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European Journal of Law Reform

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Issue 1, 2012 Expand all abstracts
Article

The Response of National Law to International Conventions and Community Instruments – the Dutch Example

Keywords Legislative approaches, Private International Law codification, Book 10 of the Dutch Civil Code, Implementation of international instruments, Incorporation by reference
Authors Dorothea van Iterson
AbstractAuthor's information

    This paper, presented at a colloquium at Barcelona University in 2010, outlines the history of the codification of Private International Law (PIL) in the Netherlands, which was completed in 2011 by the introduction of Book 10 of the Dutch Civil Code (conflict of laws). It describes the policy guidelines followed in giving effect to international instruments, i.e. conventions and European legislation. Basically all types of international PIL rules are further regulated at the national level. Moreover, the national PIL codification contains a number of provisions which were borrowed from or inspired by international instruments.


Dorothea van Iterson
Former Counsellor of Legislation, Ministry of Justice of the Netherlands.
Article

Trade in Oil and Export Restrictions

Taking the Organization of the Petroleum Exporting Countries to the WTO Court

Keywords WTO, dispute settlement, US, OPEC, oil
Authors Bashar H. Malkawi
AbstractAuthor's information

    The Organization of the Petroleum Exporting Countries (OPEC), as seen by observers, resembles a greedy international cartel that preys on the public in defiance of market competition. High oil prices are considered as a principal cause of the US economic woes. Some US congressmen pinpointed OPEC’s alleged inconsistency with the World Trade Organization (WTO) rules and called upon the US administration to open dispute settlement proceedings against OPEC. This article discusses the legal issues arising from a US action at the WTO level against OPEC countries. The first sections of the article comprise an institutional review of the WTO and OPEC. The article addresses the interplay between the WTO and OPEC. It then illustrates the central provisions of the WTO that can be used for arguments and counter-arguments concerning such a WTO action. It culminates with a set of concluding thoughts.


Bashar H. Malkawi
Associate Professor of Commercial Law, University of Sharjah, UAE. He received his LL.B from Yarmouk University in 1999, LL.M from University of Arizona College of Law in 2001, S.J.D from American University, Washington College of Law in 2005. The author would especially like to thank the two outside reviewers for their direction, feedback and invaluable insight. He also thanks the law journal editors and staff writers for their hard work in polishing the article.
Article

From Port Louis to Panama and Washington DC

Two Regional Approaches to International Commercial Arbitration

Keywords international commercial arbitration, OHADA, institutional arbitration, American Arbitration Association, regional law reform
Authors Jonathan Bashi Rudahindwa
AbstractAuthor's information

    In recent decades, regional efforts have been made to reform and harmonize the rules governing international arbitration. These efforts have resulted in the adoption of regional instruments governing commercial arbitration in specific areas. This paper analyzes the arbitration regimes created at a regional level in Africa and America, and particularly focuses on arbitral institutions that were created within the Organization for Harmonization of Business Law in Africa (OHADA) and within the Organization of American States (OAS). The objective of the paper is to identify any advantages provided by either regime, which can help improve regional and international commercial arbitration.


Jonathan Bashi Rudahindwa
LL.B (Kinshasa, D.R.Congo), LL.M (Indiana, USA), Doctoral candidate – School of Oriental and African Studies/University of London.
Article

Current Developments in the National Laws of Maintenance

A Comparative Analysis

Keywords child maintenance, maintenance after divorce, calculation of maintenance, enforcement of maintenance claims, social security benefits
Authors Dieter Martiny
AbstractAuthor's information

    Maintenance law in European jurisdictions is in a state of constant transformation. Recent reforms, however, show some areas of major concern. In child maintenance law, particularly joint custody of the parents and an alternating residence of the child make the need for a better calculation of maintenance more apparent. The use of guidelines with tables and formulas is on the rise. In maintenance after divorce, the growing influence of the principle of self-sufficiency is leading to reductions of the maintenance payments made to former spouses. Enforcement of maintenance claims, the role of the State and the relationship with social security benefits remain difficult.


Dieter Martiny
Professor emeritus, European University Viadrina, Frankfurt (Oder)/Hamburg. A shorter version was presented at the Annual Conference on European Family Law of the Academy of European Law in Trier, 30 September 2011.
Article

Immigration, Religion and Human Rights

State Policy Challenges in Balancing Public and Private Interests

Keywords globalization, religious symbols, reasonable accommodations, comparative law, immigration, burqa, human rights
Authors Eric Tardif
AbstractAuthor's information

    Three regions of the world – Western Europe, North America, and Australia – are probably the most popular options when families of emerging countries decide to emigrate in order to better their economic future. As the flow of immigrants establishing themselves in the receiving societies allows for these countries to get culturally richer, it creates, on the other hand, legal tensions as to the extent religious practice is to be accommodated by the governments of secular societies so as to facilitate the insertion of the newcomers into the workplace, social networks, and education system. In order to eliminate or diminish the effect of legal provisions that cause an indirect harm to religious minorities, several countries have taken steps aimed at “reasonably accommodating” them. This paper looks at these efforts made by receiving States, taking into account both the legislative aspect and the interpretation of the statutes and constitutional provisions by national as well as international tribunals; it also gives a critical appreciation of the results that have been obtained in the societies that have implemented those shifts in their legal system.


Eric Tardif
LL.L. (Ottawa); LL.M., LL.D. (National Autonomous University of Mexico - UNAM). The author is currently a Lecturer at the Faculty of Law of the National Autonomous University of Mexico, in the subjects of International and Comparative Law. This document was initially prepared for presentation at the VIIIth World Congress of the International Association of Constitutional Law, held in Mexico City, 6-10 December, 2010; an earlier version of this article was published in the International Journal of Public Law and Policy in 2011.
Article

Teaching Legislative Drafting

The Necessity for Clinical Legal Education

Keywords clinical legal education, legislative drafting, literature review
Authors Tonye Clinton Jaja
AbstractAuthor's information

    This article makes a case for the application of clinical legal education methods in the teaching of legislative drafting. This need arises to fill the acknowledged gap namely: “the failure of legal education to provide adequate training on the legislative process, statutory interpretation and legislative drafting” considering that there are very few colleges and universities that offer legislative drafting courses. In turn this is a part of a much wider on-going problem in contemporary legal education, namely: “...clinical legal education has not been adopted by many law departments within UK universities”. Using the legislative drafting law clinic at the Institute of Advanced Legal Studies, University of London as a case study, this paper advocates reasons and justification(s) for the application of clinical legal education methods to facilitate the teaching of legislative drafting skills.


Tonye Clinton Jaja
PhD student, IALS, University of London. The views expressed in this article are my personal opinion and not those of the Legislative Drafting Clinic or the IALS. I accept sole responsibility for the views and errors expressed herein. The author can be contacted by e-mail: tonyeclintonjaja@yahoo.com.
Article

State Aid Given by Local Government Which Disorts Competition

Keywords local government, financial autonomy, taxes, sales, state aid
Authors Fjoralba Caka
AbstractAuthor's information

    The Albanian local government has a financial autonomy that is guaranteed by the Constitution and other important legal acts. This implies the right to grant subsidies, loans, define rates of taxes, to sale land or to exercises other rights in the ambit of their financial authority. On the other hand, part of the Stabilization and Association Agreement (SAA) Albania has with the European Union, is the prohibition of state aid that distort competition. Article 71 of the SAA states that any state aid contrary to this agreement shall be assessed on the basis of criteria arising from the application of Article 87 of the EC Treaty and the interpretative instruments adopted by the EU institutions for the application of Article 87 of the EC Treaty. The right interpretation of the notion of state aid that distorts competition, as developed by the European Court of Justice and EU Commission’s documents, should be taken into consideration in order to avoid that, the local government, in exercising the financial authority would grant an aid that distort competition and infringe the Stabilization and Association Agreement.


Fjoralba Caka
Assistant Lecturer in European Union Law, Faculty of Law, University of Tirana. PhD candidate.
Book Review

Interpretation in Polish, German and European Private Law

Authors Prof. Dr. Christiana Fountoulakis
Author's information

Prof. Dr. Christiana Fountoulakis
University of Fribourg, Switzerland
Book Review

European Private Law – Current Status and Perspectives

Authors Prof. Dr. Christiana Fountoulakis
Author's information

Prof. Dr. Christiana Fountoulakis
University of Fribourg, Switzerland
Book Review

EU Compendium – Fundamental Rights and Private Law

Authors Adrien Gabellon lic. iur.
Author's information

Adrien Gabellon lic. iur.
Research Assistant, Faculty of Law, University of Fribourg, Switzerland