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Journal of Business Law 01/2022

ISSN: 0137-5490
Pages: 61
Publication date: 2022
Place publication: Warszawa
Binding: paperback
Format: A4
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DOI: 10.33226/0137-5490.2022.1.1
JEL: K23, G21, G51

The application of artificial intelligence in finance is one of the new issues which, in addition to regulatory challenges of hard law nature, raise ethical questions. This study deals with the subject of ethical aspects of the use of artificial intelligence in the financial sector, which is becoming more and more common, and therefore sometimes "invisible" to the end user. Examples of its use can be found, among others in risk assessment models or systems for detecting fraudulent transactions and counteracting money laundering and terrorist financing. Increasingly, they are also used to assess the creditworthiness of a potential borrower or provide investment advice. In the latter cases, transparency and ethics take on a special meaning, because they directly "touch" the human sphere and can significantly affect the observance of fundamental rights. At the same time, finding the "happy medium" that will not only balance various interests, but also be realistic to implement, is not an easy task. It is often emphasized in the literature that today there is no positive (any?) Effect on the implementation of many postulates in the field of ethical AI (Dubber et al., 2020), in connection with the use of various codes of ethics or good practices, which are more based on the so-called self-regulation or self-governance, that is, self-determination practices that are then audited by the settler. At the same time, the dynamic development of algorithms, especially those that make (to some extent) autonomous decisions, means that supervision — also ethical — cannot be temporary, but should be carried out continuously (Lo Piano, 2020), which only exacerbates the already existing problems related to algorithmisation.

Keywords: ethics; artificial intelligence; robo-advice
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DOI: 10.33226/0137-5490.2022.1.2
JEL: K20, K29

The campaign of vaccination against COVID-19 in the EU, launched at the turn of 2020 and 2021, is almost from the beginning accompanied by a discussion on the document confirming the fact of receiving the COVID-19 vaccine or having this disease and, consequently, obtaining immunity to the SARS-CoV-2 coronavirus infection. The proposal to introduce such a document, called an EU Digital COVID Certificate, was presented by the European Commission in March 2021. From the point of view of the EU internal market law, the substantive legal requirement to get vaccinated against COVID-19 for the purpose of cross-border use of various types of services, the fulfillment of which has been confirmed by an EU Digital COVID Certificate, is important. The aim of the paper is to examine whether the requirement to get vaccinated against COVID-19 by a citizen of an EU Member State wishing to use services offered in another EU Member State should be regarded as, in principle prohibited, restriction of the freedom to provide services in the EU. The conclusion that this is the case makes it possible to indicate the conditions which must be fulfilled for the requirement in question to be compatible with EU law.

Keywords: EU internal market; freedom to provide services; restrictive measures; vaccinations against COVID; vaccination certificates
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DOI: 10.33226/0137-5490.2022.1.3
JEL: K25, K11

The jurisprudence of many countries analyzes the problem of recognizing whether it is permissible for housing communities to adopt resolutions prohibiting the short-term rental of premises. It is generally accepted that the adoption of such resolutions is unacceptable. This view is also presented in the uniform line of jurisprudence of Polish courts presented in the article. In recent years, however, we can observe the emergence of jurisprudence recognizing that housing communities may pass resolutions prohibiting the use of premises located in the building for short-term rental. Such jurisprudence has developed in France and Portugal. These judgments and arguments presented in the justifications of the decisions are presented in the article. Their analysis proves that the process of searching for arguments supporting the admissibility of interference by housing communities in the ownership rights of individual owners of premises by prohibiting any use of the property in the name of protection of other values is underway. This process takes place with the use of various arguments, focusing, however, on the same dilemmas. These dilemmas concern two main issues. First, attempts to prioritize: protection of property rights, the right to inviolability of a home and the right to freedom of economic activity, where in particular the problem of whether short-term rental is an economic activity is considered. Secondly, to prioritize the protection of the property of the individual and the protection of the non-property interests of the collective.

Keywords: short-term rental; economic activity; housing community; condominium; ownership; personal rights
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DOI: 10.33226/0137-5490.2022.1.4
JEL: K33

The subject of this analysis is the institution of the permanent establishment in international tax law. The aim of the article is to present the versions of a service permanent establishment, developed by the OECD and the United Nations, and analyze the relations between the permanent establishment of this type and other types. Despite the general similarities, service permanent establishment models developed by the two largest international economic organizations are not identical. As far as their legal force service permanent establishment is identical to the other types of permanent establishment when introduced into double tax treaty. Service permanent establishment is independent and autonomous from the other types of permanent establishment. For its application by the tax authorities, it is therefore not necessary to apply other provisions. Service permanent establishment, however, can only be applied when no other permanent establishment provisions are applicable in a particular case. Considering on service permanent establishment from this perspective, it follows that it is ancillary under international tax law.

Keywords: international tax law; permanent establishment; OECD Model Convention; UN Model Convention
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DOI: 10.33226/0137-5490.2022.1.5
JEL: K00

Covering the process of computerization of individual stages of the procedure related to the awarding of a contract for the provision of services, supplies, construction work is identified with the issue of electronization of public orders. It has been recommended for many years and nowadays it is the subject of keen interest of not only law theorists and practitioners, but above all of public entities and entrepreneurs forming respectively contracting parties and contractors in public procurement procedures. The elements used in the process of defining public procurement electronically, which are specific to the computerization process and are primarily related to the admissibility of electronic transmission of certain documents and information, go beyond the scope of the stage related to the award of a contract. The aim of this article is a detailed definition of these elements of the process and the legitimacy of their interpretation as manifestations of public procurement electronization.

Keywords: computerization; electronization; public procurement; electronic invoicing
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DOI: 10.33226/0137-5490.2022.1.6
JEL: A10

The article is devoted to two issues. First, the concept of economic freedom and the constitutional rules for restricting it by the lawmaker are discussed. Secondly, the theory is confronted with legislative practice in Poland — three cases of profound state interference in economic freedom are analyzed: a ban on selling sweet and salty food in school tuck shops, a pharmaceutical privilege (only pharmacists can set up new pharmacies), imposing on Uber drivers and similar platforms a taxi license requirement.

Keywords: economic freedom; public interest; sweets ban in schools; "pharmacy for pharmacist"; lex Uber
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DOI: 10.33226/0137-5490.2022.1.7
JEL: K23

The subject of the gloss is a critical assessment of the resolution of the Supreme Court of July 9, 2019 (I NSZP 1/19). In the voted verdict, the Supreme Court accepted that the legislator provided for 56 sec. 1 point 12 Energy Law Act the sanction is of an administrative nature and its primary purpose is prevention. The Supreme Court also indicated that, in its opinion, the correct interpretation of the above-mentioned legal norm leads to the conclusion that imposing a fine on the concessionaire for failure to comply with the obligation arising from the concession is permissible also when this obligation arises not only (directly) from the content of the administrative decision itself, but also in a situation where it can be reconstructed from generally applicable law regulations related to licensed activities. In the opinion of the authors, these theses require in-depth, critical reflection — both in terms of erroneous and too superficial identification of the function (goal) of the above-mentioned sanctions with administrative prevention, and as to the questionable interpretation of the concept of ''the obligation arising from the concession''.

Keywords: administrative sanction; administrative fine; criminal sanction; concession; energy law
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