Ejlr_2016_cover_large
Rss

European Journal of Law Reform


About this journal  
Issue 3-4, 2010 Expand all abstracts
Article

Does Business Ethics Need Religion?

Keywords ethics, religion
Authors Edward J. Alam
AbstractAuthor's information

    Although ‘Secular Ethics’ maintains that it is possible to be ethical and moral without religion, history and nature testify to the contrary. Even the trend in business ethics is to recognize the need for stable standards when measuring the good; and more and more business professionals argue for benchmarks of ethics per se rooted ultimately in values that stem from genuine religion.


Edward J. Alam
Edward J. Alam is Associate Professor at Notre Dame University, Louaize, Lebanon.
Article

The Right to Food

Keywords food crisis, right to food
Authors Ying Chen
AbstractAuthor's information

    With the development of society, new agricultural technologies have been widely introduced and effectively applied to agricultural cultivation. Agricultural productive capacity has greatly improved and the world’s food producers are capable of providing all the people on this planet with sufficient food to satisfy everyday dietary needs for a healthy life. Ironically, food insecurity continues to be a critical issue in the contemporary world. More than 923 million people suffer from chronic hunger, malnutrition or related diseases, and this number grows with continually rising food prices. This article responds to the current food insecurity by addressing a new issue: is there any legal basis for both the international community and national governments to protect vulnerable people from hunger and malnutrition?


Ying Chen
S.J.D. Candidate, LL.M., Indiana University School of Law Indianapolis.
Article

Use of Force by International/Regional Non-State Actors: No Armed Attack, No Self-Defence

Keywords force, states, non-state, security, organisations
Authors Amos O. Enabulele
AbstractAuthor's information

    Contemporary literature on the use of force has been saturated with arguments and counter arguments relating to the extant regime of the use of force as it should relate to non-state actors. The discussions have however proceeded on the assumption that the problem of the unregulated use of force by non-state entities is limited to group of persons – unorganised non-state actors – pursuing legitimate or non-legitimate agenda. The arguments seems to overlook the existence of a group of States (organised non-state actors) – international organisations – which pose even greater threat to the Charter paradigm of the use of force than unorganised non-state actors. This article discusses the Charter regime on the use of force with particular attention to organised non-state actors and the challenges they posed to the prohibition of the use of force.


Amos O. Enabulele
Amos O. Enabulele LL.M, BL is Lecturer at the Department of Jurisprudence & International Law, Faculty of Law, University of Benin, Nigeria and a Ph.D. candidate at Brunel University, West London.
Article

The ECJ Ruling in Cartesio and Its Consequences on the Right of Establishment and Corporate Mobility in the European Union

Keywords Cartesio, right of establishment, Corporate mobility
Authors Prof. dr.sc. Siniša Petrović and Tomislav Jakšić
AbstractAuthor's information

    Before Cartesio, the case law of the European Court of Justice on freedom of establishment mainly considered company immigration situations, i.e. legal entities moving into another Member State. Cartesio is the first major ruling on company emigration since the 1988 decision in Daily Mail. Consequently, much was expected from Cartesio, notably that it would confirm a company’s right to directly invoke its freedom of establishment in emigration scenarios. However, this was not the case. Although Cartesio introduced some new concepts into the freedom of establishment case law like the concept of company conversion, the freedom of establishment actually took a step backward. This effectively resulted in almost complete disregard of the freedom of establishment in emigration situations - unlike in immigration situations. This partial denial of freedom of establishment, one of the fundamental freedoms of Community law, would seem urge the continuation of work on the new 14th Company Law Directive. In light of the current ECJ case law, only a legislative approach would seem suitable to guarantee non-discrimination in the ongoing regulatory competition between Member States which apply the registered seat theory and those which apply the administrative (real) seat theory.


Prof. dr.sc. Siniša Petrović
Prof. dr. sc. Siniša Petrović is a full professor at the Faculty of Law of the University of Zagreb.

Tomislav Jakšić
Tomislav Jakšić is a Junior Researcher at the Faculty of Law of the University of Zagreb.
Article

The Politics of Demand for Law: The Case of Ukraine’s Company Law Reform

Keywords company law, Ukraine, legislative process, veto players, external pressures
Authors Dr. Rilka Dragneva and Dr. Antoaneta Dimitrova
AbstractAuthor's information

    This article explores the dynamics between external and domestic factors in legal reform in transition countries as demonstrated by the case of Ukrainian company law reform. Contrary to theoretical explanations pointing to the primacy of external supply and incentives, we locate the determinants of legal change firmly in the domestic arena. We conceptualise domestic factors using a political science framework regarding the role of veto players parliamentary factions and related informal business actors. The analysis supports the critical law and development literature in underlying the importance of the demand for law by such players. This demand, however, affects not just the implementation process but is critically expressed in the strategic use of formal legislative reform.


Dr. Rilka Dragneva
Rilka Dragneva is a Senior Lecturer in Law at the School of Law of University of Manchester, United Kingdom.

Dr. Antoaneta Dimitrova
Antoaneta Dimitrova is a Senior Lecturer at Institute for Public Administration at Leiden University, The Netherlands.
Article

The Accommodation of Minority Customs in Sweden

The Islamic Law of Inheritance as an Example

Keywords multiculturalism and law, private international law, Islamic law of inheritance
Authors Dr. Mosa Sayed
AbstractAuthor's information

    Sweden, as well as many of the other member states of the European Union, has transformed into multicultural societies. In these increasingly culturally differentiated societies demands are raised by immigrant groups for the recognition of their cultural identity and uniqueness. Minority customs may in some cases conflict with fundamental values in the state law. In this article the author is elaborating on the Swedish private international law rules and the multicultural dilemma in relation to the Islamic law of inheritance, which is often considered to belong to those areas of the Islamic law that express principles that are incompatible with the core values of Swedish law.


Dr. Mosa Sayed
Mosa Sayed is Doctor of Laws at Faculty of Law, Uppsala University and researcher within the multidisciplinary research programme Impact of Religion: Challenge for Society, Law and Democracy, founded as a Centre of Excellence at Uppsala University.
Article

What Critiques Have Been Made of the Socratic Method in Legal Education?

The Socratic Method in Legal Education: Uses, Abuses and Beyond

Keywords Socratic method, legal education, learning theory, critical thinking, feminist pedagogy
Authors Christie A. Linskens Christie
AbstractAuthor's information

    Legal education is known for its use of the Socratic method. It appears, however, that the Socratic method may not be just for law students any more: American educators are now considering the method in the teaching of non-law school students. One perceived benefit of teaching by the Socratic method is that a student will learn by critical thinking rather than rote memorization. A major criticism of the method, however, is that a student may suffer low self-esteem from the perception that the method engages in ‘bullying’. The articles discussed in this literature review address the method in learning theory, the method in law school, criticisms of the method and proposals to use the method for non-law students. This article will analyze the Socratic method, the pros and cons of the method and its application outside of the law school.


Christie A. Linskens Christie
Christie A. Linskens Christie is a PhD Student, Urban Education at the University of Wisconsin-Milwaukee, Adjunct Professor at Marquette University Law School and Staff Attorney, Legal Aid Society of Milwaukee, Inc.
Article

Women Can and Should Have It Both Ways

Finding a Balance Between the EU’s New Law on Maternity Leave and American Maternity Provisions

Keywords European Union, maternity leave, family, work
Authors Amy Lai
AbstractAuthor's information

    This paper critiques the EU’s new la won maternity leave by contextualizing it in the historical development of EU law as well as in feminist criticism. It arguaes in favour of generous paid maternity leave provisions based on economic and psychological arguments. It then examines the likely impact of an extension of maternity leave a the EU level on member states. Finally, it studies the Family and Medical Leave Act of the United States to reveal the insufficiencyof its maternity leave provisions, especially when compared to the generous provisions in current EU law. This paper arrives at the conclusion that new mothers, be they Europeans or Americans, can and should be able to reconcile their wort and family obligations.


Amy Lai
Amy Lai is a student at Boston College Law School and holds a Ph.D. from Cambridge. The author would like to express her gratitude to Professor Sophie Robin-Olivier for her comments on the draft.
Article

Karlsruhe v. Lisbon

An Overture to a Constitutional Dialogue from an Estonian Perspective

Keywords constitutional dialogue, Karlsruhe decision, supranationalism
Authors Tanel Kerikmae and Katrin Nyman-Metcalf
Abstract

    The article uses the 2009 decision of the German Constitutional Court on the Lisbon Treaty as a basis for an analysis of the relationship between EU law and Member State law, especially Member State constitutions. The authors argue that an uncritical openness of Member States to supremacy of EU law and the interpretations made of it by the European Court of Justice is not necessary but rather an analytical attitude towards the development of EU with active legal argumentation to protect the rule of law – a deliberative supranationalism. A constitutional dialogue between Member States and the EU is the best protection and promoter of rule of law. The constitutional discussions in Estonia are used as an illustration of the balancing of national constitutional principles and supremacy or EU law.


Tanel Kerikmae

Katrin Nyman-Metcalf
Practice

When the Package Holiday is Not Realized

A Piece of EU Consumer Law under Review

Keywords package holiday, consumer law, contract law
Authors Dr. Josep M. Bech Serrat
AbstractAuthor's information

    When a package travel contract is not realized, the organizer assumes the obligation to inform the consumer, to provide a refund and to provide alternative services. All these measures form part of the core of the EU’s legislative acquis and are mainly governed by Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours. The Directive employs a fragmented approach and is currently under review. This area also remains outside the new comprehensive approach introduced by the Proposal for a Directive of the European Parliament and the Council of 8 October 2008 on consumer rights, and it would appear that this harmonization ‘deficit’ will be covered by means of ‘vertical action’. The aims of this paper are to contrast the existing regulations in this field with the general rules of consumer contract law, to identify the inconsistencies involved and to present some proposals regarding performance rules.


Dr. Josep M. Bech Serrat
Dr. Josep M. Bech Serrat is Lecturer in Civil Law at Tourism School, University of Girona.
Practice

Examining the Use of Arbitration and Dealing with Decedent’s Wishes in Wills, Trusts and Estates

Keywords arbitration, wills, trusts, pre-drafting contract, family
Authors Tzena Mayersak
AbstractAuthor's information

    This article examines the use of arbitration in wills and trusts as a method to honor decedents wishes. It explores the use of contracts drafted prior to the creation of a will or trust – referred to as a pre-drafting contract – as a method to allow for the inclusion of arbitration. The article also briefly discusses the use of in terrorem clauses – also known as disinheritance clauses – in wills and trusts. It suggests that in terrorem clauses can be detrimental and that the issues that can arise as a result of such provisions can be avoided by using pre-drafting contracts. Finally, the article suggests the benefits of using arbitration and pre-drafting contracts can include confidentiality, the ability to save time and money, and the ability to protect family relationships.


Tzena Mayersak
Tzena Mayersak M.S. received her Master’s of Science in Justice, Law, and Society from the American University in August 2006 and is a Candidate for Juris Doctor, Hamline University School of Law, May 2012.
Practice

Bicameralism or Unicameralism

A Case of the United Kingdom and Uganda

Keywords unicameralism, bicameralism, legislative system of Uganda, legislative system of the UK
Authors Esther Majambere
AbstractAuthor's information

    This article discusses the advantages and disadvantages of a unicameral legislative system and that of a bicameral legislative system. A unicameral legislature has one chamber whereas a bicameral legislature has two chambers as this article shows in detail.In any democratic state, Parliament is the only organ given power to make laws. Most Constitutions define legislation as the central function of parliament. This is supported by its very name ‘the Legislature’. The law making processes in a unicameral legislature are more less the same as those in a bicameral legislature as this article discusses. The only difference is that in a bicameral system the law has to be approved by both chambers. The article therefore explores whether the second chamber is necessary.Bicameralism seems to work best in countries that are larger or socially and ethnically diverse. It helps to resolve regional conflict. In some countries with a bicameral legislative system, the upper house is used as a way of reserving representation for certain societal groups and or to replace a further check on the power of the Lower House. The Parliament of UK is a bicameral legislature with the House of Lords (upper house) and the House of Commons (lower house). The House of Lords includes two different types of members- the Lord Spiritual (the senior bishops of the Church of England) and the Lords Temporal (members of the peerage upper ranks of the British nobility) elected by the population at large, but are appointed by the sovereign on the advice of the Prime Minister. The House of Lords also performed a judicial role through the Law Lords prior to the opening of the Supreme Court. In theory, supreme legislative power is vested in the Queen-in-Parliament; in practice real power is vested in the House of Commons, as will be discussed in this article. Therefore how many chamber a parliament should have is a controversial question in constitutional law.


Esther Majambere
Esther Majambere is a Senior Legal Officer at the Uganda Law Reform Commission in Kampala, Uganda.
Practice

Legislatures in Modern States: The Role of Legislature in Ensuring Good Governance Is Inadequate

A Case Study of the United Kingdom and Sierra Leone

Keywords legislature, good governance, comparative analysis
Authors Kadija Kabba
AbstractAuthor's information

    This essay is about examining the role of legislature in ensuring good governance and how adequate or otherwise they are in ensuring good governance. To examine and establish the facts, a comparative analysis is made between the United Kingdom and Sierra Leone Legislatures.This article first and foremost tried to establish that, indeed legislatures all over the world have an important role in ensuring good governance, which is the bed-rock and an essential ingredient in any government intending to thrive in governance, achieve its goals of success and a well-ordered and sustainable society.This piece of work chose transparency and accountability, two vital components that make up the concept of good governance as criteria in making the comparative analysis between two independent countries with legislatures as an arm of the Government.In comparing and analyzing the two jurisdictions, it was further established that there are certain factors that may limit or enhance the achievement of good governance by these legislatures. Nevertheless, the irrefutable fact this article tried to illustrate is that Good Governance needs an effective Parliament.


Kadija Kabba
Kadija Kabba is a Legal Officer and Legislative Drafter at the Central Bank of Sierra Leone. She holds an LL.M from the Universitty of London, A MPhil from the University of Tromsee, Norway, a LL.B and BA Degrees from the University of Sierra Leone. She is also a qualified barrister and Socilitor of the High Court of Sierra Leone.
Book Review

Boekbespreking

Authors Dr. Shawn Boyne
AbstractAuthor's information


Dr. Shawn Boyne
Associate Professor of Law, Indiana University School of Law, Indianapolis