European Journal of Law Reform

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Issue 3-4, 2022 Expand all abstracts

Access_open The Principle of Energy Solidarity in European Union Law

Nord Stream 2 as a Common Thread

Keywords European Union, Gas European market, Principle of energy solidarity, Nord Stream 2
Authors Luís Felipe Borges Taveira and Daniel Campos de Carvalho
AbstractAuthor's information

    Changes in the European natural gas market that were planned to enable the installation of the Nord Stream 2 gas pipeline are wrapped in a regulatory dome. Gazprom, a Russian state-owned company, is concerned with demonstrating that the project is compatible with European integration. The legal debate expands when it becomes clear that political, regulatory and legal institutions, such as the Court of Justice of the European Union, use the principle of energy solidarity to justify European action in this market and its application at the national level. The general hypothesis to be answered is: does the principle of energy solidarity satisfy the European pretensions about the gas pipeline? Through a documental and bibliographical research, the supranational norms and jurisprudence on the gas market will be adopted as a starting point; later on, an analysis of the judicial decisions on the extension of the competence of the European norms and a theoretical assessment of the principle of energy solidarity will be conducted.

Luís Felipe Borges Taveira
Luís Felipe Borges Taveira, Master’s student in Law at the Faculty of Human and Social Sciences (FCHS) of the São Paulo State University (UNESP), campus Franca, e-mail luis.taveira@unesp.br, Lattes iD http://lattes.cnpq.br/2784572759156523, Orcid iD https://orcid.org/0000-0002-0104-6276, financed by: CAPES.

Daniel Campos de Carvalho
Daniel Campos de Carvalho, Adjunct Professor C, III at the Federal University of São Paulo (Unifesp), Professor of the Graduate Program in Law – PPGDIREITO/UNESP/FRANCA and Professor of the Graduate Program in International Relations – PPG-PRI/UFABC, e-mail dccarva@uol.com.br, Lattes iD http://lattes.cnpq.br/0250387190883006, Orcid iD https://orcid.org/0000-0002-0861-5873. This study was financed in part by the Coordenação de Aperfeiçoamento de Pessoal de Nível Superior – Brasil (CAPES) – Finance Code 001.

Access_open Colonial Legacy of Pakistan and Genesis of a New Constitution

Legitimacy of Power, Land Ownership and the Enlightenment

Keywords British colonialism, Zamindari system, Sufism, French Enlightenment, social contract
Authors Zia Akhtar
AbstractAuthor's information

    The state of Pakistan came into being in 1947 after inheriting the laws of the British colonial rule based on a framework that has allowed the land-owning stakeholders to compete for influence and power. The constitution of the country has been reconfigured to suit its rulers, including the military in power and the largest constituency is the land-owning class which maintains its presence in all the elected assemblies that have formed the legislature in Pakistan. The ideological underpinning and the electoral system have been inherited from the British rulers and with it the zamindari system also which provides the landed gentry its power base. The issue is to what extent is the feudal system tilted towards maintaining the status quo that gives those in the land-owning class their privileged status. The power of the nobility known locally as the jagirdars command a mystical allegiance drawn from their privileges of birthright. This article defines the colonial legacy that has permeated the constitutional framework through laws instituted by British rule which persists in the corridors of the legal and political hierarchy. The argument presented is that Pakistan has to sever its colonial inheritance and emerge as a redefined state by adopting the intellectual preamble of the French Enlightenment that will bring about a revised system that can also be sustained in the light of dispensation based on a social contract.

Zia Akhtar
Zia Akhtar, University of London, Grays Inn, Coventry University.

Access_open An Ex Post Impact Assessment of Municipal Restructuring in Finland

What Can We Learn?

Keywords business activities, comprehensive schooling, ex post impact assessment, municipal mergers, productivity
Authors Niko Vartiainen
AbstractAuthor's information

    A law-drafting process and decision-making should be based on a proper evidence base of the costs and benefits of different regulatory options. Too often, however, regulatory processes lack an adequate scientific evidence base to carry out decent impact assessments. One important and useful way to strengthen the evidence base for forthcoming regulatory reforms is to accomplish ex post impact assessments of past reforms. The necessity for ex post impact assessments has been apparent, for example, in the local government sector, as in several countries the regulator has considered municipal mergers as a panacea for improving the financial position of local governments. In this study, an ex post impact assessment of Finnish municipal structure regulation is conducted. More precisely, the study analyses the impacts of Finnish municipal mergers that were accomplished during the so-called PARAS reform, which took place between 2007 and 2013. The impact assessment is focused on examining the achievement of the objectives set for the PARAS reform in terms of expenditures and vitality. The impacts of the mergers are analysed using the Difference-in-Differences (DiD) methodology on two previously quite unexplored fields in merger literature: business activities (vitality) and comprehensive schooling (expenditures). The results reveal that municipal mergers have not caused any expenditure-moderating and productivity-enhancing effects on comprehensive schooling and no positive effects on the location decisions of business activities. In summary, municipal mergers are not the proper regulatory alternative to moderate the expenditure growth of municipalities, nor do mergers turn municipalities more attractive for residents and businesses and enhance vitality in this manner.

Niko Vartiainen
Niko Vartiainen, PhD, University of Eastern Finland, University Lecturer, Legislative studies, UEF Law School, email: niko.vartiainen@uef.fi

Access_open The Impact of Speed and Accuracy in Personal Injury Cases

A Law and Economics Analysis

Keywords Abstract damage assessment, accuracy, concrete damage assessment, damage averaging, law and economics, personal injuries, speed
Authors Michael G. Faure, Louis Visscher and Franziska Weber
AbstractAuthor's information

    In various countries, initiatives have been taken to speed up the process to provide compensation to victims of personal injury. There are some concerns that speeding up the process (inter alia via alternative dispute resolution mechanisms) may go at the expense of accuracy. Within this paper, we use a law and economics framework to show that generally accuracy in individual cases comes at high costs but is less important than often thought. Neither from a deterrence, nor from a compensation perspective is perfect accuracy in each individual case the necessary aim to strive for. As long as the injurer is held to pay compensation that is on average correct, the right behavioral incentives are provided for both tortfeasors ex ante. Also victims are generally appreciative of averaging compensation payments. We discuss recent developments in claims handling in Belgium, Ireland and Sweden, showing how these countries have attempted to speed up victim compensation (and therewith increased victim satisfaction) and how these processes have been facilitated by a standardization of the compensation payments. We argue that the experiences in these countries show that speeding up compensation to victims is indeed possible and that the reduction of accuracy in specific cases (resulting from a standardization of the compensation) is not problematic, neither from the deterrence, nor from the compensation perspective. Cautious policy conclusions in awareness of the lack of a one-size-fits-all-approach are formulated.

Michael G. Faure
Michael G. Faure, Rotterdam Institute of Law and Economics, Erasmus School of Law Rotterdam and Maastricht University.

Louis Visscher
Louis Visscher, Rotterdam Institute of Law and Economics, Erasmus School of Law Rotterdam.

Franziska Weber
Franziska Weber, Rotterdam Institute of Law and Economics, Erasmus School of Law Rotterdam.

Access_open A Critical Evaluation of the Effectiveness of Grenada’s Legislative Responses to the COVID-19 Pandemic

Keywords Grenada, legislative quality, effectiveness test, COVID-19 regulation, emergency laws
Authors Arya Redhead
AbstractAuthor's information

    The extent to which nations have been adequately equipped to deal with the severity of the COVID-19 pandemic and its ensuing fallout has been hotly contested, and the legislative responses of states have varied. This article aims to conduct an evidence-based assessment of how well Grenada’s legislative responses to the COVID-19 pandemic performed the objectives they set out to achieve, identifying any changes that occurred, the extent to which these changes were influenced by the legislation or by other non-legislative factors and the primary actors affected by these changes. This assessment features and tests Mousmouti’s criteria of legislative quality, collectively characterized as the ‘effectiveness test’, which evaluates legislative purpose, structure, content and results.

Arya Redhead
Arya Redhead, LLM (London) is a legislative drafting consultant and legal drafter within the Office of the Attorney-General in Grenada. Email: arya_redhead@hotmail.com.

Access_open The Quality and Constitutionality of Enabling Provisions in Legislation in St. Kitts and Nevis

Keywords quality, constitutionality, delegated legislation, enabling clause
Authors Michelle Jan Saurie Slack
AbstractAuthor's information

    Notwithstanding historical arguments surrounding the constitutionality of the delegation of legislative power, the practice is now an accepted feature of the legislative process in St. Kitts and Nevis to the extent that it is more likely than not that laws are passed which include provisions enabling ministers or other senior public officials to make subsidiary legislation. The Eastern Caribbean Supreme Court has considered the question of the constitutionality of the delegation of legislative power and has ruled that the practice is ‘not unconstitutional per se’. The critical question is, what makes it constitutional or not and what is necessary to ensure that the making of subsidiary legislation is within the bounds of the Constitution. Stated otherwise, what is necessary to ensure an effective enabling clause?
    This article highlights how it is necessary to include measures within enabling clauses that circumscribe the exercise of delegated legislative power and require parliamentary oversight of the making of subsidiary legislation. By so doing, the quality of enabling clauses in St. Kitts and Nevis legislation can be greatly improved.

Michelle Jan Saurie Slack
Hon. Michelle Jan Saurie Slack LL.B (Hons) UWI, LEC, LL.M (Institute of Advanced Legal Studies, London) (Dist.), email: michellejslack@gmail.com.

    The rule of law is a universally accepted concept. While the rule of law is indeterminate in nature as a concept, it is now possible to identify accepted principles of the rule of law. This article argues that the use of and adherence to Grant Thornton’s five stages of the drafting process in drafting legislations promotes and safeguards many accepted principles of the rule of law in the Commonwealth Caribbean.

Shaquille K. Newton
Shaquille K. Newton, LL.B. (Hons) LL.M. (UWI), LL.M. (London), LEC (HWLS), Attorney-at-Law, email: shaquillenewton1811@gmail.com. He is employed as Legislative State Counsel in the Office of the Attorney General of Barbados and was awarded the LL.M. in Drafting Legislation, Regulation and Policy with Distinction from the Institute of Advanced Legal Studies, University of London. The views and opinions contained in this article are those of the author and do not necessarily reflect the views and opinions of any entity which they represent.