Papers by Marek Świerczyński
Utrecht Law Review
This article focuses on the compatibility of electronic enforcement proceedings and the right to ... more This article focuses on the compatibility of electronic enforcement proceedings and the right to a fair trial. Since Article 6 of the European Convention on Human Rights is applicable to enforcement proceedings, enforcement proceedings must be effective and satisfy the requirement of fair trial. Electronic enforcement proceedings need to find a fair balance between accelerated enforcement and protection of human rights. Thus, the authors analyse what procedural guarantees of fair trial are applicable in electronic enforcement proceedings and how they are compatible with the protection of human rights. In order to answer these questions, the authors first analyse what procedural guarantees of fair trial are applicable in electronic enforcement proceedings and what is the application, ratione personae, of Article 6 of the ECHR in such proceedings. Second, the authors focus on some specific issues of electronic enforcement proceedings: electronic issuance and submission of enforceable documents and electronic auctions. The analysis encompasses the relevant case law of the European Court of Human Rights, and the regulation of enforcement proceedings and case law of various states. Third, the authors discuss the problems of liability for violations of the right to fair electronic enforcement proceedings.
Review of European and Comparative Law
An issue that is characteristic of AI is data processing on a massive scale (giga data, Big Data)... more An issue that is characteristic of AI is data processing on a massive scale (giga data, Big Data). This issue is also important because of the proposition to require manufacturers to equip AI systems with a means to record information about the operation of the technology, in particular the type and magnitude of the risk posed by the technology and any negative effects that logging may have on the rights of others. Data gathering must be carried out in accordance with the applicable laws, particularly data protection laws and trade secret protection laws. Therefore, it is necessary to determine the applicable law in line with existing conflict-of-law regulations.
Zeszyty Prawnicze
Highly specialized methods of selecting participants for clinical trials have been in use for a l... more Highly specialized methods of selecting participants for clinical trials have been in use for a long time in the medical sciences. An example is offered by oncological pre-profling, which involves the use of genetic biomarkers for a preliminary identification of oncological patients for clinical trials. We should expect further developments in this area, due to the rapid progress being made in e-health technologies and patients’ growing use of mobile applications. Failure to use new technologies in recruitment could even lead to failure in carrying out a clinical trial due to a shortage of participants. This issue is particularly important due to the regulatory framework for profiling adopted under GDPR (the General Data Protection Regulation). GDPR is of crucial importance for the R&D activities pursued by the pharmaceutical industry and in personalized medicine, and one of the biggest challenges is the practical application of its rules in profiling activities. Te same applies to t...
Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the ... more Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non‑contractual obligations (the Rome II Regulation) defines the conflict‑of‑law rules applicable to non‑contractual obligations in civil and commercial matters. It has been in force since 11 January 2009. Article 30 of the Regulation foresees an evaluation report on its application. The European Commission already asked the Polish Ministry of Justice for an input via a Questionnaire issued in 2012 (see M. Pazdan, M. Jagielska, W. Kurowski, M. Świerczyński, M.‑A. Zachariasiewicz, M. Zachariasiewicz, Ł. Żarnowiec: Materials: The Response to Commission’s Questionnaire to the Member States Regarding the Application of the Regulation 864/2007 on the Law. „Problemy Prawa Prywatnego Międzynarodowego” 2013, vol. 12, p. 165—197). At that stage — it was not yet possible to present a developed picture of our courts’ approach to the Regulation as no extensive case‑law was availabl...
Rome II Regulation of 11 July 2007 contains the conflict of laws rules relating to the non‑contra... more Rome II Regulation of 11 July 2007 contains the conflict of laws rules relating to the non‑contractual obligations such as torts, unjust enrichment, negotiorum gestio, culpa in contrahendo and product liability. Recently, the Commission has commenced consultations regarding the practical application of these rules, in relation to its obligation to submit a report pursuant to Article 30 of the Regulation. The Commission seeks the view of the Member States in order to consider modification and suggestions for future. The present work constitutes a response to the Commission’s Questionnaire prepared jointly by a group of authors under a lead of professor Maksymilian Pazdan. The response constituted the basis for the reply given by Polish Codification Committee on behalf of the Polish government. There were some general and several specific questions posed by the Commission in the Questionnaire. They are dealt with in the response. Some of the most important suggestions are summarized b...
Review of European and Comparative Law, 2022
Digitalisation of courts plays an increasingly important role in dispute resolution. It has the a... more Digitalisation of courts plays an increasingly important role in dispute resolution. It has the ability to improve access to justice by facilitating faster and less costly access to courts, thereby making dispute resolution more effective and efficient. However, wide use of digital courts also has the potential to restrict access to justice. Attention needs to be given to issues of authentication and identification of the parties, digital divide, cybersecurity and personal data protection. This paper concerns recent guidelines of the Council of Europe that aim to fully address these issues and assist member States in ensuring that implemented digital techniques in the courts do not undermine human dignity, human rights and fundamental freedoms. The author answers and critically evaluates the specific questions and doubts relating to the content of the guidelines. The author’s recommendations can be taken into consideration by the Council of Europe in future updates of the guidelines.
Internet and New Technologies Law, 2021
Every technology has a good and a bad side, and the use people make of the fruits of their knowle... more Every technology has a good and a bad side, and the use people make of the fruits of their knowledge depends on themselves 1
Problemy Prawa Prywatnego Międzynarodowego, 2020
Disputes arising from international data breaches can be complex. Despite the introduction of new... more Disputes arising from international data breaches can be complex. Despite the introduction of new, unified EU regulation on the protection of personal data (GDPR), the European Union failed to amend the Rome II Regulation on the applicable law to non-contractual liability and to extend its scope to the infringements of privacy. GDPR only contains provisions on international civil procedure. However, there are no supplementing conflict-of-law rules. In order to determine the applicable law national courts have to apply divergent and dispersed national codifications of private international law. The aim of this study is to propose an optimal conflict-of-law model for determining the applicable law in case of infringement of the GDPR’s privacy regime.
International Comparative Jurisprudence, 2021
This article focuses on the implementation of a stay of individual enforcement actions in corpora... more This article focuses on the implementation of a stay of individual enforcement actions in corporate restructuring proceedings. The authors analyse the general goals of a stay of individual enforcement actions in restructuring proceedings by considering, for instance, the economic reasons for such a stay, when it should be applicable, and the exceptions that should be established for its application. The Directive on restructuring and insolvency, adopted on 20 June 2019, reforms the regulation of a stay of individual enforcement actions in Member States of the European Union, aims to increase the efficiency of restructuring proceedings by providing legal instruments to facilitate a debtor’s negotiation of a restructuring plan, and provides certain rules as to how a debtor’s assets should be protected during these negotiations. Namely, a stay of individual enforcement actions and the protection of essential executory contracts should protect a debtor and ensure the equality of all cre...
Medicine, Law & Society, 2019
Biopharmaceuticals are one of the most important recent medical innovations which revolutionised ... more Biopharmaceuticals are one of the most important recent medical innovations which revolutionised many areas of medicine. Dynamic development of the market for biopharmaceuticals in recent years is related to the expiration of the IP exclusive rights on original innovative biological medicinal products. This has resulted in introduction to the market of biosimilars. One of the greatest challenges concerning the emergence of biosimilars is modifying the law to ensure balance between the market development of biosimilars and access of patients to biological therapy. The development of biopharmaceutical inventions works hand in hand with the patent system. It should be underlined that IP rights in the biopharmaceutical sector are crucial for promoting innovation due to the very long time of product development. It is exactly the area in which patents make sense to fill the gap between innovation and the risk of imitation. However, the existing patent system is too expensive and slow for biotechnology development. It should be further adapted to the needs of biopharmaceuticals.
internetowy Kwartalnik Antymonopolowy i Regulacyjny, 2016
This paper relates to patent infringements on second medical use in the light of competition law ... more This paper relates to patent infringements on second medical use in the light of competition law and the reimbursement system. It is inspired by two recent rulings delivered by English and Dutch courts. They have considered whether the sale of generic drugs may be regarded as an infringement of a patent relating to a second medical use (not indicated on the labels) in situations where the facts of the case showed that these drugs have actually been used in a way covered by this patent (i.e. off-label use). In the light of these rulings, the main purpose of this paper is to answer the question whether it is appropriate, in the light of competition law, to limit the scope of the patent on second medical use in situations where drugs based on the substance are subject to reimbursement, in order to provide wider access to these drugs to patients
Masaryk University Journal of Law and Technology, 2020
On 30 January 2019 the Council of Europe adopted guidelines on electronic evidence in civil and a... more On 30 January 2019 the Council of Europe adopted guidelines on electronic evidence in civil and administrative law accompanied by the Explanatory Memorandum. The authors summarize and analyse this soft law instrument with respect to intellectual property (hereinafter “IP”) disputes. They explain why its creation is important for the proper administration of justice and how it addresses and reflects technological developments, new business models and evolving case-law. Several conclusions have been identified regarding how use of the Guidelines will address current practical problems for courts in IP disputes. Both authors took active part in the preparatory works and believe it is in the interest of justice and effective IP protection that these guidelines are publicly available in the member states and widely disseminated among professionals dealing with electronic evidence.
Masaryk University Journal of Law and Technology, 2020
The authors examine the problem of the law applicable to liability for damages due to traffic acc... more The authors examine the problem of the law applicable to liability for damages due to traffic accidents involving autonomous vehicles. Existing conflict-of-laws regulation adopted in the Rome II Regulation and both Hague Conventions of 1971 and 1973 is criticized. Upon examination of these legal instruments, it becomes clear that existing regulation is very complex and complicated. In effect authors recommend revisions to the legal framework. Proposed solutions are balanced and take into consideration both the interests of the injured persons, as well the persons claimed to be liable. New approach allows for more individual consideration of specific cases and direct to better outcome of the disputes. The findings may be useful in handling the cases related to use of algorithms of artificial intelligence in private international law.
Utrecht Law Review, 2020
On 30 January 2019 the Council of Europe adopted the first guidelines on electronic evidence in c... more On 30 January 2019 the Council of Europe adopted the first guidelines on electronic evidence in civil and administrative proceedings (hereinafter also 'Guidelines'). 1 The authors question if the Guidelines already require some revisions. They also consider, whether the revised Guidelines should provide more practical advice to courts and legal practitioners related to electronic evidence. Several aspects have been identified regarding the use of the Guidelines by the courts in particular with the regard to the rapid development of online dispute resolutions systems and use of artificial intelligence algorithms in judicial systems. Both authors took an active part in the preparatory works of the Guidelines and believe it is in the interest of justice that the Guidelines should be regularly updated addressing and reflecting technological developments, new business models and evolving case-law.
Global Journal of Comparative Law, 2020
On 30 January 2019 the Council of Europe adopted guidelines on electronic evidence in civil and a... more On 30 January 2019 the Council of Europe adopted guidelines on electronic evidence in civil and administrative law (hereinafter “the Guidelines”). The article summarizes and analyses this soft law instrument and explains why its creation is important for the proper administration of justice and how it addresses and reflects technological developments, new business models and evolving case-law. Several conclusions have been identified regarding how use of the Guidelines will address current practical problems for courts and attorneys while maintaining full compliance with important principles like the right to a fair trial, protection of private life and national laws of the member states.
Problemy Prawa Prywatnego Międzynarodowego, 2019
The legal effects of the use of artificial intelligence algorithms need to be assessed not only a... more The legal effects of the use of artificial intelligence algorithms need to be assessed not only at the level of national law, but also at the level of private international law. The initial point of assessment is to determine the law applicable to legal events related to artificial intelligence. The conflict of laws analysis of artificial intelligence also allows to expand the knowledge about traditional private international law institutions, such as ordre public clause. The paper does not pretend to fully explain the issue of conflict of laws of artificial intelligence. Its aim is to make a preliminary verification of the conflict-of-laws methods based of existing instruments. The study aims to start an academic discussion on artificial intelligence in the context of the conflicts of law. It is important as legal events related to artificial intelligence algorithms are characterized by considerable complexity.
Comparative Law Review, 2019
The article discusses the problem of the indeterminate defendant in European tort law systems and... more The article discusses the problem of the indeterminate defendant in European tort law systems and in the projects aiming to unify tort law in Europe, such as Draft Common Frame of Reference and Principles of European Tort Law. The given issue relates to a situation where there is a damage caused by one factor, yet upon available evidence one may indicate a few potential factors which might have led to the damage, but it cannot be ascertained which factor was the actual cause of it. The problem is addressed with reference to two scenarios. First, when there is a limited and known number of persons acting tortiously, each of whom potentially might have led to the damage, but only one of them had actually caused it. Second, when it is certain that one tortfeasor from the undetermined group of tortfeasors caused damage to some of the injured persons from the group of the injured persons, but it cannot be established precisely which tortfeasor caused damage to precisely which injured person. In comparative law analysis, one may find various attempts to deal with the given issue, which come from the balance of ratios given to different solutions, as well as the legal possibilities or obstacles in national tort law systems. The main possibilities are: all-or-nothing approach, joint and several liability, and proportional liability. Those solutions are discussed in article in more detail with conclusion that the bold proposition of proportional liability presented in Principles of European Tort Law seems to be the most appropriate.
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Papers by Marek Świerczyński