “Duty of Care.” This section focuses on the obligation to exercise reasonable care, skill, and diligence. As a result, the law prioritizes the duty of care, whereas the duty of loyalty is not explicitly defined within this legal framework.
An exception is found in Article 53 of the new edition of the Law on Entrepreneurs, which addresses the prohibition of competition. This provision contains elements of the duty of loyalty but represents only a specific manifestation of this obligation.[28] Therefore, under Georgian law, the so-called “duty of loyalty”, in essence, relates to the prohibition of competition within the corporation.[29]
Given that the new edition of the Law on Entrepreneurs is based on European directives, the absence of a direct definition of the duty of loyalty in Georgian law may be explained by the fact that, for example, in German law, the legal regulation of the duty of loyalty is less developed in both judicial and academic contexts than in American law.[30] This is because the doctrine concerning the exploitation of corporate opportunities in German law was developed much later than in American law.[31]
Nevertheless, it must be stated that the duty of loyalty requires directors to prioritize the corporation’s interests over any personal ones.[32] It should be used to enhance the harmony of interests and safeguard against conflicts of interest.
Before delving further into the duty of loyalty, it is crucial to distinguish it from the duty of care, as determining which duty a director has violated is practically important for establishing liability. First and foremost, it should be noted that the business judgment rule, as defined in Article 52 of the Law on Entrepreneurs, does not apply to the duty of loyalty[33]. The legislature determined that applying this rule to the duty of loyalty would lead to many ambiguities and complicate the issue of holding directors accountable, which is already a complex matter.
The existence of the duty of loyalty is recognized in Georgian legal literature, but distinguishing it from the duty of care is not as simple as it may initially appear. The complexity arises primarily from the fact that the duty of loyalty is not directly defined by legislation.
Consequently, it should be noted that the duty of care establishes an objective procedural standard for performing duties by the governing person when acting in the company’s interests. In contrast, the duty of loyalty pertains to the motives behind the actions of the governing person and aims to prevent actions contrary to the company’s interests. Thus, a presumption of breach is applied in cases of breach of the duty of loyalty. Conversely, in cases of breach of the duty of care, the presumption is the opposite, derived from the business judgment rule.[34]
As for the prohibition of competition, as already noted, it is a specific manifestation of the duty of loyalty and is regulated by Georgian legislation. The law imposes an obligation on directors to refrain from competing activities during their tenure and, possibly, after their departure if stipulated in their employment contract. This condition arises from the principle that directors should dedicate all their skills and energy to the company. However, the law only addresses the restriction of employment in competitive enterprises.
Thus, schematically, the duty of loyalty encompasses essential principles for regulating and preventing conflicts of interest, such as self-dealing transactions, related-party transactions, the exploitation of corporate opportunities, insider trading, and relationships revealed within the scope of conflicts of interest.[35] Generally, the duty of loyalty is a fundamental part of fiduciary duties that requires directors of a corporation to act in the best interests of the corporation.[36] It is also true that, traditionally, this duty is understood to protect the corporation and its shareholders itself, ensuring that nobody could put personal interests above those of the company, but the idea of extending this duty to consider the interests of labor and capital interests could theoretically be framed as part of a broader corporate governance model in corporations. Corporate Social Responsibility (CSR) principles serve this purpose exactly. CSR principles encompass: 1. Accountability; 2. Transparency; 3. Ethical behavior; 4. Respect for stakeholder interests; 5. Respect for the rule of law; 6. Respect for the international norms of behavior; 7. Respect for human rights.
The European Union has been instrumental in influencing and advancing CSR practices through its directives and policies. The EU’s stance on CSR is based on the belief that businesses should voluntarily incorporate social, environmental, and economic considerations into their operations and their engagements with stakeholders.[37] The Non-Financial Reporting Directive (2014/95/EU)[38] and the EU Directive on Corporate Sustainability Due Diligence (proposed in 2022)[39] are prime examples of encouraging corporations to act in a socially responsible manner, which often includes fair treatment of employees.[40] If the duty of loyalty is understood in a wider, more socially responsible context, it could be leveraged to support policies and decisions that align the interests of both labor and capital, including initiatives like profit-sharing schemes, involving employees in decision-making processes, or investing in their well-being.[41]
5. “Taylorism” as the Principle of Scientific Management
Therefore, what should prevent a corporation, under an appropriate management system, from fostering harmony between labor and capital interests? We can refer to Frederich Winslow Taylor, known as one of the first management consultants, in his work The Principles of Scientific Management, which provides significant insights into this matter and attempts to answer the question - how can harmony between labor and capital interests be achieved in practice?
After defining the liabilities of managers, it is essential to reveal the principal objective of management in practice, which should be to secure the maximum prosperity for the employer in conjunction with ensuring the highest level of prosperity for each employee.[42] This is because the duty of loyalty toward corporate development should necessarily result in this outcome as well.
Prosperity should be described in its broad sense, meaning not only large dividends for the company or owner but also the development process of every branch or division of the business to its state of excellence by matching employees with work suited to their natural abilities.[43] According to Taylor’s perspective throughout the industrial world, a large part of the organization of employers, as well as employees, is oriented towards conflict rather than harmony, and perhaps the majority on either side do not believe that their i
Is Arbitration Fair? Perspectives from the USA and Uzbekistan
Full text linkThis research examines the arbitration law of the USA and Uzbekistan. It will start with the analysis of the US arbitration law examining issues of policy favoring arbitration, preemption, employment disputes, class arbitration, and punitive damages, as well as measures that have been taken to limit consumer and employment arbitration, including Arbitration Fairness Act (2018) and the Forced Arbitration Injustice Repeal Act (2021) introduced in the Senate as part of the legislative efforts to curtail arbitration use albeit unsuccessfully. It will be argued that the Federal Arbitration Act (FAA) enacted in 1925 was not initially intended to cover consumer and employment disputes, which has evolved out of court interpretation of the FAA led by the US Supreme Court. It also reviews the empirical studies conducted on the use of arbitration that reveal very interesting findings. The second part of the work is devoted to examining Uzbekistan\u27s arbitration law and practice, which was adopted recently compared to the US. Uzbek arbitration law expressly excludes labor disputes, and consumer disputes are subject to court jurisdiction according to the law on consumer protection. In the end, economic court practice on the challenged arbitration decisions is considered. Finally, it will conclude by drawing some inferences from both jurisdictions.
Keywords: arbitration, consumer disputes, employment disputes, class arbitration.
Introduction
The use of arbitration is expanding in many jurisdictions, including in Uzbekistan. The law and practice of arbitration in developed jurisdictions such as the US is a valuable source of experience for Uzbekistan. For this purpose, the present research is organized as follows. It consists of two parts. The first part examines the US arbitration law and practice and draws conclusions based on the research findings. The second part will examine the law and practice of domestic arbitration[1] in Uzbekistan, comparing them with that of the US. It will conclude by drawing conclusions based on the research findings.
1. Arbitration in the USA
1.1.Overview
Arbitration in the US has made a remarkable transformation. It has not been recognized by courts in the early stages of its development. Courts were not supportive of enforcing the agreement of parties to arbitrate.[2] Now, the scope of arbitration has extended to encompass consumer and employment cases. US authors are puzzled whether this kind of trend was initially intended by the Federal Arbitration Act of 1925 (FAA) in the first place. The current state of US arbitration law has evolved out of the application and interpretation of the FAA by the judiciary led by the US Supreme Court.
1.2. Policy Favoring Arbitration
The US Supreme Court has been active in promoting policy favoring arbitration nationwide. In Southland Corp. v. Keating, it stated: “In enacting § 2 of the federal Act, Congress declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.”[3] Section 2 of the FAA reads as follows:
A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.[4]
In Hill v. Gateway 2000, Inc. US Court of Appeals for the Seventh Circuit compelled the customer who had purchased a computer through a telephone order and brought action against the manufacturer. The manufacturer sought enforcement of the arbitration clause, which had been included in terms sent to the buyer in a box in which the computer was shipped. The Court held that terms sent in the box, which stated that they governed sale unless the computer was returned within 30 days, were binding on the buyer, who did not return the computer.[5]
The customer contended that the arbitration clause did not stand out. The Court stated:
Yet an agreement to arbitrate must be enforced save upon such grounds as exist at law or in equity for the revocation of any contract… [P]rovision of the Federal Arbitration Act is inconsistent with any requirement that an arbitration clause be prominent. A contract need not be read to be effective; people who accept take the risk that the unread terms may, in retrospect, prove unwelcome.[6]
Thus, consumers should be vigilant in order not to be trapped in such kind of situations. Frequently, such arbitration clauses in contracts are in small print. And it takes real effort for an ordinary consumer to decipher. But do they have any other options other than acceptance? And the answer is NO in many situations.
Some states have tried to alleviate difficulties associated with consumer arbitrations. For example, section 1284.3 (b) (1) of the Code of Civil Procedure of California provides:
All fees and costs charged to or assessed upon a consumer party by a private arbitration company in a consumer arbitration, exclusive of arbitrator fees, shall be waived for an indigent consumer. For this section, “indigent consumer” means a person having a gross monthly income that is less than 300 percent of the federal poverty guidelines. Nothing in this section shall affect the ability of a private arbitration company to shift fees that would otherwise be charged or assessed upon a consumer party to a nonconsumer party.[7]
In Gutierrez v. Autowest, Inc., lessees of an automobile who brought an action against the lessor under state consumer protection statutes providing nonwaivable rights were entitled to challenge a pre-dispute arbitration clause as unconscionable on the basis that the fees required to initiate the arbitration process were unaffordable; the agreement failed to provide the consumers with an effective opportunity to seek a fee waiver, and an agreement was implied in the arbitration clause that unaffordable fees would not be allocated to the consumer at any point in the arbitration process.[8]
1.3. Preemption
It is an established rule that the FAA preempts a state law. In Southland Corp. v. Keating, mentioned above, individual actions and a class action by convenience store franchisees were brought against the franchisor alleging, among other things, fraud, breach of contract, and violation of disclosure requirements of the California Franchise Investment Law. The Superior Court, Alameda County, ordered arbitration of all claims except those based on the statute. The California Court of Appeal reversed as regards the statutory claim. The California Supreme Court held that statutory claims were not arbitrable.[9]
The California Franchise Investment Law provides: “Any condition, stipulation or provision purporting to bind any person acquiring any franchise to waive compliance with any provision of this law or any rule or order hereunder is void.”[10]
The Supreme Court held:
The California Supreme Court interpreted this statute to require judicial consideration of claims brought under the State statute and accordingly refused to enforce the parties’ contract to arbitrate such claims. So interpreted, the California Franchise Investment Law directly conflicts with § 2 of the Federal Arbitration Act and violates the Supremacy Clause.[11]
Justice Stevens, in a dissenting opinion, stated: “Given the importance to the State of franchise relationships, the relative disparity in the bargaining positions between the franchisor and the franchisee, and the remedial purposes of the California Act, I believe this declaration of State policy is entitled to respect.”[12]
As D. Schwartz argues: “If original congressional intent is the touchstone of a statute’s preemptive effect, Southland was plainly wrong. The historical record clearly shows that the FAA was intended to be a procedural statute for the federal courts, that it was not intended to preempt state law, and that it was designed to reverse the “ouster doctrine” but otherwise preserve all applicable state contract law.”[13] He further contends:
The preemptive effect given to the FAA as a result of Southland provides a prime example of the intrusion on state sovereignty resulting from preemption. It has done considerable violence to the notion of the states as “laboratories for experimentation” by shutting down state experiments in the regulation of arbitration agreements and inhibiting state case law development in this field.[14]
Weston, commenting in general about preemption, argues: “Given the preemptive effect accorded to the FAA, the ability of the states to enact protective legislation to ensure fairness in arbitration or access to the courts has been significantly, and unduly, limited.”[15]
1.4. Measures to Limit Arbitration
Attempts are being made to curtail the use of arbitration. A clear example of this is the Motor Vehicle Franchise Contract Arbitration Fairness Act (2002), which requires consent in writing from parties to a motor vehicle franchise contract. Section 1226 (a) (2) provides:
Notwithstanding any other provision of law, whenever a motor vehicle franchise contract provides for the use of arbitration to resolve a controversy arising out of or relating to such contract, arbitration may be used to settle such controversy only if, after such controversy arises, all parties to such controversy consent in writing to use arbitration to settle such controversy.[16]
As C. Chiappa and D. Stoelting explain, this Act was “designed to redress an alleged disparity in bargaining power between motor vehicle dealers and manufacturers, the Act makes pre-dispute arbitration clauses in motor vehicle franchise contracts unenforceable under the FAA unless both parties consent after the dispute arises.”[17] They make a forward-looking conclusion:
By creating an exemption for motor vehicle dealers, Congress has raised expectations among other groups that seek similar treatment. If motor vehicle dealers merit protection from mandatory arbitration, why not contracts involving consumers and employees that may well result from disparate bargaining power? Congress is now likely to come under pressure to create more exemptions from the FAA and to curtail long-standing U.S. Supreme Court precedent that broadly construes the FAA.[18]
In 2010 the Congress adopted the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), section 921(f) of which entitles the Securities and Exchange Commission to restrict mandatory pre-dispute arbitration by providing the following:
The Commission, by rule, may prohibit or impose conditions or limitations on the use of agreements that require customers or clients of any investment adviser to arbitrate any future dispute between them arising under the Federal securities laws, the rules and regulations thereunder, or the rules of a self-regulatory organization if it finds that such prohibition, imposition of conditions, or limitations are in the public interest and for the protection of investors.
Section 1028 (a) of the Dodd-Frank Act provides that the Bureau of Consumer Financial Protection (Bureau) shall conduct a study of and shall provide a report to Congress concerning the use of agreements providing for arbitration of any future dispute between covered persons and consumers in connection with the offering or providing of consumer financial products or services. And Section 1028 (b) provides further authority to the Bureau:
The Bureau, by regulation, may prohibit or impose conditions or limitations on the use of an agreement between a covered person and a consumer for a consumer financial product or service providing for arbitration of any future dispute between the parties if the Bureau finds that such a prohibition or imposition of conditions or limitations is in the public interest and for the protection of consumers.
As I. Szalai, commenting on the Dodd-Frank Act, argues: “Congress has, in effect, delegated authority to government agencies to amend the FAA through rules and regulations. When these government agencies in the near future consider adopting regulations restricting the use of arbitration agreements, there will likely be much debate and lobbying about whether the use of arbitration agreements should be limited.”[19]
In accordance with section 1028(a) of the Dodd-Frank Act, the Bureau in March 2015 announced its Arbitration Study Report to Congress.[20] According to the study, more than 75 percent of consumers surveyed in the credit card market did not know whether they were subject to an arbitration clause in their contract. Fewer than 7 percent of those consumers covered by arbitration clauses realized that the clauses restricted their ability to sue in court.[21]
In October 2015, the Bureau announced the Proposal to ban arbitration clauses in consumer credit contracts. Director of the Bureau Richard Cordray said: “Companies are using the arbitration clause as a free pass to sidestep the courts and avoid accountability for wrongdoing. The proposals under consideration would ban arbitration clauses that block group lawsuits so that consumers can take companies to court to seek the relief they deserve.”[22]
The goal of the proposed rules can be summarized as follows:
A day in court for consumers: The proposals under consideration would give consumers their day in court to hold companies accountable for wrongdoing. Often, the harm to an individual consumer may be too small to make it practical to pursue litigation, even where the overall harm to consumers is significant. Previous CFPB survey results reported that only around 2 percent of consumers surveyed would consult an attorney to pursue an individual lawsuit as a means of resolving a small-dollar dispute. In cases involving small injuries of anything less than a few thousand dollars, it can be difficult for a consumer to find a lawyer to handle their case. Congress and the courts developed class litigation procedures in part to address concerns like these. With group lawsuits, consumers have opportunities to obtain relief they otherwise might not get.
Deterrent effect: The proposals under consideration would incentivize companies to comply with the law to avoid lawsuits. Arbitration clauses enable companies to avoid being held accountable for their conduct; that makes companies more likely to engage in conduct that could violate consumer protection laws or their contracts with customers. When companies can be called to account for their misconduct, public attention on the cases can affect or influence their individual business practices and the business practices of other companies more broadly.
Increased transparency: The proposals under consideration would make the individual arbitration process more transparent by requiring companies that use arbitration clauses to submit the claims filed and awards issued in arbitration to the CFPB. This would enable the CFPB to better understand and monitor arbitration cases. The proposal under consideration to publish the claims filed and awards issued on the CFPB’s website would further increase transparency.[23]
The Arbitration Fairness Act was introduced in the Senate on 22 March 2018 also stresses the initial purpose of the FAA and developments in arbitration law by providing:
(1) The Federal Arbitration Act (now enacted as Chapter 1 of Title 9 of the United States Code) was intended to apply to disputes between commercial entities of generally similar sophistication and bargaining power.
(2) A series of decisions by the Supreme Court of the United States have interpreted the Act so that it now extends to consumer disputes and employment disputes, contrary to the intent of Congress.
(3) Most consumers and employees have little or no meaningful choice whether to submit their claims to arbitration. Often, consumers and employees are not even aware that they have given up their rights.
(4) Mandatory arbitration undermines the development of public law because there is inadequate transparency and inadequate judicial review of arbitrators’ decisions.
(5) Arbitration can be an acceptable alternative when consent to the arbitration is truly voluntary and occurs after the dispute arises.[24]
The Forced Arbitration Injustice Repeal Act was introduced in the Senate on 1 March 2021. According to Sec. 2, the purposes of this Act are to:
(1) prohibit pre-dispute arbitration agreements that force arbitration of future employment, consumer, antitrust, or civil rights disputes; and
(2) prohibit agreements and practices that interfere with the right of individuals, workers, and small businesses to participate in a joint, class, or collective action related to an employment, consumer, antitrust, or civil rights dispute.[25]
1.5. Employment Disputes
In Circuit City Stores, Inc. v. Adams, the employer brought an action under the FAA to enjoin the employee’s state court employment discrimination action and to compel arbitration. The United States District Court for the Northern District of California ordered arbitration, and the employee appealed. The United States Court of Appeals for the Ninth Circuit reversed, holding that all employment contracts were beyond FAA’s reach. Certiorari was granted. The Supreme Court held that only employment contracts of transportation workers were exempted from the FAA.[26] Provision of the FAA excluding from its reach “contracts of employment of seamen, railroad employees, or any other class of workers engaged in ... interstate commerce” did not exclude all employment contracts, but rather exempted from the FAA only contracts of employment of transportation workers, and thus the FAA preempted the state employment law that restricted ability of non-transportation employees and employers to enter into arbitration agreement.[27]
As M. Weston points out: “In Circuit City Stores, Inc. v. Adams, the Court effectively shut down state regulatory efforts to restrict the arbitration of employment cases by reading, despite clear legislative intent otherwise, that the express exemption in section 1 of the FAA, which excludes “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce,” applies only to transportation employees.”[28]
1.6. Class Arbitration
In consumer contracts, companies tend to include a provision that excludes class arbitration. In AT&T Mobility LLC v. Concepcion, customers brought a class action against the telephone company, alleging that the company’s offer of a free phone to anyone who signed up for its cellphone service was fraudulent to the extent that the company charged the customer sales tax on the retail value of the free phone. The United States District Court for the Southern District of California denied the company’s motion to compel arbitration. Company appealed. The United States Court of Appeals for the Ninth Circuit affirmed. Certiorari was granted, and the Supreme Court held that the Federal Arbitration Act preempts California’s judicial rule regarding the unconscionability of class arbitration waivers in consumer contracts.[29]
As H. Aragaki observes: “State courts have set precedents, and state legislatures have passed countless measures aimed at staving off what appears to be the relentless colonization of procedure by contract. But the force of these responses is increasingly doubtful after Concepcion.”[30]
1.7. Punitive Damages
In Mastrobuono v. Shearson Lehman Hutton, Inc., petitioners filed an action in the Federal District Court, alleging that their securities trading account had been mishandled by respondent brokers. An arbitration panel, convened under the arbitration provision in the parties’ standard-form contract and under the FAA, awarded petitioners punitive damages and other relief. The District Court and the Court of Appeals disallowed the punitive damages award because the contract’s choice-of-law provision specifies that “the laws of the State of New York” should govern, but New York law allows only courts, not arbitrators, to award punitive damages.[31] Certiorari was granted. The Supreme Court held that the contract between securities brokerage firms and customers permitted the arbitration panel to award punitive damages to customers.[32]
The Supreme Court reiterated the policy favoring arbitration and held that “if contracting parties agree to include claims for punitive damages within the issues to be arbitrated, the FAA ensures that their agreement will be enforced according to its terms even if a rule of state law would otherwise exclude such claims from arbitration.”[33]
Micheletti, commenting on Mastrobuono, concludes:
While the objective application of Mastrobuono has the theoretical effect of undermining the FAA federal policy of allowing parties’ intentions to control, there are some positive practical consequences. The objective application of Mastrobuono in such cases protects parties of unequal bargaining power from unfairly and unknowingly contracting away their arbitral rights. Additionally, it will promote contractual certainty by requiring parties to clearly articulate their intentions in contract provisions.[34]
So, companies can include a waiver of awarding punitive damages in their standard contracts, and consumers will not have a clue that they are giving away their rights again. And following Mastrobuono courts will enforce such kind of arrangement, which is convenient