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Freeriding isn’t allowed in an alliance, but neither is bullying and humiliating your allies
Donald Trump has caused uproar in Europe by his comments that the US under his lead would not come to the rescue of NATO states that are not contributing enough financially to NATO’s defence capacity. This is not the first time he has said such things, and he made similar suggestions when he was the sitting president. This time he added some unhinged and provocative comments about how he would actually encourage Russia to do “whatever the hell it wants” with non-paying NATO member states. But leaving aside this appalling style and all antipathies, let’s consider if he has a point in law.
Our unwritten constitution
A fundamental problem in any democracy is how to prevent the tyranny of the majority—when a political force gains enough public support and power to enable it to trample on the fundamental rights of its opponents (and ultimately its own supporters).
Neither fountainhead of justice nor good Samaritan
The rulings of the Polish Constitutional Tribunal likening the President’s pardon power to a royal whim are wrong. In former monarchies, the king was deemed the “fountainhead of justice,” and thus could be said to have unbridled licence to interfere in its administration. In a modern state, the President does not play such a role, and in a democracy sources of justice are sought elsewhere. Therefore, the President’s pardon power cannot be understood so anachronistically.
The Polish North and South
During the American Civil War, the leaders of the Confederacy rejected the US Constitution and the legitimate authority of the United States, and for four years exercised their own dominion over the South. When the rebellion was finally put down, US courts had to recognise that under the US Constitution and the Union’s understanding of it, the rebellion was illegal and the rebel leaders had no legal basis for participating in it. Using the terminology fashionable in Poland today, we could call these persons “neo-officials.”
Should we be preparing for a Russian-Belarusian investment arbitration offensive?
After Russia threatened to expropriate foreign investors withdrawing from that country because of the war with Ukraine started by Russia and Belarus, we have seen an avalanche of commentaries encouraging wronged enterprises to prepare lawsuits against Russia in investment arbitration proceedings.
EU economic sanctions and international sport
Clubs are withdrawing from Russian leagues and foreign players are terminating contracts with Russian clubs. This is not just a protest against the war, but a rational step in the face of EU economic sanctions. And possibly the biggest shocks are still to come.
The Russia ban and the principle of neutrality of sport
One of the fundamental principles enshrined in the Olympic Charter is the principle of neutrality. According to this principle sport must be separate from political, religious or any other type of interference. This principle has been put to a major test by the international sport community’s response to the Russian invasion on Ukraine.
Compensation for human rights violations in supply chains
international law, project, ESG & sustainability
Businesses are to be held legally accountable for failing to exercise due diligence to prevent human rights violations from occurring in their supply chains. On 23 February 2022, the European Commission published a long-awaited draft Directive on Corporate Sustainability Due Diligence.
News from Poland—Business & Law, Episode 13 (part 2): interrogation of a foreigner as a witness
News from Poland, litigation
Stanisław Drozd and Konrad Grotowski carry on explaining what to expect if you are a foreigner testifying as a witness before the Polish civil court.
The dispute over the Polish judicial system and the security of legal rulings: On the common-law de facto doctrine of judicial competence
The legal chaos into which the Polish judicial system has been plunged generates huge practical problems and threats to the security of legal rulings. It casts into doubt the legality of hundreds of judicial appointments and the validity of thousands and thousands of rulings on which commercial and social life are based. One way to contain these threats could be the principle functioning in common-law countries known as the “de facto doctrine,” which under certain conditions allows the acts of judges and officers who were unlawfully appointed to be deemed nonetheless valid. Outside the common law, this doctrine could also be inferred from the constitutional principle of the rule of law as well as the fundamental principles of EU law.
News from Poland—Business & Law, Episode 13 (part 1): interrogation of a foreigner as a witness
News from Poland, litigation
This time Stanisław Drozd and Konrad Grotowski explain what to expect if you are a foreigner testifying as a witness before the Polish civil court. The second part of the film will be published in January next year.
The real cause and the hard cure for the “regulatory chill” of international investment agreements
There is a growing concern among human rights advocates that states—in particular capital-importing ones—are not doing enough to protect their societies against human rights abuses related to foreign investments. The common conviction is that this has to do with the “regulatory chill” caused by international investment agreements (IIAs). States reportedly hesitate to pursue regulations and policies promoting human rights, in fear of being sued in the international arbitration provided for by IIAs for unduly interfering with foreign investors’ interests.