The special operative entity might be generally identified as an insolvency administrator in bankruptcy and restructuring processes of enterprise. Insolvency administrator is a profit-seeking business entity that has the right to provide bankruptcy and restructuring administration services, and in the performance of an insolvent company administration, represents both the company's and its creditors' legitimate interests. Administrator has got the law granted comprehensive authority and by excercising it effectively the insolvency practitioner contributes to the success of the whole bankruptcy and restructuring procedure. Thus, the subject of this work - insolvency administrator institute - is an interesting and debatable topic both in Lithuania and abroad. The structure of the work is determined by the purpose formulated in the introduction - to analyze the characteristics of the legal status of administrator, to assess the role of the entity in bankruptcy and restructuring processes and to discuss the experience of foreign countries on the subject. After running through the evolution of discussed institute, the main part of this work consists of Lithuanian legislation and case law analysis – the author identifies the administrators' legal status problem areas and provides the trends for development of regulation. The aspects of insolvency administrators' legal status are analyzed in the context of Lithuanian legal system as well as in other selected foreign countries - Germany, Russia, Great Britain, Finland and Slovenia. The analysis of administrative activities ends with the general conclusions concerning the legal status of insolvency administrator, as well as implications for Lithuania's position in relation to foreign practices.
The special operative entity might be generally identified as an insolvency administrator in bankruptcy and restructuring processes of enterprise. Insolvency administrator is a profit-seeking business entity that has the right to provide bankruptcy and restructuring administration services, and in the performance of an insolvent company administration, represents both the company's and its creditors' legitimate interests. Administrator has got the law granted comprehensive authority and by excercising it effectively the insolvency practitioner contributes to the success of the whole bankruptcy and restructuring procedure. Thus, the subject of this work - insolvency administrator institute - is an interesting and debatable topic both in Lithuania and abroad. The structure of the work is determined by the purpose formulated in the introduction - to analyze the characteristics of the legal status of administrator, to assess the role of the entity in bankruptcy and restructuring processes and to discuss the experience of foreign countries on the subject. After running through the evolution of discussed institute, the main part of this work consists of Lithuanian legislation and case law analysis – the author identifies the administrators' legal status problem areas and provides the trends for development of regulation. The aspects of insolvency administrators' legal status are analyzed in the context of Lithuanian legal system as well as in other selected foreign countries - Germany, Russia, Great Britain, Finland and Slovenia. The analysis of administrative activities ends with the general conclusions concerning the legal status of insolvency administrator, as well as implications for Lithuania's position in relation to foreign practices.
The problem being researched. The integration of Middle and Eastern European states into democratic processes has determined changes in public sector management and with rationalization of sectors of Lithuanian economy the system of justice was also involved: in the year 1993 the Parliament approved the outlines of the reform of the system of justice which set that legal bases of the reform have to be formed, specialists are to be prepared employees selected, the necessary financial and economical basis created, new legal institutions have to be created and the old ones reformed in order to ensure the stable system of justice. The reform has revealed both the advantages and disadvantages of the system of justice: not all the areas of the system of justice have received the appropriate attention. A similar situation occurred when carrying out the outlines of the Reform of the System of Justice approved in the year 1998. An appropriate and effective functioning of legal proceeding has been emphasized in international acts of law and experts' meetings: democratization of management of prosecution system and improvement of the legal regulation of its management as well as more operative fulfillment of its functions are necessa ry; the reorganization has not only to strengthen prosecutors' professionalism but also to ensure the adequate working conditions. This position was approved by the resolutions of the Tenth Congress of the United Nations which took place in Vienna on the 17th of April, 2000 on the crime prevention and behavior with criminals which set that an appropriate administration of the system of criminal law is one of the most effective measures of the fight with criminality. In the programme of preparation for the Republic of Lithuania for entrance into the European Union for the year 2002 the priorities of strengthening of the role of The Prosecutor's Offi ce in the legal state which mentioned: democratization of prosecution system, improvement of the legal regulation of its management as well as more operative fulfillment of its functions.
The problem being researched. The integration of Middle and Eastern European states into democratic processes has determined changes in public sector management and with rationalization of sectors of Lithuanian economy the system of justice was also involved: in the year 1993 the Parliament approved the outlines of the reform of the system of justice which set that legal bases of the reform have to be formed, specialists are to be prepared employees selected, the necessary financial and economical basis created, new legal institutions have to be created and the old ones reformed in order to ensure the stable system of justice. The reform has revealed both the advantages and disadvantages of the system of justice: not all the areas of the system of justice have received the appropriate attention. A similar situation occurred when carrying out the outlines of the Reform of the System of Justice approved in the year 1998. An appropriate and effective functioning of legal proceeding has been emphasized in international acts of law and experts' meetings: democratization of management of prosecution system and improvement of the legal regulation of its management as well as more operative fulfillment of its functions are necessa ry; the reorganization has not only to strengthen prosecutors' professionalism but also to ensure the adequate working conditions. This position was approved by the resolutions of the Tenth Congress of the United Nations which took place in Vienna on the 17th of April, 2000 on the crime prevention and behavior with criminals which set that an appropriate administration of the system of criminal law is one of the most effective measures of the fight with criminality. In the programme of preparation for the Republic of Lithuania for entrance into the European Union for the year 2002 the priorities of strengthening of the role of The Prosecutor's Offi ce in the legal state which mentioned: democratization of prosecution system, improvement of the legal regulation of its management as well as more operative fulfillment of its functions.
Legal right of a legal person to its professional reputation is enshrined in 1 paragraph of Article 1.114 of the Civil Code of the Republic of Lithuania among other non-property rights and values. It is important to note that the mentioned legal measures contained in the legal system of the Republic of Lithuania and applied by the national courts must not violate the freedom of expression, protected by the European Convention on Human Rights (ECHR) and fundamental freedoms (hereinafter – the "Convention"). The national authorities when establishing and national courts when applying the legal rules for the protection of professional reputation that interferes with the freedom of expression, must make sure that such rules and their application do fulfill three cumulative conditions, determined by the European Court of Human Rights. Such conditions are: (1) the interference must be prescribed by law, (2) the interference must be aimed at protecting one or more of the interests or values listed in 2 paragraph of Article 10 of the Convention, (3) the interference must be necessary in a democratic society. With respect to the protection of a right of a legal person to its professional reputation in the legislation of the Republic of Lithuania, one may state that the first two conditions are fulfilled, but there are some doubts regarding the third condition, especially assessing the appliance of a preventive action or obligation for the media to pay pecuniary or (and) non-pecuniary damages when the media refuses to reveal the source of the disseminated information, even if the media did not know that the disseminated information was erroneous. The protection of the right of a legal person to its reputation is enshrined in Article 2.24 of the Civil Code of the Republic of Lithuania. In order to state the violation of the right of a legal person to its professional reputation the court must establish such facts: (1) the fact that the information was disseminated, (2) the fact that the disseminated information was about a particular legal person, (3) the fact that the disseminated information damages the professional reputation of a legal entity, (4) the fact that the disseminated information is erroneous. Not always it is simple and easy to determine such facts: there are some difficulties delimitating the news from opinion and for the plaintiffs is quite a challenge to proof the damage suffered because of the particularity of damaged right or for the defendant sometimes it is almost impossible to prove that the disseminated information is true because of the inability to get and provide certain proof. There are also some issues when determing the right defendant when applying to the court and questions when deciding on whether the person to whom the information was disseminated is right regarding the possibility to defend one's damaged professional reputation. The national courts must be flexible when taking the decision and must asses all the details in the case as not to base their decision only on formal grounds. According to Article 2.24 of the Civil Code in judicial proceedings the plaintiff may demand for further separate defense remedies: (1) to refute the disseminated information, which damages its professional reputation, (2) to declare the disseminated information untrue and damaging its professional reputation, (3) to award pecuniary damages, (4) to award non-pecuniary damages. The plaintiff may also apply to the court with the preventive action demanding to prohibit the dissemination of a certain information in the future or interim legal measure. The latter if applied by the court may be subject to the assessment by the European Court of Human Rights regarding the violation of Article 10 of the Convention as such remedy might be considered not proportional to the legal aim of the right to professional reputation.
Legal right of a legal person to its professional reputation is enshrined in 1 paragraph of Article 1.114 of the Civil Code of the Republic of Lithuania among other non-property rights and values. It is important to note that the mentioned legal measures contained in the legal system of the Republic of Lithuania and applied by the national courts must not violate the freedom of expression, protected by the European Convention on Human Rights (ECHR) and fundamental freedoms (hereinafter – the "Convention"). The national authorities when establishing and national courts when applying the legal rules for the protection of professional reputation that interferes with the freedom of expression, must make sure that such rules and their application do fulfill three cumulative conditions, determined by the European Court of Human Rights. Such conditions are: (1) the interference must be prescribed by law, (2) the interference must be aimed at protecting one or more of the interests or values listed in 2 paragraph of Article 10 of the Convention, (3) the interference must be necessary in a democratic society. With respect to the protection of a right of a legal person to its professional reputation in the legislation of the Republic of Lithuania, one may state that the first two conditions are fulfilled, but there are some doubts regarding the third condition, especially assessing the appliance of a preventive action or obligation for the media to pay pecuniary or (and) non-pecuniary damages when the media refuses to reveal the source of the disseminated information, even if the media did not know that the disseminated information was erroneous. The protection of the right of a legal person to its reputation is enshrined in Article 2.24 of the Civil Code of the Republic of Lithuania. In order to state the violation of the right of a legal person to its professional reputation the court must establish such facts: (1) the fact that the information was disseminated, (2) the fact that the disseminated information was about a particular legal person, (3) the fact that the disseminated information damages the professional reputation of a legal entity, (4) the fact that the disseminated information is erroneous. Not always it is simple and easy to determine such facts: there are some difficulties delimitating the news from opinion and for the plaintiffs is quite a challenge to proof the damage suffered because of the particularity of damaged right or for the defendant sometimes it is almost impossible to prove that the disseminated information is true because of the inability to get and provide certain proof. There are also some issues when determing the right defendant when applying to the court and questions when deciding on whether the person to whom the information was disseminated is right regarding the possibility to defend one's damaged professional reputation. The national courts must be flexible when taking the decision and must asses all the details in the case as not to base their decision only on formal grounds. According to Article 2.24 of the Civil Code in judicial proceedings the plaintiff may demand for further separate defense remedies: (1) to refute the disseminated information, which damages its professional reputation, (2) to declare the disseminated information untrue and damaging its professional reputation, (3) to award pecuniary damages, (4) to award non-pecuniary damages. The plaintiff may also apply to the court with the preventive action demanding to prohibit the dissemination of a certain information in the future or interim legal measure. The latter if applied by the court may be subject to the assessment by the European Court of Human Rights regarding the violation of Article 10 of the Convention as such remedy might be considered not proportional to the legal aim of the right to professional reputation.
Directive 2005/29/EC concerning unfair B2C commercial practices in the internal market was adopted by the European Parliament and Council on 11 May 2005 and was implemented in Lithuania on 21 December 2007 as the Law on the Prohibition of Unfair Commercial Practices to Consumers. Thus our country began to regulate the protection against unfair commercial practices harming consumers' economic interests. This paper deal with the problems of legal regulation and application of this institute. In respect that the area of harmonised law is so closely intertwined with the law of unfair competition, the paper first and foremost presents the genesis of unfair B2C commercial practices regulation in European Union. The novelty of unfair commercial practices institute in Lithuanian legal system makes this aspect much more important. The paper also examines the problems of legal regulation and application of prohibiting unfair commercial practices in B2C relationships. The Unfair Commercial Practices Directive provides for maximum harmonisation. This principle not only raised much concern in the legal literature but also yield a number of difficulties in the interpretation of the directive. For this reason, the paper focuses not only on the maximum harmonization mechanism but also on the scope of the Unfair Commercial Practices Directive which is particularly related with the latter. In this section the paper especially emphasizes the concept 'commercial practices' which covers a wide variety of business behaviour, some additional delimitations which are not explicitly set out in the Unfair Commercial Practices Directive and its restriction only to B2C relations. Moreover, the paper deals with the concept 'average consumer' and its normative orientation of European Community law. It assesses the choice of the average consumer test and reveals its strengths and weaknesses. The paper also analyzes reasoning of the Unfair Commercial Practices Directive structure. The Community legislator has not provided any guidance on the possible consequences which result from the threefold structure. That is why there is considerable uncertainty. For this reason, the paper also assesses the relationship between the prohibitions contained in the directive.
Directive 2005/29/EC concerning unfair B2C commercial practices in the internal market was adopted by the European Parliament and Council on 11 May 2005 and was implemented in Lithuania on 21 December 2007 as the Law on the Prohibition of Unfair Commercial Practices to Consumers. Thus our country began to regulate the protection against unfair commercial practices harming consumers' economic interests. This paper deal with the problems of legal regulation and application of this institute. In respect that the area of harmonised law is so closely intertwined with the law of unfair competition, the paper first and foremost presents the genesis of unfair B2C commercial practices regulation in European Union. The novelty of unfair commercial practices institute in Lithuanian legal system makes this aspect much more important. The paper also examines the problems of legal regulation and application of prohibiting unfair commercial practices in B2C relationships. The Unfair Commercial Practices Directive provides for maximum harmonisation. This principle not only raised much concern in the legal literature but also yield a number of difficulties in the interpretation of the directive. For this reason, the paper focuses not only on the maximum harmonization mechanism but also on the scope of the Unfair Commercial Practices Directive which is particularly related with the latter. In this section the paper especially emphasizes the concept 'commercial practices' which covers a wide variety of business behaviour, some additional delimitations which are not explicitly set out in the Unfair Commercial Practices Directive and its restriction only to B2C relations. Moreover, the paper deals with the concept 'average consumer' and its normative orientation of European Community law. It assesses the choice of the average consumer test and reveals its strengths and weaknesses. The paper also analyzes reasoning of the Unfair Commercial Practices Directive structure. The Community legislator has not provided any guidance on the possible consequences which result from the threefold structure. That is why there is considerable uncertainty. For this reason, the paper also assesses the relationship between the prohibitions contained in the directive.
This master thesis provides an analysis of the legality of preemptive self-defence under international law. In assessing the lawfulness of preemptive self-defence two basic sources of international law: customary and treaty law are examined. The analysis of the UN Charter rules showed that there is strong disagreement between scholars regarding the legality of anticipatory self-defence. However, the term "armed attack" in article 51 UN Charter should embrace imminent threats. Two basic reasons are: the advent of weapons of mass destruction (WMD) and new methods of warfare; the inherent right of anticipatory self-defence was not exhausted after the adoption of the UN Charter. The examination of customary international law showed that the Caroline doctrine allows states to act in anticipation of an armed attack if the requirements of necessity and proportionality are fulfilled. In addition, the analysis of state practice and opinion juris prior and after September 11, 2001, revealed that anticipatory self-defence is not prohibited. The conclusion is maid that the right of anticipatory self-defence, if requirements of necessity and proportionality are fulfilled, is not illegal under international law. In contrast, the analysis of the UN Charter rules showed that preemptive self-defence against perceived threats is not legal under the UN Charter, because there is no actual armed attack or imminent threat against which state can legally defend itself. In addition, preemptive use of military force against emerging threats has no safeguards. The examination of customary law prior and after September 11, 2001, revealed that a new rule, which would allow states to use military force in self-defence, was not created, because there is a lack of opinio juris and state practice. The conclusion is drawn that preemptive use of force is not legal under international law.
This master thesis provides an analysis of the legality of preemptive self-defence under international law. In assessing the lawfulness of preemptive self-defence two basic sources of international law: customary and treaty law are examined. The analysis of the UN Charter rules showed that there is strong disagreement between scholars regarding the legality of anticipatory self-defence. However, the term "armed attack" in article 51 UN Charter should embrace imminent threats. Two basic reasons are: the advent of weapons of mass destruction (WMD) and new methods of warfare; the inherent right of anticipatory self-defence was not exhausted after the adoption of the UN Charter. The examination of customary international law showed that the Caroline doctrine allows states to act in anticipation of an armed attack if the requirements of necessity and proportionality are fulfilled. In addition, the analysis of state practice and opinion juris prior and after September 11, 2001, revealed that anticipatory self-defence is not prohibited. The conclusion is maid that the right of anticipatory self-defence, if requirements of necessity and proportionality are fulfilled, is not illegal under international law. In contrast, the analysis of the UN Charter rules showed that preemptive self-defence against perceived threats is not legal under the UN Charter, because there is no actual armed attack or imminent threat against which state can legally defend itself. In addition, preemptive use of military force against emerging threats has no safeguards. The examination of customary law prior and after September 11, 2001, revealed that a new rule, which would allow states to use military force in self-defence, was not created, because there is a lack of opinio juris and state practice. The conclusion is drawn that preemptive use of force is not legal under international law.
This master thesis provides an analysis of the legality of preemptive self-defence under international law. In assessing the lawfulness of preemptive self-defence two basic sources of international law: customary and treaty law are examined. The analysis of the UN Charter rules showed that there is strong disagreement between scholars regarding the legality of anticipatory self-defence. However, the term "armed attack" in article 51 UN Charter should embrace imminent threats. Two basic reasons are: the advent of weapons of mass destruction (WMD) and new methods of warfare; the inherent right of anticipatory self-defence was not exhausted after the adoption of the UN Charter. The examination of customary international law showed that the Caroline doctrine allows states to act in anticipation of an armed attack if the requirements of necessity and proportionality are fulfilled. In addition, the analysis of state practice and opinion juris prior and after September 11, 2001, revealed that anticipatory self-defence is not prohibited. The conclusion is maid that the right of anticipatory self-defence, if requirements of necessity and proportionality are fulfilled, is not illegal under international law. In contrast, the analysis of the UN Charter rules showed that preemptive self-defence against perceived threats is not legal under the UN Charter, because there is no actual armed attack or imminent threat against which state can legally defend itself. In addition, preemptive use of military force against emerging threats has no safeguards. The examination of customary law prior and after September 11, 2001, revealed that a new rule, which would allow states to use military force in self-defence, was not created, because there is a lack of opinio juris and state practice. The conclusion is drawn that preemptive use of force is not legal under international law.
Superior responsibility, otherwise known as command responsibility, is a well established doctrine in both treaty and customary international law. Superiors are held criminally responsible for breaches of international humanitaran law committed by their subordinates. Responsibility arises only after superior fails to take any preventive or punitive action when he was under a duty to do so. There is no common opinion of what that doctrine should stand for, is it a mode of liability for subordinates crimes or a separate offence of superior. It is a crime of omission which has no or little support in national legislation systems. Superior responsibility is a sui generis form of responsibility for omission. Superior responsibility, according to ad hoc tribunals jurisprudence, is constructed of three elements which are superior-subordinate relationship, superior's mens rea and ability to take necessary and reasonable measures to prevent subordinate's crime and punish. All these elements must be proofed beyond reasonable doubt. Superior-subordinate relationship can only be established if there existed effective command and control between those two. Effectiveness is a material ability to influence subordinates actions in a way of either stopping them from committing a crime or being able to punish. Superiors mens rea in Rome Statute for military commander and a person, effectively acting as such is more strict than for other superiors, described in art. 28(b). Travaux préparatoires of the Rome Statute suggests, that civilians, unlike military commanders, are not capable of fulfilling their obligations in the same way. Due to this reason, a lower standard was introduced. Rome Statute has applied an internationally not known superior duty which could entail criminal responsibility – to keep oneself constantly informed. It is not only contradictory to customary law, but also narrows superiors fundamental right to defense. Ad hoc tribunals have removed a requirement of causality, since International Criminal Court applied it directly in its statute as a compulsory element of the doctrine. Causality may exist between superiors failure to prevent the crime and its occurrence. While in the duty to punish case, causality exists between superiors failure to punish and subordinates remained unpunished.
Superior responsibility, otherwise known as command responsibility, is a well established doctrine in both treaty and customary international law. Superiors are held criminally responsible for breaches of international humanitaran law committed by their subordinates. Responsibility arises only after superior fails to take any preventive or punitive action when he was under a duty to do so. There is no common opinion of what that doctrine should stand for, is it a mode of liability for subordinates crimes or a separate offence of superior. It is a crime of omission which has no or little support in national legislation systems. Superior responsibility is a sui generis form of responsibility for omission. Superior responsibility, according to ad hoc tribunals jurisprudence, is constructed of three elements which are superior-subordinate relationship, superior's mens rea and ability to take necessary and reasonable measures to prevent subordinate's crime and punish. All these elements must be proofed beyond reasonable doubt. Superior-subordinate relationship can only be established if there existed effective command and control between those two. Effectiveness is a material ability to influence subordinates actions in a way of either stopping them from committing a crime or being able to punish. Superiors mens rea in Rome Statute for military commander and a person, effectively acting as such is more strict than for other superiors, described in art. 28(b). Travaux préparatoires of the Rome Statute suggests, that civilians, unlike military commanders, are not capable of fulfilling their obligations in the same way. Due to this reason, a lower standard was introduced. Rome Statute has applied an internationally not known superior duty which could entail criminal responsibility – to keep oneself constantly informed. It is not only contradictory to customary law, but also narrows superiors fundamental right to defense. Ad hoc tribunals have removed a requirement of causality, since International Criminal Court applied it directly in its statute as a compulsory element of the doctrine. Causality may exist between superiors failure to prevent the crime and its occurrence. While in the duty to punish case, causality exists between superiors failure to punish and subordinates remained unpunished.
Summary The ISDA Master Agreement Provisions in the Context of Imperative Legal Norms of the Republic of Lithuania ISDA master agreement is one of the most important agreements in modern financial markets. The first edition of this agreement was published in 1992, when the development of documentation of derivatives had begun. Following to this ISDA master agreement and the close-out netting provisions of this agreement had significant impact to the growth of the world's financial markets and lead to implementation of netting laws in many of the jurisdictions. However, first steps to introduce the close-out netting in Lithuanian law system had been done only after it became the member of European Union, when the Law of Collateral Agreements was adopted. The first part of the thesis deals with the issues, related to structure and evolution of ISDA master agreement and the significance of this document to the Lithuanian and world's financial markets. The second part of the thesis deals with the analysis of two most important mechanisms of the credit risk reduction: close-out netting and collateral agreements. Moreover, it comments the legal capacity of legal subjects to enter ISDA master agreement.
Summary The ISDA Master Agreement Provisions in the Context of Imperative Legal Norms of the Republic of Lithuania ISDA master agreement is one of the most important agreements in modern financial markets. The first edition of this agreement was published in 1992, when the development of documentation of derivatives had begun. Following to this ISDA master agreement and the close-out netting provisions of this agreement had significant impact to the growth of the world's financial markets and lead to implementation of netting laws in many of the jurisdictions. However, first steps to introduce the close-out netting in Lithuanian law system had been done only after it became the member of European Union, when the Law of Collateral Agreements was adopted. The first part of the thesis deals with the issues, related to structure and evolution of ISDA master agreement and the significance of this document to the Lithuanian and world's financial markets. The second part of the thesis deals with the analysis of two most important mechanisms of the credit risk reduction: close-out netting and collateral agreements. Moreover, it comments the legal capacity of legal subjects to enter ISDA master agreement.
