Faculty of Law

The main aim of this research is to explore the legal issues arising from the possible inclusion of Private Military Companies (PMC) as a military component of United Nations (UN) peacekeeping. It takes a step forward and explores the legal implications, consequences and limitations if such a policy option were to be chosen, but it does not expressly argue in favour or against such an option.

The organization of the research is the following: First, main concepts used here, namely, peacekeeping and a private military company, are clarified. Secondly, the legal framework applicable to PMC-peacekeeping is then outlined in detail: the two scenarios for PMC-inclusion are defined, the legal subjects involved are identified and the applicable substantive rules of international law are surveyed. Emphasis is placed on the rules related to UN-peacekeeping and applied in analogy at the end of each section regarding either private contractors or the two hypothetical scenarios. Next, the two scenarios are tested with rules of international responsibility for wrongful acts.

The conclusion outlines the major finding and legal limitations accompanying the possible use of PMCs in UN peacekeeping. First, one can conclude with confidence that there exists a certain detachment between the current use and status of private contractors in UN operations and the modalities which would be required for the implementation of the two hypothetical scenarios presented, namely the utilisation of PMCs as security-providing and combat forces under UN control and command. Second, both core parts of the analysis indicated that there currently exists a firmer case for the implementation of the first scenario that assumes an active role of states as providers of PMC-peacekeepers as seconded entities, similar to that of the national peacekeeping contingents. Third, the international responsibility debate is insufficient and needs to be supplemented by the individual criminal responsibility debate when exploring the option of PMC inclusion in UN peacekeeping.

This article examines the concept of terrorism in international law and highlights its relevant contemporary developments, paying particular attention to its criminalisation under  international criminal law. To this end, the problem of defi nition is approached and the basic distinction between terrorism as a treaty crime and terrorism as an international crime under universal jurisdiction is proposed and analysed.
An evolutionary theoretical approach to the criminalisation of international terrorism is supplemented with a more practical one which aims to offer a brief overview of the normative  measures taken within the European Union and their inclusion in the legal order of the Republic of Slovenia.

This research systematically reviews the international legal framework relevant to internal displacement and effectively demonstrates that the claims of its absence are incorrect and misleading. First basic legal characteristics relevant to internal displacement, its instalment in international law and its relation to some fundamental international legal principles are addressed. The subsequent review of applicable legal regimes and sources in combination with a substantial analysis of norms reveals that the majority of the IDP-protection provisions are well established in international human rights and humanitarian law. They are applicable to all forms of recognised (i.e. conflict-, disaster- and development-induced) internal displacement and they can, moreover, offer a legal basis for protection from and during new forms of internal displacement. But their implementation and enforcement in these situations is vague and categorically denied, which renders a far-reaching conclusion inapplicable to all categories of IDPs.

Although it is impossible to assert that IDP-protection has attained customary nature in international law similar to that of refugee-protection, it is undisputable that many of the IDP-protection provisions are rooted in customary international law or draw heavily from it. Moreover, the examination of the practice of international governmental and non-governmental institutions dealing with IDPs at both the headquarters and field levels demonstrates that in situations of humanitarian emergencies IDPs are increasingly treated as a special operational category. This effectively contributes to their protection needs being met, but also adds to their de facto legal recognition through approved international practice. Whether such treatment will ever result in the explicit legally distinct recognition of IDPs is questionable, if not unlikely.

Some make an elementary distinction that peacekeeping operations are not "'peace enforcement' [...], i.e., international sanctions that imply 'action by air, sea or land forces as may be necessary to maintain or restore international peace or security' under the terms of article 42 of the UN Charter,"

The European legislature has started building a framework for European civil procedure virtually
in every field of private law. The current trend in the legislation is the abolition of the exequatur
and direct enforceability of foreign
titles. The abolition of exequatur and direct enforcement of
foreign judicial decisions are opening questions of compatibility with standards of protection of
fundamental
r
ights. They are per se not incompatible with the ECHR. Where the debtor gets the
sam
e degree of guarantee of his rights of defence in the enforcement proceedings as he would in
the exequatur, the exequatur plainly starts being an obstacle to effective administration of justice.
The article then examines the possibility of lodging remedies
under the new regime of
“abolished” exequatur

Creditors in international trade are often faced with issues of an insolvent
foreign debtor who often has property and assets in several states. In such a
case creditors are faced with difficulties of international collective insolvency
proceedings. The introductory parts of the article examines the standard
questions like the question of a single, universal property of an individual or
legal person and on the other hand the principles of territoriality and
universality in public international law as far as the effects of foreign
collective insolvency proceedings are concerned. The article then deals with
issues of the centre of main interests as the point of contact and issues
opened with the application of the lex concursus.

Copyright is an absolute intellectual property right. Historically it is of territorial nature. One of the central issues of copyright is the remuneration of authors. A copyright confers to its holder a legal monopoly comprising certain economic rights that are granted for pecuniary consideration. The economically most efficient way of management of copyright's pecuniary consideration is the collective management. However, collective management covers due to territorial nature of copyright only territory of a certain state. In competition law that might be considered as a monopoly by collecting societies limited to borders of states, in other words there are issues of a possible abuse of a dominant position.

In last years the Constitutional Court of the Republic of Slovenia has completely
changed its case law concerning the condition of admissibility of interest in bringing
proceedings. According to now settled case law interest in bringing proceedings must be
personal, direct, present and legitimate and must be vested during whole proceedings.
Based on comparison with civil procedure the author first examines the importance of
interest in bringing proceedings and the contents of the term personal, present and legitimate
interest. In examining the direct interest the author opens a question whether direct
interest does not belong to the locus standi, as the direct effect of a contested measure
gives rise to the right of challenging this measure before the Constitutional Court.
The author then continues to discuss the questions of creation and cessation of interest in
bringing proceedings and of the doctrine of subsidiarity of remedies from the point of
view of interest in bringing proceedings.

Illegal state aids are distorting the competition by merits. The beneficiaries of
state aids have a competitive advantage compared to their competitors. The
article examines remedies that a competitor can lodge before ordinary courts
in Slovenia. The competitor can lodge an action for declaration as well as an
action for a compelling order. Each action has its own ambit and plays its
own role in the field of state aid. Therefore, an action for declaration shall not
be deemed merely as a subsidiary of an action for a compelling court order.
EU law contains a right to have a validity of contracts of private law by which
a state aid has been granted assessed by national courts. In Slovenian civil procedure this means that the
competitor can apply for a declaration of voidness of a contract infringing
rules on state aids. However, it a state aid has been granted by a general and
abstract measure or an individual administrative act, the competitor cannot
apply for a declaration of invalidity of such a measure or administrative act
before ordinary courts. A competitor can however apply for a declaration of
existence of a state aid in such a case.

Beihilfenrecht – Bankenmitteilung – Bankenrettung
– Bail-in-Ansatz – Abschreibung von Eigenkapital
und von nachrangigen Schuldtiteln – Gewährung
von Beihilfen – Vorabentscheidungsverfahren –
Gültigkeitsvorlage – Zuständigkeit der Kommission –
Eigentumseingriff.

Die verfassungsrechtliche Unabhängigkeit der Justiz wird in den neuen EU-Mitgliedstaaten durch die abhängige Stellung der Richter innerhalb der Justiz untergraben. Die Justiz in den neuen EU-Mitgliedstaaten wird nämlich durch die dominante Stellung der Gerichtspräsidenten gekennzeichnet. Auch Richter kom-men in Slowenien in den Genuss des Grundrechts auf freie Meinungsäußerung, Konflikte mit Gerichtspräsidenten sind vorprogrammiert. In der slowenischen Ju-stiz können Versuche beobachtet werden, dieses Grundrecht zu beschränken. Der Versuch der Erweiterung der Schranken des Grundrechts auf freie Meinungsäu-ßerung z.B. nach freiem Ermessen des Präsidenten des Obersten Gerichtshofes Sloweniens kann als eine nie überwundene Tradition der Gewalteneinheit in der slowenischen Justiz gedeutet werden. In diesem Ermessen zeigt sich dann die lei-tende Rolle des Gerichtspräsidenten, der auch als ein Mittel der Disziplinierung und Einwirkung auf richterliche Unabhängigkeit eingesetzt wird. Die Abhand-lung untersucht die Hintergründe solcher Tendenzen in Slowenien. Schlüsselwörter: Justizverwaltung; richterliche Unabhängigkeit; Stellung des Gerichtspräsidenten; Recht des Richters auf freie Meinungsäußerung; Schranken und Grenzen

In EU law, legal issues of consumer credit are not limited to question of unfair terms in consumer contracts linked to various aspects of pre-contractual information duties. The authors argue that pre-contractual information duties are part of EU law since the adoption of consumer protection directives, and critically assess a different legal opinion of the Supreme Court of the Republic of Slovenia. The authors first provide an overview of legislation and case law on consumer protection on the EU level and emphasize the duty of the Slovenian public administration to implement European consumer protection law. In doing so, in particular the assessment of principles of national procedural autonomy, equivalence and efficiency is provided in the article. In the continuation, typical public law issues, such as the admissibility of administrative sanctions (offences) concerning consumer loans in Swiss francs are assessed. The Court of Justice of the EU dealt with the question of such administrative sanction in the Horžić case. Due to the peculiarity of the facts of this case, Croatian legislation did not infringe EU law. The authors continue with the question of whether restrictions on offering loans in foreign currencies adversely affect rights to free movement of services and capital. The Court of Justice of the EU adjudicated on the issue in the Milivojević case and found that Croatian legislation conditioning granting of loans with a prior license issued by Croatian authorities infringed EU law as it was based solely on an economic reason lacking any justification in EU law for such a prohibition. In the end, the authors address Slovene issues on the draft Law on Protection of Borrowers of Loans in Swiss Francs, as the European Central Bank has already warned that such a law is incompatible with EU law, as it has retroactive effect and does not allow a fair burden sharing between creditors and borrowers.

Terms such as arbitration, mediation, conciliation and alternative dispute resolution (ADR) are nowadays standard terms in any classroom textbook on civil procedure. Legal scholars enumerated and assessed in depth the advantages and disadvantages of any type of outsourced dispute resolution. However, a number of legal writers still fail to enumerate the exact differences in course of events and all of the trade-offs that a party will have when deciding to resolve the dispute using an outsourced dispute resolution. Clearly the costs, the celerity and the flexibility are important issues. However, the decision is not influenced solely by legal arguments. This paper will mention some typical Slovenian issues in an assessment of the choice of dispute resolution. If parties want to continue to remain in good terms after the dispute, then an outsourced dispute resolution is highly recommended. Judicial rulings are to binary; one party wins, one loses.

The new Slovenian law on collective actions will start to be applied at the End of March
2018. The new legislation did not change the way of implementation of the Directive 22/2009/EC.
However, it did also introduce representative compensatory collective redress. Collective actions on
damages can be initiated either by State’s attorney or a representative entity that is a legal person of
private law with an aim of non-profit activities. The article assessed the historical development
since the Roman actio popularis and influences underlying the Slovenian legislation. There is
indeed the main influence of US class action. However, Dutch and Belgian influences in collective
redress are also quite visible.