Within the context of the insurable interest in cargo insurance contracts, in this publication the writer analyses the theoretical aspects of the insurable interest and the relevant laws. Dealing with the problems of determining the insurable interest in cargo insurance contracts the writer has examined the possible options of insurance of the cargo in transit, and while analysing the law governing transport and the sale of goods he examines a person‘s insurable interest in the cargo insured and legal remedies to (...) protect such an interest by concluding a cargo insurance contract. The writer believes that the legal regulation of the insurable interest in Lithuania, interpreting the insurable interest as a loss sustained by a policyholder, the insured or the beneficiary upon an event insured against, fails to guarantee the protection of proprietary and economic interests of persons engaged in the circulation of commodities. Laws governing cargo insurance contracts in Lithuania do not provide a flexible protection of interests of the participants in trade operations and impedes the development of trade and transit, therefore the legal regulation of cargo insurance, especially of the insurable interest should be improved. (shrink)

This article deals with the ordering of interim measures in the arbitration process. Under the Lithuanian law, only one interim measure can be applied by commercial arbitration courts. It involves granting an order to pay the established amount as a deposit. This measure cannot be enforced unless the party acts in good faith and agrees to pay the deposit. However, if a party ignores the decision of the arbitration court, a third party court may apply to the state court with (...) a request to order interim measures provided for in the Lithuanian Code of Civil Procedure. Under the existing Lithuanian legislation, state courts have the exclusive right to order enforceable interim measures. The present situation is not satisfactory and should be changed. The legislator is now considering a new draft law on the Lithuanian commercial arbitration. The draft law provides for changes in ordering interim measures. The proposed regulation is in compliance with the goals of Article 17 of UNICITRAL Model Law on Commercial Arbitration. However, compliance with the rules of UNCITRAL is not the main goal of the proposed regulation. With the new regulation, the legislator aims for more efficient commercial arbitration with more extensive scope that will allow the commercial arbitration court to order interim measures independently. By allowing the commercial arbitration court to order interim measures independently, the legislator extends credibility of arbitration and makes it more inviting for the parties. Under the draft law on the Lithuanian commercial arbitration, state courts and commercial arbitration courts as discretionary institutions shall be entitled to order interim measures. On the other hand, a decision or a ruling of the commercial arbitration court shall be enforced if an execution order is issued by the state court. In this case, the state court shall be entitled to review whether the content of the decision or ruling of the commercial arbitration court complies with the imperative rules of law or public order. According to the proposed draft law on the Lithuanian commercial arbitration, both state and commercial arbitration courts shall have an independent right of discretion to order interim measures. However, some differences exist. In cases heard by commercial arbitration courts interim measures shall be ordered, whereas state courts acting under applications for interim measures filed by the parties or commercial arbitration courts, irrespective of the location of the arbitration process, shall be entitled to order interim measures. (shrink)

Arbitration and insolvency proceedings are legal instruments governed by different objectives and different legal principles. While in arbitration the autonomy of the parties plays a major role, all insolvency proceedings are collective proceedings where autonomy of the parties is strictly limited, the majority of issues are regulated by binding legal provisions and strong controlling powers are vested into insolvency court. Therefore, in this article the authors analyse the issues of compatibility between insolvency proceedings and arbitration. The Lithuanian legal framework which (...) was in force until 30 June 2012 was ambiguous. According to the wording of Article 11 of the previous Law on Commercial Arbitration, disputes connected with bankruptcy shall not be submitted to arbitration. It was not entirely clear whether this provision was restricted to ‘core’ insolvency issues such as opening and conduct of the proceedings, appointment of the office holder, administration of the estate, liquidation etc. or it also included all other questions related with insolvency. The jurisprudence of the Lithuanian courts gave a broad meaning to the restriction expressed in the Law on Commercial Arbitration. Accordingly, such questions as verification of claims and disputes with the creditors were also excluded from arbitration after announcement of bankruptcy of the debtor. The authors argue that distinction should be drawn between cases in which an insolvent enterprise is a claimant and where it is a defendant. It is also important to draw a line between arbitration agreements entered into before announcement of bankruptcy and arbitration agreements concluded by the bankruptcy trustee with the consent of the majority of creditors. In this article, the new Law on Commercial Arbitration which has entered into force on 30 June 2012 is analysed and according to which an insolvent enterprise remains bound by arbitration agreement in both cases where it is a claimant and where it is a defendant. Several contentious issues of the new law are identified and analysed in the article, such as the position of other creditors in the proceedings, relation between arbitration and restructuring procedure, enforceability of arbitration agreement in cases where an insolvent enterprise lacks funding to pay arbitration costs etc. (shrink)

The text is the editor’s introduction to the articles of this scientific journal Philosophy. Sociology, thematically divided into four sections: Philosophy of Technology and Ethics of Technology, Social Philosophy and Philosophy of Communication, Philosophy of Art and Art Communication, Phenomenology and Existential Philosophy. This article also aims to problematise the concepts of culture and technology and present one of the conceptual approaches when considering cultural and value differences in the conditions of technological globalisation. From the author’s perspective, although technology provides (...) tools for effective human activity and technological progress influences different societies and their interactions, technological solutions alone cannot eliminate or neutralise the cultural, mentality, moral, or simply value differences of different societies. (shrink)

In a narrow sense, the formalistic conception of art cannot range and explain a wide variety of contemporary art phenomena. In a wide sense, formalism – rejecting the reductionist definition of the essence of art, involving the conceptual dimension of the artwork, and expanding the dimension of sensibility – becomes a productive philosophical art theory allowing one to explain and investigate some part of the contemporary art (modern and postmodern) phenomena. In the expanded conception, the basic principles of aesthetic formalism (...) include a wide scale of the principles of the creation and comprehension of the artwork – from an abstract form (perceived by senses) to a conceptual form. The article gives an illustration of these principles discussing abstractionism and surrealism as two different types of the contemporary formalistic visual art. (shrink)

Straipsnyje apžvelgiama mokslinė konferencija „(Post)tiesa ir žinojimas filosofiniu, sociologiniu ir komunikaciniu požiūriu“, įvykusi Lietuvos mokslų akademijoje. Kon­ ferencijoje nagrinėtos temos: tiesa ir posttiesa Rusijoje, žmogaus tapatumas medijo­ se, tiesos problema Martino Heideggerio filosofijoje, techninės posttiesos galimybės sąlygos, pedagogika (post)tiesos sąlygomis, nesutarimo etika ir diplomatija bei racio­ nalumų įvairovė, politinis veikimas posttiesos sąlygomis, politinis ethos, posttiesos apraiškos medijose ir propagandoje, sąmokslo teorijos ir posttiesos santykis, taip pat analizuota posttiesos būklė per žaidimo fenomenologijos prizmę ir kt. Straipsnyje ap­ tariamos pagrindinės konferencijos pranešėjų (...) mintys, su kai kuriomis jų polemizuoja­ ma, apžvelgiami svarbesni diskusijų momentai. (shrink)

The author of the article analyzes the constitutional doctrine of the dismissal of a judge from office upon the expiration of the term of powers. The author discusses the guarantees of the independence of courts and judges, one of which is the guarantee of the inviolability of the length of powers of judges. The previously valid Law on Courts used to provide that the President of the Republic could appoint a person as a judge of a local court when such (...) an appointment is made for the first time, for a five-year term, and that upon the expiration of the five-year term, the President of the Republic could appoint such a person as a judge of a local court without examination or selection until the person reaches the age of 65. Under the Law on Courts valid at present, judges of all courts are appointed at once for the term until they reach 65 years of age. It is asserted in the article that the Constitution of the Republic of Lithuania has not established the right of a person, who was for the first time appointed as a judge of a local court for a five-year term, to be appointed as a judge until he reaches 65 years of age. (shrink)

The article deals with the criteria upon which the powers of the Seimas (the Parliament of the Republic of Lithuania) and the Government are delimited in the constitutional jurisprudence of Lithuania. It analyses how the Constitutional Court construes the principle of separation of powers as entrenched in the Constitution and evaluates the meaning of the provision of the Constitution that corresponding ‘relations are regulated by law’. If the Constitution provides that certain relations are regulated by means of a law, such (...) relations may be regulated only by means of a legal act, which takes the form of a law, and it is, therefore, not permissible to regulate such relations by Government resolutions or other acts of the executive. The most important elements of legal relations must be regulated (established) by means of a law, whereas Government resolutions might establish the procedure for the implementation of such laws. Rulings of the Constitutional Court reveal that once the powers of a specific branch of state power have been directly established in the Constitution, an institution of state power may not assume the said powers fr om another state institution. It may not transfer or waive them; and such powers may not be amended or limited by means of a law. The question remains, whether the provision of the Law on the Diplomatic Service wh ereby the candidacy of a diplomatic representative must be reviewed by the Seimas Committee on Foreign Affairs in advance is not in conflict with the Constitution. (shrink)

After the Provisional Basic Law (Provisional Constitution) had been adopted on 11 March 1990, it soon became clear that it did not meet the new needs of the society and the state. It became clear that the new Constitution had to be drafted promptly. Its drafting was taking place at the time of heated discussions about various things, but especially about the structure of branches of state power, the empowerment thereof and their interrelations. The author of the article was a (...) member of the working group drafting the new Constitution. In his article, the author presents passages from the notes made by him about the sittings of the Provisional Commission for Drafting the Constitution and those of its working group. The notes disclose the variety of the views of the deputies and legal specialists and show the difficult way of emergence of the draft Constitution. This is confirmed by the time-line of drafting the Constitution. In 1990 and at the beginning of 1991, the first draft Constitutions were published, which had been drafted by the members of the societies of Lithuanian philosophers and lawyers, by the Lithuanian Democratic Labour Party, etc. Prior to the resolution of the Supreme Council of the Republic of Lithuania of 7 November 1990, a group of deputies was formed for drafting an outline of the concept of the Constitution. On 22 October 1991, the Council of the Seimas of the Lithuanian Sąjūdis Movement made a statement “On the Restoration of the Institution of the President of the Republic”. On 5 November 1991, the Supreme Council of the Republic of Lithuania adopted a Resolution “On the Development of the Lithuanian Constitutionalism”, whereas by its resolution of 10 December 1991 it formed the Provisional Commission for Drafting the Constitution. On 3 March 1992, the said Provisional Commission approved the draft Constitution that it prepared; it was submitted to the Supreme Council. Three members of the Provisional Commission had submitted alternatives to a number of articles of the Constitution. On 21 April 1992, the Supreme Council assented to the work done by the Provisional Commission and decided to publish the draft Constitution so that it could be discussed by the public. On 6 May 1992, the Lithuanian Sąjūdis Movement, the Democratic Party, the Christian Democratic Party, and the Lithuanian Nationalist Union formed a coalition for drafting an alternative draft Constitution; soon the press published the alternative draft Constitution prepared by the Sąjūdis Movement Coalition “For the Democratic Lithuania”. On 23 May 1992, the referendum on the restoration of the institution of the President of the Republic took place—that referendum did not approve the proposal. Thus, two alternative draft Constitutions appeared. The essential difference between those drafts was a different approach to the system of branches of state powers, their empowerment and their interrelation. The draft Constitution prepared by the Provisional Commission was based on the parliamentary republic form of governance, whereas in the draft prepared by the Sąjūdis Movement Coalition “For Democratic Lithuania” the model of half-presidential republic was dominant. In order to prepare a single draft Constitution, which could then be proposed for the referendum of the Nation, political and legal compromises were sought. For this purpose, the Group for the Adjustment of Constitutional Issues was formed. At the end of September and at the beginning of October 1992, one single (the so-called “compromise”) draft Constitution was prepared from the existing two alternative drafts. The Constitution of the Republic of Lithuania was adopted by the Nation in the referendum of 25 October 1992 and came into force on 2 November 1992. (shrink)

Under Article 63 of the Constitution, a gross violation of the Law on Elections to the Seimas is one of the grounds for discontinuation of the powers of the Member of the Seimas. The Constitution does not reveal expressis verbis as to what is a gross violation of the law on election. The establishment of this is within the discretion of the legislator. While defining what a gross violation of the Law on Elections to the Seimas is, the legislator is (...) bound by the norms and principles of the Constitution. Although the Constitution does not define expressis verbis as to what a gross violation of the law on election is, the fact that, under Item 6 of Article 63 of the Constitution, the powers of a Member of the Seimas shall cease on this ground, implies at least several things: first, not every violation of the law on election can be regarded as a gross one, thus, if the law on election has not been grossly violated, it is not permitted on this ground to recognise that the Member of the Seimas lost his mandate, or that the powers of the Member of the Seimas ceased; second, only such violations may be regarded as gross ones, upon commission of which there appear reasonable doubts whether during the election the genuine will of the voters was expressed, whether their will was not distorted to the extent that the results of the election do not reflect the genuine will of the voters and the mandates of Members of the Seimas have been distributed unfairly. (shrink)

The article deals with the legal acts which were adopted by the Supreme Council Reconstituting the Seimas of the Republic of Lithuania on 11 March 1990, and which are related to the restoration of the independent State of Lithuania. The author discloses the chronology of the legal acts adopted on that day and investigates why some particular act was adopted first, and only later another act was passed; he investigates the circumstances which determined the content of the legal acts and (...) shows the interconnection between these acts. The sequence and content of the legal acts of restoration of independence were determined by the fact that the independent State of Lithuania could not arise from the so-called “Lithuanian SSR” which had never been a form of Lithuanian statehood. The restoration of independence could and had to be grounded only upon the continuation of the pre-war Republic of Lithuania. One had to draw a boundary line between the Supreme Soviet of the Lithuanian SSR, which was elected in democratic and free elections on 24 February 1990, and which was a genuine representation of the Nation, from the former Supreme Soviets of the Lithuanian SSR—the essence and formation procedure of which was completely different. This was done by adopting the Declaration “On the Powers of the Supreme Soviet of the Lithuanian SSR” in which it was held that in the 24 February 1990 elections the Nation vested to the deputies of the Supreme Soviet of the Lithuanian SSR the mandate and the duty to restore the State of Lithuania and express the sovereign will of the Nation through this body, which, from 11 March 1990, 6 p.m., would be referred to as the Supreme Council of Lithuania. (shrink)

Under Article 74 of the Constitution, for gross violation of the Constitution or breach of oath, or if it transpires that a crime has been committed, the President of the Republic may be removed from office under procedure for impeachment proceedings. In the article the content of the constitutional delict is analysed. The President of the Republic may be brought to constitutional responsibility only for the actions which he committed while in office of the President of the Republic. The President (...) of the Republic may be removed from office not for any violation of the Constitution, but only for gross violation thereof. While implementing the powers established to him in the Constitution and laws, the President of the Republic may not breach the oath. Under Article 74 of the Constitution, the President of the Republic may be removed from office “if it transpires that a crime has been committed” – this provision means that the Constitution provides for the right of the Seimas to remove the President of the Republic from office in the absence of a court judgement recognising that the President of the Republic is guilty of commission of a crime. The Constitution commissions only the Constitutional Court to establish the fact of violation of the Constitution – whether there has been a gross violation of the Constitution and breach of oath by actions of the person. The Seimas may not change or question the conclusion of the Constitutional Court. On the grounds of the conclusion of the Constitutional Court that the actions of the President of the Republic are in conflict with the Constitution, it is only the Seimas that decides whether to remove the President of the Republic from office. The removal of the President of the Republic from office under procedure of impeachment proceedings due to a suspicion that the crime has been committed is not binding upon a court of general jurisdiction which considers the criminal case. (shrink)

The article deals with the doctrine of the returning of the powers of the Government upon the election of the President of the Republic formulated in the Constitutional Court ruling of 10 January 1998. Attention is focused on the arguments of the Constitutional Court upon which this doctrine is based–these are the arguments regarding the expression of no-confidence in the Prime Minister and the new empowerment of the Government (after more than a half of the ministers are changed). In the (...) opinion of the author, some of such arguments are subject to discussion. The constitutional regulation regarding the returning of the powers of the Government upon the election of the President of the Republic is inexhaustive and unclear. Although the wording of the provisions of the Constitution regarding the returning of the powers of the Government after the elections of the Seimas and after the elections of the President of the Republic is almost the same, there is one essential difference: the Constitution provides that after the elections of the Seimas the Government must return its powers to the President of the Republic and must resign, whereas the Constitution does not provide that the Government must resign after the elections of the President of the Republic as well. (shrink)

There are some problems in the implementation of rulings of the Constitutional Court. The legislator should make more efforts for implementing the concept of the provisions of the Constitution provided in the reasoning parts of rulings of the Constitutional Court. The Statute of the Seimas should be supplemented with provisions obligating structural sub-units of the Seimas to carry out permanent and systemic analysis of reasoning parts of rulings of the Constitutional Court. It would allow timely to prepare proposals how to (...) amend still unchallenged legal regulation which, however, from the constitutional standpoint is doubtful. One should consider whether the norm of Item 4 of Paragraph 1 of Article 64 of the Law on the Constitutional Court, which allows one to challenge the compliance of a legal act with the Constitution on the grounds of the procedure for adoption regardless of any terms expired after the adoption of a law or other legal act, should be amended. It is to be presumed that the principles of legal certainty and legal security entrenched in the Constitution, as well as other constitutional provisions, imply a certain reasonable period of time within which the subjects provided for in the Constitution may apply to the Constitutional Court with a petition requesting to investigate whether a law or other legal act is not in conflict with the Constitution according to the procedure of their adoption. This period of time should not be a long one, for example, half a year or a year since the official publishing of the law; this term should be a prescriptive one–after it has finished, it would not be allowed to challenge the compliance of a law or other legal act with the Constitution according to the procedure of their adoption. In order to speed up the consideration of cases at the Constitutional Court, one would have to change the procedure of consideration of cases in this Court in essence. (shrink)