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• Editorial Board 2021

CONTENT

• Editorial Board 2021

SOME METHODOLOGICAL DILEMMAS IN COMPARATIVE TAX LAWSince for much of the 20th century the comparative law was developing as the comparative private law, with subsequent inclusion of constitutional, administrative and criminal law, comparisons of national tax systems were until recently marginal. The examination of the methods appropriate for the comparative tax law was especially neglected. Assuming that method in comparative law can be identified by techniques of comparisons, the authors considered dilemma whether the starting point for comparisons is praesumptio similitudinis or presumption of difference. Stemming from diversities of these assumptions, two methodological approaches in the comparative (tax) law have developed – functionalism (based on presumption of similarities) and cultural differences approach, from which critical approach subsequently emerged. Having analysed advantages and disadvantages of both approaches, the authors elaborated the basics of „cultural functionalism“, based on the inclusion of cultural context into the research of the ways how tax laws subject to comparison solve the given problems.

• Dejan Popović [ University of Belgrade Faculty of Law, Serbia ]
• Gordana Ilić-Popov [ University of Belgrade Faculty of Law, Serbia ]

VIRTUAL ARBITRATION HEARINGS: THE NEW NORMAL?This paper addresses the notion and legal framework for virtual hearings in international arbitration. The authors first examine the existing laws in different jurisdictions and how they tackle the issue both when it comes to litigation and when it comes to arbitration, followed by analyses of various institutional arbitration rules, including recent changes thereof and pertinent case law on the matter. They further examine the general idea of a virtual setting for the hearing against legal and technical objections frequently encountered in practice. In particular, the interplay of technical capabilities and legal standards such as “due process” and the “right to present one’s case” is assessed. Finally, the authors identify possible pathways to replacing the classical in-person hearing with the virtual one and the key legal and practical considerations to be assessed before deciding to proceed with it.

• Vladimir Pavić [ University of Belgrade Faculty of Law, Serbia; Vice-President of Belgrade Arbitration Center, Serbia ]
• Milena Đorđević [ University of Belgrade Faculty of Law, Serbia; Member of the ICC International Court of Arbitration ]

TRANSFORMATION OF THE POLIS AND TWO SOPHISTIC REFLECTIONS: PROTAGORAS AND CALLICLESBy comparing Protagoras’ and Callicles’ arguments, the author outlines two accounts that respond to the questions raised by the changing social realities of 5th century BC Athens. The two sophists’ views are comprised of several complementary elements: 1) viewing humans as beings driven by pursuit of pleasures and avoidance of pain; 2) distinguishing law from nature; 3) views of morality as grounded in nature; 4) demanding that laws be adjusted to natural standards of justice and good life. A key point of disagreement can be found in Protagoras’ myth, where he distinguishes between natural principles that apply only to humans and those that pertain to the rest of the natural world. This draws an important distinction between Protagoras and Callicles: Protagoras’ democratic man seeking to influence the outcomes of collective political decision-making in an egalitarian community is contrasted by Callicles’ aristocrat who is meant to freely govern over their inferiors.

• Marko Simendić [ University of Belgrade Faculty of Political Sciences, Serbia ]

EKDIKOS (DEFENSOR CIVITATIS) IN ROMAN EMPIRE AND BYZANTIUMDuring the 5th and 6th centuries a significant change occurred in the nature of defensor civitatis, in line with the social and political context. After the reign of Emperor Justinian I, the competences of the defensor decreased. In cities, bishops took over tasks previously carried out by the defensores, a probable consequence being the disappearance of ekdikoi from administration and civil law, believed to have occurred in the 6th and 7th centuries. The conclusions of this study support the thesis that the ekdikoi functioned in the Eastern Roman Empire as late as in the 8th century, and in some forms until the 9th century. In some parts of the Empire the ekdikoi acted until the early 10th century, which was proven by the discovery of the Cherson seals. The methods used are linguistic interpretation of middle-Byzantine legal codes and comparative-historical method based on identification of Byzantine adoptions of Roman provisions.

• Tamara Ilić [ Institute for Byzantine Studies, SASA; Assistant Professor, Union Faculty of Law, Serbia ]

LEGAL, SOCIAL AND ETHICAL IMPLICATIONS OF HUMAN GENOME EDITING USING CRISPR/Cas9Discovery of CRISPR/Cas9 technology produced a revolution in human medicine, because of the availability, efficiency and low cost, which has raised a number of questions. Given that by applying CRISPR/Cas9 technology we can program our future children and extend their life expectancy, question is whether we should allow it. The point of the paper is to determine the limits of legal admissibility and ethical justification of this procedure, considering contemporary legal theoretical views, ethical values and social significance. Using normative, comparative and sociological method the authors analyze the impact of biotechnology development, in the context of genetic interventions, on redefining the regulatory framework. Critical consideration in the context of legal standardization of human genetic interventions and meeting the interests of all participants, has been identified as a core subject of research, which will be considered in accordance with a holistic approach to the realization of human rights.

• Ranko Sovilj [ Institute of Social Sciences, Belgrade, Serbia ]
• Sanja Stojković Zlatanović [ Institute of Social Sciences, Belgrade, Serbia ]

RULE OF LAW THROUGH THE MIRROR GLASS – IS THE NEW 2020 ENLARGEMENT METHODOLOGY A PRE-ACCESSION TEU ARTICLE 7 MECHANISM?The rule of law in the EU is a very complex concept due to its nature, different understanding and its diverse practical implementation, which has led to rule of law backsliding. In parallel, the rule of law represents a crucial pillar of the conditionality policy of new accession processes. The EU’s recent enlargement methodology introduced more stringent and conditional criteria for progress. This resulted in similarities between TEU Article 7 sanctioning mechanism and the new enlargement methodology that implies elaborate sanctions approach for candidate countries in cases of values’ breaches, backsliding, stagnation and lagging behind. The EU polity has, therefore, taken advantage of the empiric knowledge about the rule of law within its own borders and in the enlargement countries, constantly moving between the thin and the thick concept of the rule of law. The two processes have been feeding into each other, therefore, resulting in a growing convergence.

• Aleksandar Andrija Pejović [ Institute of Social Sciences, Belgrade, Serbia ]

THE LEGAL BALANCE BETWEEN LIBERTY AND EQUALITYThe paper explores the specific legal balance between liberty and equality, distinguishing it from political theories and constitutional settings, where they are often considered in opposition. In order to find the specific legal balance between liberty and equality, and after identifying some of their relevant meanings for the purpose, it becomes necessary to focus on the rule of law, and to examine the relationship between liberty and equality in its different versions. Once the core meaning of the rule of law in terms of liberty and equality is enucleated, it is possible to consider extending it to the international field.

• Isabel Trujillo [ Department of Law, University of Palermo, Palermo, Italy ]

Fifty Years of the Theory of Economic Regulation

• Boris Begović [ University of Belgrade Faculty of Law, Serbia ]

Lattmann, Christopher. 2019. Der Teufel, die Hexe und der Rechtsgelehrte. Crimen magiae und Hexenprozess in Jean Bodins „De la Démonomanie des Sorciers“, Studien zur europäischen Rechtsgeschichte, 318. Klos-termann: Frankfurt a. M., XVI + 390.

• Zoran S. Mirković [ University of Belgrade Faculty of Law, Serbia ]

Kahneman, Daniel, Olivier Sibony, Cass R. Sunstein. 2021. Noise: A Flaw in Human Judgement. New York, Boston, London: The Little, Brown Spark, 464.

• Nikola Ilić [ University of Belgrade Faculty of Law, Serbia ]

Straumann, Tobias. 2019. 1931: Debt, Crisis, and the Rise of Hitler. Oxford: Oxford University Press, 240.

• Boris Begović [ University of Belgrade Faculty of Law, Serbia ]

Cvetković Đorđević, Valentina. 2020. Negotiorum gestio u rimskom pravu s osvrtom na srpsko pravo. Beograd: Pravni fakultet Univerziteta u Beogradu, 122.

• Samir Aličić [ Law Department, State University in Novi Pazar, Serbia; University of East Sarajevo Faculty of Law, Sarajevo, Bosnia and Herzegovina ]