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Article

Access_open Armed On-board Protection of Danish Vessels Authorisation and Use of Force in Self-defence in a Legal Perspective

Journal Erasmus Law Review, Issue 4 2018
Keywords piracy, private security companies (PSC), privately contracted armed security personnel (PCASP), use of force, Denmark
Authors Christian Frier
AbstractAuthor's information

    This article examines the legal issues pertaining to the use of civilian armed guards on board Danish-flagged ships for protection against piracy. The Danish model of regulation is interesting for several reasons. Firstly, the Danish Government was among the first European flag States to allow and formalise their use in a commercial setting. Secondly, the distribution of assignments between public authorities and private actors stands out as very pragmatic, as ship owners and contracting private security companies are empowered with competences which are traditionally considered as public administrative powers. Thirdly, the lex specialis framework governing the authorisation and use of force in self-defence is non-exhaustive, thus referring to lex generalis regulation, which does not take the special circumstances surrounding the use of armed guards into consideration. As a derived effect the private actors involved rely heavily on soft law and industry self-regulation instrument to complement the international and national legal framework.


Christian Frier
Christian Frier is research assistant at the Department of Law, University of Southern Denmark. He obtained his PhD in Law in March 2019.

Ágnes Kovács-Tahy
Assistant professor, Pázmány Péter Catholic University, Budapest.
Article

The Suprema Lex of Malta

A Forgotten Law in Legislative Drafting, Statutory Interpretation and Law Making?

Journal European Journal of Law Reform, Issue 4 2018
Keywords Maltese Law, legislative drafting, statutory interpretation, law making, supreme law
Authors Kevin Aquilina
AbstractAuthor's information

    Although the Constitution of Malta is the supreme law of the land, yet, in practice, the three principal organs of the state – the legislature, executive and judiciary – have, in certain respects exemplified in this article, tended to close their eyes to the provisions of the supreme law of the land to such an extent that legislation, government action and judicial pronouncements have breached the basic law. Without attempting to be all-inclusive, the article discusses a few illustrations where this has been the case and reflects upon this institutional behaviour where the Constitution is not upheld as the supreme law of Malta but is instead derided and disparaged. Consequently, fundamental principles of state governance such as the tenets of a democratic society and the rule of law end up being threatened and imperilled by those same institutions which are called upon to respect them. Nevertheless, the Constitution proclaims itself supreme over any other law and the organs it establishes, including the three principal organs of the state which are assaulting it, and embodies within its fold the rule of law which at the current state of play is passing through a critical phase in the state of Malta.


Kevin Aquilina
Professor Kevin Aquilina is Dean of the Faculty of Laws at the University of Malta.
Article

Access_open Crisis in the Courtroom

The Discursive Conditions of Possibility for Ruptures in Legal Discourse

Journal Netherlands Journal of Legal Philosophy, Issue 1 2018
Keywords crisis discourse, rupture, counterterrorism, precautionary logic, risk
Authors Laura M. Henderson
AbstractAuthor's information

    This article addresses the conditions of possibility for the precautionary turn in legal discourse. Although the precautionary turn itself has been well-detailed in both legal and political discourse, insufficient attention has been paid to what made this shift possible. This article remedies this, starting by showing how the events of 9/11 were unable to be incorporated within current discursive structures. As a result, these discursive structures were dislocated and a new ‘crisis discourse’ emerged that succeeded in attributing meaning to the events of 9/11. By focusing on three important cases from three different jurisdictions evidencing the precautionary turn in legal discourse, this article shows that crisis discourse is indeed employed by the judiciary and that its logic made this precautionary approach to counterterrorism in the law possible. These events, now some 16 years ago, hold relevance for today’s continuing presence of crisis and crisis discourse.


Laura M. Henderson
Laura M. Henderson is a researcher at UGlobe, the Utrecht Centre for Global Challenges, at Utrecht University. She wrote this article as a Ph.D. candidate at the Vrije Universiteit Amsterdam.

Dr. Beatriz Barreiro Carril
Lecturer of International Law (Rey Juan Carlos University).
ECJ Court Watch

ECJ 5 July 2017, case C-190/16 (Fries), Age discrimination

Werner Fries – v – Lufthansa CityLine GmbH, German case

Journal European Employment Law Cases, Issue 1 2018
Keywords Age discrimination
Abstract

    The non-discrimination principle and the freedom of occupation, as provided for in the Charter of Fundamental Rights of the European Union, do not prevent the EU from setting an age limit for pilots involved in commercial air transport, provided that this is done in accordance with Article 52(1) of the Charter.

    China’s first space station, Tiangong-1, returned to earth on 1 April 2018 after more than six years in outer space. This was not isolated and some of the previous return of space objects are Cosmos 854 in 1978, Skylab in 1979, Delta II second stage in 1997, MIR Space Station in 2001, Italian BeppoSax in 2003, US-193 in 2008 and ESA’s GOCE in 2013. In light of these events and its inevitably increasing frequencies, it is necessary to reflect on the international law governing the re-entry of space objects.
    In the current international legal framework, the state obligations cover the whole process of re-entry without obvious loopholes, preventative ex ante and responsible ex post. But the state practice is largely uneven and there are controversies and ambiguities over obligations to forewarn hazardous events and disclose information for facilitating damage control and cleanup operation; under what conditions can reentry objects be actively removed; and how to return the objects and compensate the damages. This requires adjustment and fine-tuning of some critical notions in the space treaties and other legal documents, particularly, how to apply victim-oriented and environment-friendly principles in space sector, the balance between launching states’ jurisdiction and control of space objects and the interest of other states, the definition and determination of damages and state responsibility for hazardous activities.


Xiaodan Wu
Law School, China Central University of Finance and Economics.

Laura Keogh
MHL-Law RechtsanwaltsgesellschaftmbH.

    The Agreement on Transboundary Haze Pollution (“ATHP”), which has been signed by ASEAN member states, aims to overcome the annual haze problem in the region. Since the treaty came into force on 25 November 2003, the signatory nations urged Indonesia, the dominant contributor to the haze pollution, to ratify the agreement. After taking more than a decade to consider, Indonesia finally ratified the agreement in 2014, evincing its serious effort to prevent future forest fires. This study analyzes important issues of state responsibility and effective legal recourse to cope with the unresolved haze problem. Due to the ineffectiveness of ATHP, this study presents two effective legal measures: utilizing another relevant international treaty that offers an effective dispute settlement mechanism and building international awareness to stop using products from endangered forests.


Dodik Setiawan Nur Heriyanto
Lecturer at Faculty of Law, Islamic University of Indonesia.
Article

Get Your Money’s Worth from Investment Advice

Analysing the Clash over the Knowledge and Competence Requirements in the Markets in Financial Instruments Directive (MiFID II)

Journal European Journal of Law Reform, Issue 1-2 2017
Keywords Better Regulation, ESMA, financial regulation, expertise, MiFID II
Authors Aneta Spendzharova, Elissaveta Radulova and Kate Surala
AbstractAuthor's information

    This special issue aims to examine whether there is an enduring politicization in the European Union (EU) “Better Regulation” agenda despite the emphasis on neutral evidence-based policy making. Our article addresses this overarching research question by focusing on the use of stakeholder consultations in the case of financial sector governance, particularly, the amended Markets in Financial Instruments Directive (MiFID II). We show that calibrating key provisions in MiFID II, such as those concerning knowledge and expertise, is not a simple exercise in rational problem definition and policy design. The provisions examined in this article have important repercussions for financial sector firms’ business strategies and operations. Thus, investment firms, banks, training institutes and public organizations have mobilized and actively sought to assert their views on the appropriate requirements for professional knowledge and experience in MiFID II. We found that, following the stakeholder consultation, the European Securities and Markets Authority (ESMA) opted for a minimum harmonization approach at the EU level. At the same time, ESMA also supported giving the respective national competent authorities sufficient remit to issue additional requirements in accordance with national laws and regulatory practices. Our article demonstrates that while public consultations provide rich evidence for the policy making process, they also contribute to the lasting politicization of regulatory decisions.


Aneta Spendzharova
Aneta Spendzharova is Assistant Professor in the Political Science department of Maastricht University, The Netherlands.

Elissaveta Radulova
Elissaveta Radulova is Assistant Professor in the Political Science department of Maastricht University, The Netherlands.

Kate Surala
Kate Surala is a graduate student in the MSc in Law and Finance, Pembroke College, University of Oxford, UK.
Article

Regulatory Review of European Commission Impact Assessments

What Kind for Which Better Regulation Scenario?

Journal European Journal of Law Reform, Issue 1-2 2017
Keywords impact assessment, Better Regulation, non-judicial review, regulatory scrutiny, European Union
Authors Anne C.M. Meuwese
AbstractAuthor's information

    The article maps the various ways in which review of Commission impact assessments takes place by the Regulatory Scrutiny Board, the European Ombudsman, the European Court of Auditors, and the Court of Justice of the European Union, among others, and assesses the effect these review activities have on the framework and functioning of this primary Better Regulation tool.


Anne C.M. Meuwese
Tilburg Law School, The Netherlands, Professor of European and Comparative Public Law.
Article

The Hague Space Resources Governance Working Group

Second Progress Report and the Way Forward

Journal International Institute of Space Law, Issue 2 2017
Authors Tanja Masson-Zwaan, René Lefeber, Giuseppe Reibaldi e.a.
Author's information

Tanja Masson-Zwaan
Tanja Masson-Zwaan (corresponding author), International Institute of Air & Space Law, Leiden University, The Netherlands, t.l.masson@law.leidenuniv.nl.

René Lefeber
René Lefeber, Netherlands Ministry of Foreign Affairs, The Netherlands, rene.lefeber@minbuza.nl.

Giuseppe Reibaldi
Giuseppe Reibaldi, Special Space Policy Advisor, The Netherlands, giuseppe.reibaldi@gmail.com.

Dimitra Stefoudi
Dimitra Stefoudi, International Institute of Air & Space Law, Leiden University, The Netherlands, d.stefoudi@law.leidenuniv.nl.

Federico Bergamasco
PhD Researcher, Université du Luxembourg, Faculty of Law, Economics and Finance, Federico.bergamasco@uni.lu
Article

The Quality of Regulation in the Service of Preventing Corruption

Corruption Impact Assessment (CIA)

Journal European Journal of Law Reform, Issue 2 2016
Keywords corruption, regulation, quality, impact assessment, risk
Authors Luca Di Donato
AbstractAuthor's information

    This article describes the Corruption Impact Assessment (CIA), which is a better regulation tool suggested by the OECD, with the fundamental purpose to enhance the regulatory quality.
    The first part explains some risk-corruption factors of the legal framework. The first factor is represented by the number and complexity of rules, which can be a negative incentive to corruption as well as to produce negative consequences for the proper functioning of the market. The second factor is intrinsically linked to the ambiguity in legal drafting, which does not encourage the right interpretation of norms; therefore, there is the question of the rule of law. The third factor refers to the lack of regulation concerning pressure group participation in the regulatory process and, as a result, the lack of transparency in identifying both benefits from norms and the relevant beneficiaries.
    The second part focuses on CIA, which is considered a sub-category of traditional Regulatory Impact Assessment. It detects the factors in regulations that cause corruption, and its main potential is to prevent future corruption facilitated by bad regulation. Then, this part illustrates the implementation of CIA by Korean governments: the Anti-Corruption and Civil Rights Commission (ACRC) carries out the CIA, realizes its guidelines – which are based on three fundamental criteria, i.e., compliance, discretionality and transparency – and supports the application of the tool in the regulatory cycle.
    Finally, the third part discusses the results given by CIA. This new anti-corruption strategy needs that regulators take into account the results, providing for their publication to inform stakeholders; otherwise there is the possibility of the CIA use being formal, rather than substantial.


Luca Di Donato
PhD candidate at LUISS University.
Article

Access_open Raising Barriers to ‘Outlaw Motorcycle Gang-Related Events’

Underlining the Difference between Pre-Emption and Prevention

Journal Erasmus Law Review, Issue 3 2016
Keywords Prevention, pre-crime, pre-emption, risk, outlaw motorcycle gangs
Authors Teun van Ruitenburg
AbstractAuthor's information

    Fighting outlaw motorcycle gangs is currently one of the top priorities of many governments around the world. This is due to the notion that outlaw motorcycle gangs do not consist solely of motorcycle enthusiasts. Numerous cases reveal that these clubs, or at least their members, are involved in (organised) crime. In order to tackle these clubs, the former Dutch Minister of Security and Justice announced a whole-of-government strategy towards outlaw motorcycle gangs in 2012. As part of this effort, authorities such as the Dutch National Police, the Public Prosecution Service, the Dutch Tax Authority and local governments aim to cooperate in order to disrupt and restrict outlaw motorcycle gangs by means of Criminal, Administrative and Civil Law. Part of this strategy is to hinder club-related events. This article discusses the latter strategy in light of the distinction between prevention and pre-emption. As the latter two concepts are often used interchangeably, this article attempts to use a more strict division between prevention and pre-emption. Thereby, it becomes apparent that outlaw motorcycle gangs are to some extent governed through uncertainty. The author suggests that maintaining the ‘prevention–pre-emption distinction’ can offer an interesting and valuable point of departure for analysing today’s crime policies.


Teun van Ruitenburg
Teun van Ruitenburg, MSc., is PhD Candidate at the Criminology Department of the Erasmus University Rotterdam.
Article

Credibility of Sunnah

Journal European Journal of Law Reform, Issue 4 2016
Keywords Sunnah, Hadith, traditions of Prophet Muhammad, sources of Islamic Law, rules of Hadith acceptance
Authors Ahmad Alomar
AbstractAuthor's information

    Islamic Law (Sharia) consists primarily of the Qur’an, the actual word of God revealed to Prophet Muhammad during his lifetime. The Qur’an itself is relatively short, compact and immutable. It was revealed in Classical Arabic and in a very poetic and elaborate format. Many parts of it are not easy to understand even for educated speakers of Arabic. In order to understand the meaning of some of its provisions and to be able to apply its teachings to changing times and societies, recourse is often made to other sources of Islamic law, first and foremost the Sunnah, or traditions of the Prophet Muhammad. The Sunnah consists of historic records of things the Prophet did or said in various situations during his lifetime. Because of the Prophet’s exalted position as God’s messenger, his words and deeds are considered supreme guidance for Muslims anywhere, as they are seeking to understand the teachings of Islam and its application to their lives. The problem with the Sunnah is, however, that the historic record of the words and deeds of the Prophet is not always clear and reliable. Therefore, giving the force of law to these words and deeds can be problematic. Distinguishing reliable and unreliable Sunnah is critically important. Muslim believe in many hadiths that may directly contradict the Qur’an, scientific evidence, fundamental principles of law and human rights, or each other. This article examines the Sunnah and the science of verifying hadith and argues that a more cautious approach should be taken and that Muslims around the world are being taught many rules that are supposedly rules of Islamic law where at the very least we cannot be sure. Instead of declaring thousands of weak hadith to be binding elements of Islamic law, we should be more discerning between strong and weak hadith and only treat those that are verifiable as binding. Other rules can still be persuasive if they meet certain conditions, in particular compatibility with the Qur’an itself, but they must not be used to impose rules on Muslims against their will, let alone against the provisions of the Qur’an.


Ahmad Alomar
S.J.D Candidate at IU McKinney School of Law, Faculty Member at King Fahd University of Petroleum and Minerals.
Article

The Fight against Corruption in Sierra Leone

Challenges and Opportunities in the Jurisprudence

Journal African Journal of International Criminal Justice, Issue 1-2 2016
Keywords Accountability, corruption, judicial approach, jurisprudence, reforms
Authors Michael Imran Kanu
AbstractAuthor's information

    The fight against corruption in Sierra Leone gained momentum, at least in terms of policy direction, following the enactment of the Anti-Corruption Act 2000 and the Amendment Act in 2008. It is considered to be one of the most robust anti-graft laws in the world and its promulgation is in recognition of the international and national resolve to fight the menace, owing to its devastating effects, especially in the Least Developed Countries (LCDs) of the world. The Anti-Corruption Act of 2000, though viewed as a tremendous move towards curtailing corruption, was riddled with shortcomings. Practitioners viewed the Act as limited in the number of proscribed offences created, coupled with the lack of independence signified by the absence of prosecutorial powers. With the enactment of the Amendment Act in 2008, it is crucial to examine the opportunities it has created to eradicate corruption. Critical also to the national and global resolve is the consideration of challenges that may have sprouted. This paper will examine some of the opportunities and challenges in the jurisprudence in the fight against corruption in Sierra Leone, with the aim of providing an avenue for reflection as well as a prompter for legislative reforms or change in judicial approach.


Michael Imran Kanu
Department of Legal Studies, Central European University. Email: Kanu_Michael@phd.ceu.edu.
Article

Parliamentary Diplomacy in the United Nations and Progressive Development of Space Law

Journal European Journal of Law Reform, Issue 1 2016
Keywords COPUOS, Legal Subcommittee, law making, agenda, working methods
Authors Tare Brisibe
AbstractAuthor's information

    Recent and on-going efforts by individual or groups of states aim to organize parliamentary mechanisms and substantive issues concerning space law. The article addresses organizational matters of the Legal Subcommittee (LSC) of the UN Committee on the Peaceful Uses of Outer Space (COPUOS) and particularly the debate between procedure and substance. The article enquires whether amending the parliamentary process can be expected to yield results in the absence of agreement to proceed on substantive matters. Whilst highlighting the achievements of COPUOS and its LSC in the progressive development and codification of space law, attention is paid to salient decisions concerning organizational matters, taken with respect to the COPUOS and its LSC spanning the period 1990 to 1999 and post 1999 to present. Analysis is undertaken of reasons for presumed decline, alongside current and future perspectives that shall influence COPUOS and its LSC in their respective law making functions.


Tare Brisibe
Barrister & Solicitor of the Supreme Court of Nigeria, Legal Consultant and former Chair of the UN COPUOS Legal Subcommittee for the biennium 2012-2014.
Article

Access_open Relief in Small and Simple Matters in Belgium

Journal Erasmus Law Review, Issue 4 2015
Keywords Belgium, small matters, simple matters, recovery of unchallenged claims, summary order for payment
Authors Stefaan Voet
AbstractAuthor's information

    This article is based on a national report that was written for the XVth World Congress of the International Association of Procedural Law that was held in Istanbul in May 2015 and that focused on Effective Judicial Relief and Remedies in an Age of Austerity. It first of all sketches the general judicial context in Belgium and some of its relevant features: the judicial organisation, the goals of the civil justice system, the course of an ordinary civil lawsuit, the role of the court, and the litigation costs. Next, a detailed and critical overview of the current and future procedures that offer relief in small and simple matters is given. The current summary order for payment procedure, which was introduced in 1967, did not meet its goals. The article concludes that a new trend is emerging in Belgium, namely keeping small and unchallenged claims outside the judiciary and providing for cheaper and more efficient alternatives.


Stefaan Voet
Stefaan Voet is an Associate Professor of Law at the Katholieke Universiteit Leuven and a Visiting Professor at the Universiteit Hasselt.
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