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Article

The Pursuit of Clarity, Precision and Unambiguity in Drafting Retrospective Legislation

Journal European Journal of Law Reform, Issue 3 2013
Keywords retrospectivity, clarity, precision, unambiguity, legislative drafting
Authors Elias Turatsinze
AbstractAuthor's information

    The hypothesis of this paper is that clarity, precision and unambiguity are the essential tools for expressing retrospective intent, which is a pre-requisite for quality and validity of retrospective legislation. The main objective of this work is to show that retrospective laws are valid, if the retrospective intent is expressed in clear, precise and unambiguous words within the statute. The term retrospectivity is used broadly to describe any legislation or decision affecting pre-enacting conduct. It encompasses statutes affecting the pre-enactment events, administrative regulations or decisions which look back in time and judicial decisions that overturn prior decisions. All these areas cannot be covered in this limited piece of work. Thus, the emphasis in this work will be put on retrospectivity of statutes at the drafting stage. Although it may be referred to generally, retrospective delegated legislation is outside the scope of this work. Particular attention will be directed towards the importance of clarity, precision and unambiguity in attaining quality and validity of retrospective legislation.


Elias Turatsinze
Elias Turatsinze graduated in Legislative Drafting (LLM) from the University of London- Institute of Advanced Legal Studies in 2012.
Article

The Drafter’s Role in the Drafting Process

Journal European Journal of Law Reform, Issue 3 2013
Keywords drafter, drafting process, techniques, scrutiny
Authors Mico Augustin
AbstractAuthor's information

    Every government needs legislation to cover all issues transposing obligations in the manner required by the initiator and with respect to constitutional obligations and rules that provide for the conduct of society.
    Every legislative drafter should strive to achieve a law that is people oriented. The idea is to serve by extending legislative benefits to them in the best possible manner. Drafting is not a simple transcription or translation of administrative or executive guidelines, but is the command of legislative intent. It is a mixture of vision, mission and design, which brings out a workable proposition considering the background of a problem and foreseeing the ramifications of the legislative action. Drafting always supposes precision, brevity and clarity. Drafting should be compared to a focus of technical knowledge of a special kind that put together minds to produce a unity of thought enunciated as a command.
    In order to produce quality legislation, drafters need undergraduate law training, followed by specialised postgraduate training in legislative studies, combined with hands on experience in a drafting office with an experienced senior drafter.


Mico Augustin
Legislative Drafter and Advisor of the Rwanda Parliament/Chamber of Deputies. Email: micog2009@yahoo.fr
Article

Legislative Techniques in Rwanda

Present and Future

Journal European Journal of Law Reform, Issue 3 2013
Keywords legislative drafting, law-making, drafting techniques, Rwanda, quality of legislation
Authors Helen Xanthaki
AbstractAuthor's information

    This report is the result of the collective work of 26 Rwandan civil servants from a number of ministries, who set out to offer the Ministry of Justice a report on legislative drafting in Rwanda. The work was undertaken under the umbrella of the Diploma in Legislative Drafting offered by the Institute for Legal Professional Development (ILPD) in Nyanza under the rectorship of Prof. Nick Johnson. The authors have used their experience of practising drafting in Rwanda, but have contributed to the report in their personal capacity: their views are personal and do not reflect those of the Government of Rwanda.
    My only contribution was the identification of topics, which follows the well-established structure of manuals and textbooks in drafting; the division of the report into two parts: Part 1 on the legislative process and Part 2 on drafting techniques; and the methodology of each individual entry to our report: what is current Rwandan practice, what are international standards, what is the future of Rwanda, and a short bibliography to allow the readers and users of the report to read further, if needed.
    The strength of this report lies both in the methodology used and in the content offered. The breakdown of topics, their prioritization and their sequence allow the reader to acquire a holistic view on how legislation is drafted in Rwanda, but there is nothing to prevent its use in the context of surveys on legislative drafting and legislative quality in other jurisdictions. The content offers a unique insight into the legislative efforts of a jurisdiction in transition from civil to common law: both styles are assessed without prejudice, thus offering a unique fertile ground for critical assessment and practical impact analysis.
    June 2013


Helen Xanthaki
Senior Lecturer and Academic Director, Centre for Legislative Studies, Institute of Advanced Legal Studies, School of Advanced Study, University of London, Lawyer (Athens Bar).

    The aim of this study is to prove that the use of section headings in legislation contributes to achieve effectiveness by helping readers of legislation find what they need to know faster, and understand it more easily. To prove the hypothesis, this study uses a comparative methodology by applying Horn’s criteria: Primary Users and Official Interpreters; Assistance for Primary Users; and Assistance for Official Interpreters. The study applies those criteria to Australian and Rwandan jurisdictions.


Samuel Ngirinshuti
Samuel Ngirinshuti graduated in Legislative Drafting (LLM) from the University of London- Institute of Advanced Legal Studies in 2012.
Article

Access_open The Conflict Minerals Rule

Private Alternatives?

Journal The Dovenschmidt Quarterly, Issue 3 2013
Keywords corporate social responsibility, conflict minerals, codes of conduct, contract law
Authors A.L. Vytopil
AbstractAuthor's information

    This article discusses Section 1502 of the Dodd Frank Act in respect of the transparency certain American companies are to provide in respect of conflict minerals and the Rule drawn up by the Securities and Exchange Commission following this legislation. It explains the requirements it poses on companies. Moreover, it highlights some of the societal criticism in respect of the Securities and Exchange Commission Rule, the legal challenge of this Rule and the subsequent court verdict by the District Court for the District of Columbia. Finally, it elaborates upon private regulatory initiatives that could provide viable alternatives to conflict minerals legislation, and it concludes that for the Netherlands, private regulation would probably be more effective than legislation comparable to Section 1502 of the Dodd Frank Act.


A.L. Vytopil
Louise Vytopil, LL.B MA MSc, is a Ph.D.-candidate and assistant-professor at Utrecht University’s Molengraaff Institute for Private Law.
Article

Treaties X Human Rights Treaties

A Critical Analysis of the Dual Stance on Treaties in the Brazilian Legal System

Journal European Journal of Law Reform, Issue 2 2013
Keywords human rights, international treaties, hierarchy of the treaties
Authors Gustavo Ferreira Santos
AbstractAuthor's information

    The Constitution of the Federative Republic of Brazil provides two procedures for incorporating treaties into domestic law. Human rights treaties must be approved by a special quorum: it is necessary that of three-fifths of the members of each legislative house vote in favour, with two rounds in each chamber. This proceeding is similar to a constitutional amendment. Treaties on other subjects need only the approval of the majority. This system has been in place since 2004. The Brazilian Supreme Court decided that human rights treaties incorporated after 2004 have the same hierarchical level of constitutional provisions but human rights treaties enacted before that have the same hierarchical position of ordinary statutory laws. This system needs to be reformed in order to allow an easier integration with international law. All human rights treaties should have the same position as constitutional provisions.


Gustavo Ferreira Santos
Professor of Constitutional Law at the Federal University of Pernambuco and the Catholic University of Pernambuco. Holder of a scholarship awarded by CNPq (Brazilian National Council for Scientific and Technological Development for Research Productivity).
Article

The Controversy Surrounding Article 9 of the Law That Defines How Brazilian Laws Are Applied

The Difficult Path to Reform of Private International Law Legislation in Brazil

Journal European Journal of Law Reform, Issue 2 2013
Keywords willingness, connecting element, controversy, Brazil
Authors Paul Hugo Weberbauer
AbstractAuthor's information

    This study aims to demonstrate that the legislative reform of Private International Law is one of the most complex subjects to be understood in terms of the Law in Brazil. With this objective, the point of reference of this study will be the controversy, which involves willingness as a connecting element, and is also known as the controversy around Article 9 of LINDB. By analyzing willingness as a connecting element within Brazilian legislation, a general panorama of the aforementioned Law is developed, as well as the debate of a doctrine nature about willingness as a connecting element and its insertion in the legal system in effect in Brazil. Finally, the difficulties encountered considering Brazil’s position towards international treaties and conventions, as well as the many attempts to reform Private International Law legislation will be analyzed.


Paul Hugo Weberbauer
Ph.D. in Law and Associate Professor of Recife Law School, Legal Sciences Centre at the Federal University of Pernambuco. Research Group: Regional integration, globalisation and International Law. E-mail: phwberbauer@hotmail.com.
Article

Brazil and International Agreements

Journal European Journal of Law Reform, Issue 2 2013
Keywords international agreements, Brazil, international scenario
Authors Eugênia Cristina Nilsen Ribeiro Barza
AbstractAuthor's information

    This article brings together an analysis about international agreements, highlighting their importance to States, either separately or in groups, considering aspects of the universal nature of their content, as well as regional aspects, stressing some particularities of the Brazilian legal system. It is based on the assumption that it is interesting for nation-States to participate in the elaboration of international agreements, although it is not always possible to implement them, their validity is not refuted or their efficacy denied. It is also relevant to reflect upon the international commitments internally, even more so when we see that the State will have to deal with a series of variables to validate such international commitments. At times when States are interdependent, the study about the participation of the State in the elaboration of international agreements is more than relevant, and is divided here in three perspectives. First, the participation of the State in regional agreements, highlighting the European experience of integration. Then, the Latin-American attempts at integration, from which MERCOSUL stands out, and, finally, matters unique to Brazil in light of international and regional challenges. At the end of this study, some answers as to how and why Brazil incorporates and implements its international agreements will be presented as final considerations.


Eugênia Cristina Nilsen Ribeiro Barza
Ph.D. in Law and Associate Professor of the Recife Law School, Legal Sciences Centre at the Federal University of Pernambuco, where she teaches Private International Law. Research Group: Regional integration, globalisation and International Law. E-mail: ecnrbarza@terra.com.br.
Article

Judicial Delegation of Administrative Acts During the Execution Phase or Execution Process

The Application of the Constitutional Principle of Efficiency, Under the Inspiration of Recent Portuguese Law Reforms

Journal European Journal of Law Reform, Issue 2 2013
Keywords Brazilian constitutional principle of efficiency, enforcement agents in Portugal, delegation of judicial procedural administrative and enforcement acts, enforcement proceedings
Authors Rafael Cavalcanti Lemos
AbstractAuthor's information

    The Constitutional Amendment 45/2004 emphasized the need for efficiency in both administrative and judicial judgments in Brazil and introduced the right of a trial within reasonable time (Art. 5, item LXXVIII) in the 1988 Federal Constitution. Although more judges are needed to comply with this constitutional requirement, no statutory regulation was enacted to date to conform to it, particularly to allow judges to delegate administrative and enforcement functions to civil servants. However, given that fundamental rights have immediate applicability, the principle of efficiency must be implemented regardless of further regulation. In Portugal, judges are not required to order executive acts, which are conferred to an enforcement agent. A similar system should be adopted in Brazil, leaving judges time for decision-making. An efficient judicial service is essential to strengthen the image of the Judiciary and depends on this type of reforms.


Rafael Cavalcanti Lemos
Judge at the Pernambuco Court of Justice, Diploma in Civil Procedures Law, Federal University of Pernambuco.
Article

Access_open Through the Looking Glass of Global Constitutionalism and Global Administrative Law

Different Stories About the Crisis in Global Water Governance?

Journal Erasmus Law Review, Issue 1 2013
Keywords global water governance, global constitutionalism, global administrative law, water crisis, integrated water resources management
Authors Mónika Ambrus
AbstractAuthor's information

    In addition to (or sometimes rather than primarily) attributing it to water scarcity, water crisis has been described as a ‘crisis of governance’; with the word ‘crisis’ also indicating that water governance lacks (full) legitimacy. The article undertakes the task to analyse the current status of global water governance (GWG) from the perspective of two competing theories relating to the legitimacy of global governance, namely global constitutionalism (GC) and global administrative law (GAL). Having mapped the current legal framework of GWG from these two perspectives, it is discussed how these theories might shape GWG and how this shaping could contribute to solving the water crisis. In addition, it is also explored whether reading one of the most accepted proposals for legitimising global water governance, the concept of ‘integrated water resources management’ (IWRM), through the lenses of either GC or GAL would have an impact on how this concept is interpreted, and whether it can be a useful mechanism to address the water crisis. The use of two theories analysing the same subject matter provides interesting insights into global water governance and the nature of the water crisis as well as the relationship between these two theories.


Mónika Ambrus
Assistant professor of public international law at the Erasmus School of Law, Erasmus University Rotterdam.
Article

Access_open The Value of Narratives

The India-USA Nuclear Deal in Terms of Fragmentation, Pluralism, Constitutionalisation and Global Administrative Law

Journal Erasmus Law Review, Issue 1 2013
Keywords India-US Nuclear Deal, Nuclear Energy Cooperation, Non-Proliferation Treaty, Fragmentation, Constitutionalisation, Pluralism, Global Administrative Law
Authors Surabhi Ranganathan
AbstractAuthor's information

    ‘Fragmentation’, ‘pluralism’, ‘constitutionalisation’ and ‘global administrative law’ are among the most dominant narratives of international legal order at present. Each narrative makes a descriptive claim about the current state of the international legal order, and outlines a normative vision for this order. Yet we must not lose sight of the conflicts between, and the contingency of these, and other narratives. This article seeks to recover both conflicts and contingency by showing how each may be used to explain a given event: the inauguration of a bilateral civil nuclear cooperation between the United State and India, better known as the ‘India-US nuclear deal’. I explain how the four narratives may be, and were, co-opted at different times to justify or critique the ‘deal’. This exercise serve two purposes: the application of four narratives reveal the various facets of the deal, and by its example the deal illuminates the stakes attached to each of the four narratives. In a final section, I reflect on why these four narratives enjoy their influential status in international legal scholarship.


Surabhi Ranganathan
Junior Research Fellow, King’s College/Lauterpacht Centre for International Law, University of Cambridge.
Article

Access_open Microfinance: Dreams and Reality

Journal The Dovenschmidt Quarterly, Issue 2 2013
Keywords microfinance, economic development, microfinance success, Institutions, law and economics
Authors Katherine Helen Mary Hunt
AbstractAuthor's information

    Microfinance is an area of research whose popularity is reflected by the unique potential for wide-ranging socioeconomic outcomes that support political goals unmatched by alternative avenues for financial support. However, despite the large amounts of financial resources funding microfinance across the world, and glorious potential economic benefits, there is no consensus regarding the success or failure of microfinance in achieving socioeconomic political goals. This article examines the empirical literature on microfinance to establish where microfinance has developed from, the organization of microfinance institutions (MFIs), the success or failure of microfinance, and future research methodological possibilities. It has been found that the success or failure of microfinance depends on the benchmarks to which it is measured. From a social empowerment perspective, microfinance success has been observed. However, from an economic development perspective the results are equivocal. The success of microfinance is related to the mission of DQ because of the interdisciplinary approach to research and the effects of microfinance across social and economic fields. Further, microfinance continues to be an avenue for the practical realization of corporate social responsibility (CSR) organizational goals and thus it is of relevance to evaluate success in this industry to ensure the efficient and continued achievement of political goals.


Katherine Helen Mary Hunt
Erasmus University Rotterdam, Rotterdam Institute of Law and Economics.
Article

Access_open A Description of the Historical Developments in Standard Setting and Regulations for Auditors and the Audit Firms in an International Perspective

Journal The Dovenschmidt Quarterly, Issue 2 2013
Keywords Audit profession, international audit regulations, public-interest entities, historical developments
Authors Paul van der Zanden and Peter M. van der Zanden
AbstractAuthor's information

    The article discusses the historical developments within the audit profession as well as the developments in the rules and regulations relating to this profession. It does so in an international perspective. The authors compare the traditionally more Anglo-Saxon oriented approach with the traditionally more continental European approach. They discuss the influence and impact of these different approaches on each other as well as the impact of this process on regulation on a European level and implementation thereof on a local level. The developments in the Netherlands, which evidence this process, are used as an illustration. Throughout the article the authors also make some critical observations and notes with respect to the developments discussed.


Paul van der Zanden
Paul van der Zanden, Attorney at law, Banning N.V.

Peter M. van der Zanden
Peter M. van der Zanden, Emeritus professor Financial Accounting and former partner Ernst & Young.
Article

Access_open Corporate Governance of Banks

Is More Board Independence the Solution?

Journal The Dovenschmidt Quarterly, Issue 2 2013
Authors Edyta M. Dorenbos and Alessio M. Pacces
Author's information

Edyta M. Dorenbos
Research fellow, Tilburg Law School, Department of Business Law and European Banking Center, Tilburg School of Economics and Management, Tilburg University, the Netherlands.

Alessio M. Pacces
Professor of Law and Finance, Erasmus School of Law, Erasmus University Rotterdam and Research Associate, European Corporate Governance Institute. We thank Sarah van den Brand for valuable research assistance.

    In this article a non-binding global standard for solution of cross-border insolvency proceedings is introduced. These Global Principles for Cooperation in International Insolvency Cases can be used both in civil-law as well as common-law jurisdictions, and aim to cover all jurisdictions in the world. They are addressed to judges, insolvency practitioners and scholars, and aim to contribute to an improved global architecture of international insolvency.


Bob Wessels
Prof. Dr. Bob Wessels is an independent legal counsel in Dordrecht, The Netherlands, and professor International Insolvency Law, University of Leiden, School of Law. He can be reached at: info@bobwessels.nl.
Article

Access_open Regulating Credit Rating Agencies in the European Union

Lessons from Behavioural Science

Journal The Dovenschmidt Quarterly, Issue 1 2013
Keywords behavioural economics, credit rating agenies, lulling effect, neuroeconomics, due diligence
Authors Fabian Amtenbrink and Klaus Heine
AbstractAuthor's information

    Since the beginning of the global financial and economic crisis, the search for its causes has been in full flight on both sides of the Atlantic. Inter alia, fundamental failures in the evaluation of risk and the role that Credit Rating Agencies (CRAs) play in the assessment of credit risk are discussed. More specifically, the question is raised as to what the role of CRAs is in the financial markets, why this role may be problematic and how the main weaknesses of the present system can be addressed in the European Union (EU) and elsewhere. This contribution does not aim to provide a discussion of all theoretical aspects that might be involved in an economic analysis of CRAs, but to better understand the main behavioural economics and normative arguments that may be related. Thereby, the current EU regulatory framework on CRAs and credit ratings will be scrutinized. The basic hypothesis of this contribution is that the current and proposed future EU regulatory framework does not fully succeed in effectively tackling failures in the CRA market, because insights from behavioural economics are widely neglected.


Fabian Amtenbrink
Dr. Amtenbrink is Professor of European Union Law at the Erasmus School of Law, Erasmus University Rotterdam, The Netherlands. He is also Visiting Professor at the College of Europe (Bruges).

Klaus Heine
Dr. Heine is Professor of Law and Economics and Jean Monnet Chair of Economic Analysis of European Law at the Erasmus School of Law, Erasmus University Rotterdam, The Netherlands.
Article

Keeling Schedules and Clarity in Amending Legislation

Journal European Journal of Law Reform, Issue 1 2013
Keywords Keeling schedule, amending legislation, PACE
Authors Ronan Cormacain
AbstractAuthor's information

    Most legislation proceeds by way of amending existing legislation. It is difficult for the amending legislation to set out both the changes being made to the law as well as what the law will be after the changes. Various techniques for achieving clarity in amending legislation are analysed. The article concludes that the Keeling schedule is a useful tool for this purpose.


Ronan Cormacain
Consultant Legislative Counsel.
Article

The Regularization of Undocumented Immigrants in the United States

The Spanish Solution

Journal European Journal of Law Reform, Issue 1 2013
Keywords undocumented immigrants, migration policy, regularization process, social assimilation, economic crisis
Authors Oscar Celador Angón
AbstractAuthor's information

    The aim of this article is to offer solutions to the problem of undocumented immigrants in the United States, using the Spanish migration model as a possible solution. During the last decade Spain has been the European country that has received more migration flows due to his economic development. Spain has used the knowledge and experience of other European host societies to design a migration model, which avoids the social conflicts arising from the coexistence of large numbers of undocumented immigrants, and that could provide answers to the problems faced by the US system.


Oscar Celador Angón
Oscar Celador Angón is Professor of Law and Director of the Department of International Law, Ecclesiastical Law and Philosophy of the Universidad Carlos III de Madrid.
Article

Continuous Mixed Forestry and the Citizens Forest Model

Journal European Journal of Law Reform, Issue 1 2013
Keywords continuous mixed forestry in Europe, citizen forest society, forest law reform, climate change, social forest ethics
Authors J.W. Simon and W. Bode
AbstractAuthor's information

    Climate change, air pollution and especially short-rotation forestry are the main causes for increasing detrimental effects on forests. Therefore, it is urgently necessary to find effective counteractions to this damage so that forests will become resistant, grow sustainably and are more economically effective and thus contribute optimally to the common welfare for all citizens. ‘Continuous mixed forestry’, in contrast to the normally used short-rotation or age-classed-forestry, is one suitable model to counteract climate change and air pollution in this way on both the local and national level. It is forestry without clear-cuts, biocides and with soft logging by continuous thinning and natural regeneration.The necessary change to this sustainable cultivation model is generally possible and necessary all over Europe and in other areas of the world. A very good chance for this type of forestry is available now within the framework of selling state-owned forests to private investors. This selling is planned by governments in some countries like the Great Britain1xThe Guardian, 22 December 2010, For sale: all of our forests. Not some of them, nor most of them – the whole lot, 11:55 GMT; Frankfurter Allgemeine Zeitung (2011), In love of the forest (Aus Liebe zum Forst), 4 February, No. 29, p. 5. But the British Government has apparently changed its view, see: The Guardian, 17 February 2011, Timber! Cameron in U-turn over forests sell-off, p. 1. and has been partly realised on a large scale in Germany.2xE.g. Lower House of the German Parliament (2009), answer of the Federal Government to the small question … Privatisation of forests by the Federal Institute of Real Estate Tasks, 16. Election period, Drucks. 16/14115, 30 September 2009. This article proposes selling the state-owned forests to a central, private national heritage foundation as a first step instead of transferring them with their traditional, mismanaged short rotation or age-classed forestry to private investors who would continue the state mismanagement. The task of the foundation would be to organize the ‘citizen forest society’ as a social-ethics–based society that is privately owned by citizens and the foundation. This would generate ecological advantages for the forest and moreover long-lasting profits for citizens, because the foundation would establish other organizations where the citizens become responsible owners of ‘their’ forest without any governmental or third-party influence.This proposal describes a solution to the demands of social-oriented ethics, which are primarily focused on the cooperation of responsible persons, represented by the private ownership of the forests, and directed by a responsible foundation.

Noten

  • 1 The Guardian, 22 December 2010, For sale: all of our forests. Not some of them, nor most of them – the whole lot, 11:55 GMT; Frankfurter Allgemeine Zeitung (2011), In love of the forest (Aus Liebe zum Forst), 4 February, No. 29, p. 5. But the British Government has apparently changed its view, see: The Guardian, 17 February 2011, Timber! Cameron in U-turn over forests sell-off, p. 1.

  • 2 E.g. Lower House of the German Parliament (2009), answer of the Federal Government to the small question … Privatisation of forests by the Federal Institute of Real Estate Tasks, 16. Election period, Drucks. 16/14115, 30 September 2009.


J.W. Simon
University of London, Institute for Advanced Legal Studies/Centre for Ethics and Law in the Life Sciences, Medical University Hannover.

W. Bode
Leit.Min.R., Ministerium für Umwelt und Verbraucherschutz/Saarland, 66121 Saarbrücken, Germany.
Article

Responsive Law Reform: A Case Study in Privacy and the Media

Journal European Journal of Law Reform, Issue 1 2013
Keywords law reform, regulatory theory, privacy, free speech, media
Authors Megan Richardson
AbstractAuthor's information

    This article develops a regulatory theory of law reform for common law jurisdictions drawing on a model of responsive regulation and applies it to a case study in Privacy and the Media with particular reference to law reform initiatives in Australia, New Zealand and the UK.


Megan Richardson
Professor of Law and Co-Director Centre for Media & Communications Law, Melbourne Law School, The University of Melbourne, former member of an International Advisory Panel for the New South Wales Law Reform Commission reference on invasion of privacy. This article was substantially written at the Institute for Advanced Legal Studies, where I had the privilege of being a Research Fellow in September–December 2012. I am grateful to the Institute for allowing me to spend three months in this excellent facility and also to my home institution, The Melbourne Law School, for supporting my research period abroad. The ideas in this article were presented at seminars at the Institute and at the Dickson Poon School of Law, King’s College London. I am grateful to those who attended for their helpful comments and especially to Tanya Aplin, Lyria Bennett Moses, Desmond Browne QC, Stewart Dresner, James Michael and Jan Oster. Thanks also to my colleagues Andrew Kenyon and Jason Bosland for additional helpful insights.
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