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Elte Law Journal Law_journal_1hasab_:press 2014.02.20. 15:35 Page 1 ELTE LAW JOURNAL 2013/1 ELTE LJ Budapest, 2014 Law_journal_1hasab_:press 2014.02.20. 15:35 Page 2 This issue was published with the support of the Hungarian Academy of Sciences. ELTE Law Journal, published twice a year under the auspices of ELTE Faculty of Law since 2013 President of the Editorial Board • Miklós Király Editor in Chief • Ádám Fuglinszky Editors • Balázs J. Gellér (Criminal Law) • Attila Menyhárd (Private Law) • Pál Sonnevend (Public International Law and European Public Law) • Réka Somssich (Private International law and European Commercial Law) • István Varga (Dispute Resolution) • Attila Vincze (Constitutional and Administrative Law) Advisory Board • Armin von Bogdandy (Heidelberg) • Adrian Briggs (Oxford) • Marcin Czepelak (Krakow) • Bénédicte Fauvarque-Cosson (Paris) • Erik Jayme (Heidelberg) • Herbert Küpper (Regensburg) • Ulrich Magnus (Hamburg) • Russel Miller (Lexington, Va) • Olivier Moreteau (Baton Rouge, LA) • Marianna Muravyeva (Oxford) • Ken Oliphant (Bristol) • Helmut Rüssmann (Saarbrücken) • Luboš Tichy (Prague) • Emőd Veress (Kolozsvár/Cluj) • Reinhard Zimmermann (Hamburg) Contact • [email protected] Eötvös Loránd University, Faculty of Law • 1053 Budapest, Egyetem tér 1-3, Hungary For submission check out our submission guide at www.eltelawjournal.hu All rights reserved. Material on these pages is copyright of Eötvös University Press or reproduced with permission from other copyright owners. It may be used for personal reference, but not otherwise copied, altered in any way or transmitted to others (unless explicitly stated otherwise) without the written permission of Eötvös University Press. Recommended abbreviation for citations: ELTE LJ ISSN 2064 4965 Editorial work • Eötvös University Press 1053 Budapest, Királyi Pál utca 18, Hungary www.eotvoskiado.hu Executive Publisher: András Hunyady, ELTE Eötvös University Press Layout: Tibor Anders Cover: Ildikó Csele Kmotrik Printed by: Multisztolg Bt. Law_journal_1hasab_:press 2014.02.20. 15:35 Page 3 Contents Foreword ..................................................................................................................................................5 Nóra Chronowski – Erzsébet Csatlós Judicial Dialogue or National Monologue? The International Law and Hungarian Courts ................................................................................7 Balázs J. Gellér Some Thoughts on the Changing Faces of Human Dignity in Criminal Law ........................29 András Koltay Elements of Protecting the Reputation of Public Figures in European Legal Systems ........53 Helmut Koziol Harmonising Tort Law in the European Union: Advantages and Difficulties........................73 Kurt Siehr Unidroit Convention of 1995 and Unclaimed Cultural Property without Provenance........89 Kinga Timár The Legal Relationship between the Parties and the Arbitral Institution ............................103 Law_journal_1hasab_:press 2014.02.20. 15:35 Page 4 Law_journal_1hasab_:press 2014.02.20. 15:35 Page 5 Contents Foreword When we try to sketch the intellectual coordinate system of our new legal periodical, ELTE Law Journal, several important dates may come into our mind, especially 1667, 1990 and 2004. The Faculty of Law of Eötvös Loránd University was established in 1667, almost 350 years ago. This is the oldest institution of this kind in Hungary and has preserved its leading role and academic excellence over the centuries. No other Hungarian Faculty of Law has a longer uninterrupted record, and it ranks well among the most venerable of Central Europe’s law schools in terms of distinction. This is the tradition and legacy which certainly determines our work in the future too. In 1990, the collapse of communist dictatorship and the former socialist block, the dissolution of the Warsaw Pact, the crisis in the state-controlled economy and the regained freedom created not only a new political and economic situation in Hungary but also brought new legal challenges: the historic task of creating a firm system of rule of law and providing the modern legal infrastructure for a smoothly functioning market economy. The first part of this mission was completed; the “revolution through law” – as the late President of the Republic, Ferenc Mádl, referred to the sweeping changes – was successful. However, the fine-tuning and maintenance of this system requires further attention and independent reflection from scholars as well. As the classical proverb warns us, eternal vigilance is the price of freedom. As a result of the transition, the European dream has come true as well. In 2004 – after long years of careful preparation – Hungary voluntarily joined the European Union. The tide of EU rules has reached the Hungarian legal system - even beyond the impact of the approximation of laws in the EU. Hungarian law has to be interpreted very often in the context of European rules. These dates – 1667, 1990, 2004 – and the related events clearly symbolise our main goals: launching a new legal periodical which is based on the tradition and outstanding quality of our University, offering a forum for studies reflecting the problems of contemporary law in modern democracies and devoting special attention to the European and international dimension of legal development. In other words, ELTE Law Journal sets out to contribute to the free movement of legal ideas in the European legal space and to support the full re-integration of Hungarian legal science into the mainstream of legal thinking. The establishment of ELTE Law Journal is part of a broader strategy of internationalisation, too. Our Faculty maintains wide-ranging international relations, primarily with universities in Europe, and is proud to be involved in educational and research projects with similar institutions abroad. In recent years we have placed special emphasis on consolidating ties with universities in neighbouring countries to promote intensive regional cooperation in legal education. We are proud to announce that in September 2013 the Faculty launched Hungary’s first LL.M. programme in European and International Business Law. These efforts are backed by a new generation of colleagues at our Faculty, many of whom completed their PhD or LL.M abroad. 5 Law_journal_1hasab_:press 2014.02.20. 15:35 Page 6 ELTE LAW JOURNAL • FOREWORD Remembering the incipient stage of this journal, and the months and days filled with many challenges, the Editorial Board would like to express its special thanks to Diána Mecsi, Krisztina Stump and Balázs Tőkey for their commitment to their work that proved invaluable to the Editor in Chief. The very first issue of ELTE Law Journal starts strongly, publishing papers with a characteristic cross-border approach: Balázs J. Gellér presents his thoughts on the changing faces of human dignity in criminal law in a comparative study. Helmut Koziol offers a paper on harmonising tort law in the European Union, while Kurt Siehr has written on the Unidroit Convention of 1995 and unclaimed cultural property without provenance. Both professors are honorary doctors and professors of Eötvös Loránd University. Nóra Chronowski and Erzsébet Csatlós meditate on the interface between International Law and Hungarian courts, András Koltay delivers an analysis on protecting the reputation of public figures in the European legal systems and our young colleague Kinga Timár reviews a number of arbitration laws and rules while investigating the relationship between the parties and arbitral institutions. With the abundant wealth of legal ideas reflected by this short overview, the editors launch ELTE Law Journal, asking for the benign interest and support of our dear readers. Budapest, 6 December, 2013. Ádám Fuglinszky Miklós Király István Varga Editor in Chief President of the Editorial Board Editor Dean of ELTE Faculty of Law Vice Dean for Scientific Affairs 6 Law_journal_1hasab_:press 2014.02.20. 15:35 Page 7 Contents Nóra Chronowski* – Erzsébet Csatlós** Judicial Dialogue or National Monologue? The International Law and Hungarian Courts*** I Introduction The focus of this study is the application of international law by the Hungarian Constitutional Court and ordinary courts. The purpose of the paper is to reveal whether there is any judicial dialogue or just a national monologue in this field. To achieve this aim, after an overview of the constitutional and legal framework (II), the application of the international treaties (III), international customary law and other sources of international law (IV) will be analysed, and also the interpretation of domestic law in the light of international obligations will be investigated (V) with special regard to ‘judicial dialogue’ (VI). The importance of the question is underpinned by the fact that the Hungarian constitutional system has been – again – in transition since 2010 and the common standards of the international community – such as rule of law, protection of fundamental rights and democracy – seem to be at risk because of the permanent revision and changes of legal norms, amendments to the constitution and legal uncertainty. However, it may be presupposed that the judicial practice on the application of international law and the judicial dialogue with international courts could balance the aforementioned process, if judges are aware of its significance and are open to international law. Common values of the European constitutional states governed by the rule of law are enshrined in international
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