Access to Justice in Eastern Europe

Background: On 14 March 2024, the Lithuanian Constitutional Court issued a conclusion on the constitutionality of certain provisions of the Istanbul Convention, becoming the fourth constitutional court in Eastern and Central Europe to rule on this issue. Thus, this conclusion reflects a broader trend in the region. This article aims to analyse this conclusion and reveal its similarities and differences with decisions made by other constitutional courts in the region on the same matter. To achieve this goal, the following objectives are addressed: 1) to reveal the context in which the Lithuanian Parliament submitted an inquiry to the Constitutional Court on the constitutionality of the Convention and the issues raised in this inquiry; 2) to analyse the arguments of the Lithuanian Constitutional Court in this conclusion; and 3) to reveal the legal consequences of this conclusion and the possible impact of this conclusion on the ratification of this treaty in Lithuania. These issues are examined in the broader context of the judgments of other constitutional courts in the region on the constitutionality of the Istanbul Convention. Methods: To explore the theoretical and practical dimensions of the issue at hand, this article utilises a variety of methods. The document content analysis method was employed to examine relevant normative and jurisprudential research sources, focusing on identifying key terms and phrases within the text and linking them to existing statements in specialised literature. The paper relied heavily on systemic and logical analysis to examine nearly all issues discussed in the article. Comparative analysis was employed to compare the decisions of the constitutional courts on the constitutionality of the Istanbul Convention of other Eastern and Central European countries and the conclusion on this issue adopted by the Lithuanian Constitutional Court. The linguistic and teleological analysis methods were employed to clarify the content of provisions of the legal acts examined in this article, uncovering the true intentions of the creators of these provisions and the meaning of the concepts within these provisions. Results and conclusions: The article concludes that the Lithuanian Parliament's inquiry to the Lithuanian Constitutional Court regarding the constitutionality of the Istanbul Convention reflects a general trend in Eastern and Central Europe, as the Lithuanian Constitutional Court has been asked to address the constitutionality of essentially the same provisions of the Convention as other constitutional courts of the region. In assessing the constitutionality of the Convention's provisions, the Lithuanian Constitutional Court, like the constitutional courts of Latvia and Moldova, focused on the Convention's objective – eradicating violence against women and domestic violence by promoting gender equality. This approach has led to a similarity in the reasoning of these courts. The Lithuanian Constitutional Court became the third constitutional court in the region, which, like those in Latvia and Moldova, did not find the provisions of the Convention unconstitutional. The conclusion of the Lithuanian Constitutional Court has been met with mixed reactions in society, political, and academic circles; therefore, even after the conclusion regarding the constitutionality of the Istanbul Convention, this international treaty has still not been ratified in Lithuania. Nevertheless, the Constitutional Court is the only institution with the power to assess the compatibility of this international treaty with the constitutional provisions, so Parliament can no longer rely on the argument that this Convention is incompatible with the Constitution.

Dovilė Pūraitė-Andrikienė

CONCLUSION ON THE CONSTITUTIONALITY OF THE ISTANBUL CONVENTION OF THE LITHUANIAN CONSTITUTIONAL COURT: CONTEXT, REASONING, AND LEGAL CONSEQUENCES

立陶宛宪法法院关于伊斯坦布尔公约合宪性的结论：背景、推理与法律后果

Background: The right to self-defence is one of the fundamental principles of international law, explicitly sanctioned by Article 51 of the Charter of the United Nations. However, the practice of this right, especially on anticipatory or preemptive force, continues to be a contentious issue. Thus, it is questionable to what extent and under what circumstances selfdefence can be applied when dealing with non-state actors and potential threats in the future. This paper seeks to address these worrying issues through primary historical references and legal systems focusing on the guidelines of necessity and proportionality measures. Methods: This study systematically analyses case law, international treaties, and the United Nations Charter 51 to explore how self-defence is perceived in different contexts. It also uses a comparative legal research method, informed by the International Court of Justice (ICJ) decision and subsequent literature. Cases like Nicaragua v. United States, the Iranian Oil Platforms case, and those involving Israel, the United States, and the United Kingdom were consulted to understand the issues of necessity, proportionality, and preventive self-defence. By adopting a case analysis method, this research explores the preliminary concept of self-defence in the legal system of public international law regarding the state practice and as interpreted by the International Court of Justice. The choice of examples, such as the conflict in Ukraine and the armed aggression of Russia and Turkey, Syria, and Iraq, was planned and chosen based on their significance in modern international law. Secondary data sourced from scholarly articles and legal publications complemented this study. Results and Conclusions: According to the data, the right to self-defence is the most significant and one of the most contentious issues in international law. For instance, events like the Six-Day War of 1967 demonstrate how states leverage self-defence purposes to carry out military actions. However, findings made by the International Court of Justice in cases such as Nicaragua v. United States emphasise and uphold the principle of proportionality and reasonability in self-defence arguments. Anticipatory self-defence is still debated, with the Caroline case for defining particular conditions under which anticipatory self-defence is permissible. However, preemptive self-defence continues to spark debate in public international law, with considerable theoretical and practical implications. Russia’s invasion of Ukraine and the tensions between Turkey, Syria, and Iraq contribute to the relativity of the issue in today’s politics and law. For example, the Russian-Ukraine War illustrates adjustments that come with embracing old self-defence theories when the global security environment is metamorphosing. It has brought to the foreground issues related to aggression, deterrence, and the legal use of force in dealing with threats that are perceived to be existential. This case allows for consideration of the role played by the ICJ in establishing the parameters of state conduct, as well as an analysis of the realities of legitimate force. Similarly, the conflicts involving Turkey, Syria, and Iraq show there is a modern trend of utilising anticipatory self-defence as a justification for military actions against non-state actors. They are significant in illustrating how states can maintain their security and simultaneously recognise and uphold the sovereignty of other nations. Additionally, the determination by the ICJ of any such claims assists in understanding the evolving legal regime for these processes. The analysis shows that Article 51 outlines the formal possibility of employing force in self-defence, but at the same time, the interpretation of the given article is often questionable. The international community still faces many challenges defining the differences between preemptive and preventive strikes. The proposal is that nations must be careful while employing self-defence and ensure that what they do is reasonable and necessary concerning the threat. In addition, the United Nations Security Council should actively resolve disputes to reduce the risk of the self-defence doctrine's misuse.

Zaid Ali Elgawari

PREEMPTIVE SELF-DEFENCE IN PUBLIC INTERNATIONAL LAW: AN ANALYSIS THROUGH THE LENS OF INTERNATIONAL COURT OF JUSTICE JURISPRUDENCE

国际公法中的预防性自卫：通过国际法院判例法的分析

Background: The role of digital communication means has become significant in our daily lives. These means have become the pulsating heart in achieving instant and rapid communication among people and concluding numerous contracts via the Internet. Therefore, this paper aims to shed light on the concept of electronically concluded contracts, which the Qatari legislator overlooked regulating in Civil Law No. 22 of 2004 and Law by Decree No. 16 of 2010 by issuing the Electronic Transactions and Commerce Law, merely contenting with the provision in Article 4 of this latter law, stating that it is permissible to express offer or acceptance using an electronic means of communication. Regarding the research problem, the term “electronic contract” has become prevalent in many jurisprudential writings, although there is, in fact, no contract concluded entirely electronically; instead, there exists a contract concluded using an electronic means. Consequently, questions have arisen about the nature of the session of this type of contract in which the contracting parties do not convene in one place but synchronise in time. Do we apply the same rules that govern traditional contract sessions, or do we need new legal rules that are compatible with this technological advancement in communication and interaction between contract parties ? This research aims to highlight the problem of not regulating electronic contracts under the Qatari Civil Code. It also aims to propose legal solutions to reorganise these contracts in general, with a focus on the contract session to improve the regulation of all forms of this type of contract. In this regard, the authors attempt to describe the determinants of the electronic contract and explain its privilege. Methods: In this research, the analytical approach is adopted by studying the texts of the articles regulating the contract session in the Qatari Civil Code and those regulating the offer and acceptance using an electronic means in Qatari Decree-Law No. 16 of 2010, which promulgates the Electronic Transactions and Commerce Law. By analysing these legal texts, the research aims to highlight the nature of the legal system for electronic contracts in Qatari legislation, ultimately providing legal protection to remote contracting parties and achieving contractual security. This, in turn, upholds the principles of contractual justice sought by legal systems regardless of their historical sources. Moreover, it serves as one of the most important means to attract investment due to its close association with transactional security and respect for legitimate expectations upon which investors rely in forming the visions they seek to achieve. Results and Conclusions: In this paper, the authors conclude with some of the most important results, including the lack of specialised studies and Qatari judicial applications addressing the problems arising from these contracts. Moreover, the electronic contract scarcely differs in its substantive provisions from the traditional contract except for the electronic means used in its conclusion. Furthermore, there is a clear discrepancy in the electronic methods of offer and acceptance due to the various methods and aspects used.

Mohamed Salem Abou El Farag

Tariq Rashid

Ahmed Qatami

DEVELOPING A LEGAL FRAMEWORK FOR ELECTRONIC CONTRACTS IN THE CONTEXT OF TRADITIONAL CONTRACT THEORY: AN ANALYTICAL STUDY

在传统合同理论背景下发展电子合同的法律框架：一项分析性研究

Background: As digital interactions and transactions grow, people are more inclined to participate if they feel secure and assured of fair procedures. However, online dispute resolution is still rarely used in Ukraine due to a lack of regulations. This research article provides a legal analysis of online dispute resolution (ODR) in Ukraine, concentrating on defining the ODR landscape, as well as on considering its potential in e-commerce and traditional court proceedings. Besides, the article presents a vision and proposals for the future adoption of European laws in Ukraine while discussing the current challenges in the online justice system that hinder its successful implementation. As a result, the article emphasises the need for an adequate legal instrument to regulate ODR in Ukraine, particularly in the context of e-commerce. It highlights the importance of implementing EU legislation, developing ODR platforms and ADR institutions, and ensuring their decisions are binding. It also addresses the challenges related to remote hearings in the judiciary during different circumstances and suggests adopting cloud-based case management to improve efficiency and reduce the risk of document destruction. Methods: The research methodology for this study on online dispute resolution in Ukraine included a comprehensive literature review, a comparative analysis of ODR systems in European countries, and a systems analysis to forecast the future trajectory of ODR in Ukraine. This approach aimed to assess the current state of ODR in Ukraine, identify areas for improvement, and explore potential achievements and challenges in its implementation. Results and conclusions: The article concludes that Ukraine is in the process of establishing a legal framework for online dispute resolution, which is expected to progress further after the war. The implementation of EU legislation and the development of ODR platforms and ADR institutions are crucial, along with ensuring accessibility for all, including vulnerable groups without internet access. Related to online courts, it is necessary to address challenges such as judges' absence during remote hearings. It is also recommended that the process be expedited and the risk of document loss internally in the case management system minimised.

Pavlo Riepin

ONLINE DISPUTE RESOLUTION IN UKRAINE: EXPECTATIONS AND REALITY

乌克兰在线争议解决：期望与现实

Background: In today's modern business and technological landscape, businesses are increasingly inclined to seek alternative methods for resolving disputes rather than rely solely on traditional court procedures. Businesses are also increasingly aware of the significance of resolving conflicts through alternative means and taking proactive measures to avoid litigation. In recent decades, investment arbitration has gained widespread acceptance and has emerged as a preferred mechanism for resolving disputes involving international investors in Western Balkan countries. Some countries demonstrate a favourable inclination towards employing arbitration as a dispute resolution mechanism by enacting legislation that grants investors the right to initiate arbitration proceedings against the state in case of failure. This scientific research objective will be achieved through the reflection of the legislative framework in the matter of investment arbitration as well as the reflection of the flow of foreign investments, analysing and not limited to the treatment of concrete cases of arbitration disputes. Through this approach, we will answer the central question of how much arbitration as an alternative dispute resolution mechanism is a stimulating factor for attracting foreign direct investment or whether multinational companies only use the legislative and incentive favours offered by the Republic of Kosovo and North Macedonia. Methods: The article was conceived based on a modern methodological framework. Within the general methodological framework of scientific research, logical methods play a crucial role in the scientific processing of the research data, drawing conclusions and determining facts through which the truth of the thesis of the work is reached scientifically. In the context of this paper, the method of analysis through which the impact of arbitration as an alternative dispute resolution mechanism in relation to the flow of investments will be analysed is noteworthy. Additionally, methods of abstraction and concretisation will also be used. Abstraction is the basis of analysis, which sometimes represents the separation of parts from the whole subject. Moreover, the comparative method will highlight the diverse normative solutions in national legislation and international legal sources. Results and conclusions: In the article, the authors propose considering the effectiveness of existing provisions and determining whether adjustments or alternative approaches are needed to maximise the benefits of foreign investment while minimising potential risks and uncertainties associated with dispute resolution processes.

Njomëza Zejnullahu

Bashkim Nuredini

THE CHALLENGES OF INVESTMENT ARBITRATION: SUCCESS OR FAILURE? A COMPARATIVE ANALYSIS OF INVESTMENT ARBITRATION IN NORTH MACEDONIA AND KOSOVO

投资仲裁的挑战：成功还是失败？北马其顿与科索沃投资仲裁的比较分析

Background: The rapid digitalisation of copyrighted materials and the creation of new digital products pose significant challenges to copyright law in the era of globalisation. Digitisation has revolutionised access to information by converting it into a digital format, thus making it easier for anyone who surfs the internet to reproduce and share data. However, new technologies have also resulted in illegal activities such as online copyright infringement. That being the case, the development of digital technologies requires new relevant approaches and provisions from the national copyright law of Kazakhstan to handle copyright infringement on the internet. It could be argued that the current legislation cannot handle legal issues related to copyright, especially the responsibility of internet service providers (ISPs) for the violation of the copyright. This article aims to identify shortcomings in the legal regulation of ISPs in the Republic of Kazakhstan and to offer recommendations for improving legislation in this area. The novelty of the paper lies in Kazakhstan’s legislation, lacking regulation on the legal status of ISPs and their role in protecting copyright on the internet. By comparing Kazakh legislative developments with practices in the US, UK, and Ukraine, the paper provides insights into potential reforms for better handling digital copyright infringement. Methods: This paper applies several research methods, including systemic, comparative legal, and historical legal analysis. The primary focus is on examining the legislation and case law of the US, UK and Ukraine regarding copyright issues to enhance Kazakhstan’s existing legislative framework. Results and conclusions: This article argues that national acts of Kazakhstan on copyright were obsolete before the advancement of digital technologies and therefore, need to be updated to keep pace with modern technologies.

Abbreviation	AJEE
Journal Impact	0.64
Quartiles(Global)	LAW(Q2)

Publication Information	Publisher: Access to Justice in Eastern Europe，Publishing cycle: ，Journal Type: journal，Open Access Journals: Yes
Basic data	Year of publication: 2018，Proportion of original research papers: 100.00%，Self Citation Rate:42.90%， Gold OA Rate: 17.22%
Journal Fees	$Details
Average review cycle	网友分享经验：6 Weeks

Access to Justice in Eastern Europe

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CONCLUSION ON THE CONSTITUTIONALITY OF THE ISTANBUL CONVENTION OF THE LITHUANIAN CONSTITUTIONAL COURT: CONTEXT, REASONING, AND LEGAL CONSEQUENCES

PREEMPTIVE SELF-DEFENCE IN PUBLIC INTERNATIONAL LAW: AN ANALYSIS THROUGH THE LENS OF INTERNATIONAL COURT OF JUSTICE JURISPRUDENCE

DEVELOPING A LEGAL FRAMEWORK FOR ELECTRONIC CONTRACTS IN THE CONTEXT OF TRADITIONAL CONTRACT THEORY: AN ANALYTICAL STUDY

ONLINE DISPUTE RESOLUTION IN UKRAINE: EXPECTATIONS AND REALITY

THE CHALLENGES OF INVESTMENT ARBITRATION: SUCCESS OR FAILURE? A COMPARATIVE ANALYSIS OF INVESTMENT ARBITRATION IN NORTH MACEDONIA AND KOSOVO

CONCLUSION ON THE CONSTITUTIONALITY OF THE ISTANBUL CONVENTION OF THE LITHUANIAN CONSTITUTIONAL COURT: CONTEXT, REASONING, AND LEGAL CONSEQUENCES

PREEMPTIVE SELF-DEFENCE IN PUBLIC INTERNATIONAL LAW: AN ANALYSIS THROUGH THE LENS OF INTERNATIONAL COURT OF JUSTICE JURISPRUDENCE

DEVELOPING A LEGAL FRAMEWORK FOR ELECTRONIC CONTRACTS IN THE CONTEXT OF TRADITIONAL CONTRACT THEORY: AN ANALYTICAL STUDY

ONLINE DISPUTE RESOLUTION IN UKRAINE: EXPECTATIONS AND REALITY

COPYRIGHT INFRINGEMENT IN THE DIGITAL AGE: THE CASE FOR REFORM TO KAZAKHSTAN’S COPYRIGHT LAWS

ISSN	2663-0575, 2663-0583
h-index	6