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Article

The Ringworm Case and the Lost Opportunities for the Construction of a Collective Healing Process

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2017
Keywords public health, apology, disclosure of medical errors, collective healing process, ringworm case
Authors Dr. Nili Karako Eyal
AbstractAuthor's information

    The issue of apology and disclosure of medical errors in the context of the physician- patient relationship has attracted increasing attention in recent years. On the other hand, it has received little attention in the context of public health activities, thus missing the collective healing potential of apologizing and providing information to the public.
    The purpose of this paper is to enrich the discussion regarding apologies and disclosure errors in the context of public health. To fulfil this purpose, the paper addresses the ringworm case, which is a well- known episode in the history of Israeli public health policy. More specifically, the paper focuses on a decision handed by the Israeli Supreme Court in the Eibi Case (2015), which recognized a duty to inform ringworm patients about the medical error involved in their treatment and its results. The paper seeks to examine whether this decision succeeded where other legal means failed, in the construction of a collective healing process. The paper concludes that although the Eibi Case provided the court an opportunity to contribute to the creation of a collective healing process of ringworms patients, the decision didn’t fully realize this potential.


Dr. Nili Karako Eyal
Dr. Nili Karako-Eyal is a Senior Lecturer at the School of Law, The College of Management Academic Studies, Rishon LeZion, Israel.
Article

Therapeutic Justice and Vaccination Compliance

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2017
Keywords public health, trust, vaccination, health law, health policy
Authors Shelly Kamin-Friedman
AbstractAuthor's information

    Recent decades have witnessed the appearance of multiple grounds for vaccine hesitancy. One of the options to deal with this phenomenon is legislative. Given that vaccination enforcement through law raises allegations of infringement of constitutional rights, interventions seeking to promote vaccination compliance should rather address the factors that influence vaccine hesitancy, which are – by and large – related to trust in health authorities. Trust in health authorities may be promoted by a procedure for compensating the comparatively few vaccination victims reflecting a willingness to acknowledge liability and commitment to social justice.
    A qualitative study of the Israeli Vaccination Victim Insurance Law was conducted by the author. The study involved document content analysis (legislative protocols, Court judgments) and semi-structured in-depth interviews with informants representing different legal, medical and ethical perspectives. The thematic analysis found that the Israeli Vaccination Victim Insurance Law and its implementation in Court do not attain their therapeutic potential with respect to the promotion of trust. Barriers to claim submissions and the denial of all claims submitted according to the law do not permit the acknowledgement of liability or the demonstration of the authorities’ commitment to social justice.
    Recognizing the therapeutic power of the Law may lead to adaptations or amendments promoting trust in the health authorities and subsequently fostering vaccine compliance.


Shelly Kamin-Friedman
Adv. Shelly Kamin-Friedman, LL.B, MHA is a specialist in Health Law and a Ph.D. candidate at Ben-Gurion University of the Negev, Be'er Sheva, Israel.
Article

Intersecting Professions

A Public Health Perspective on Law to Address Health Care Conflicts

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2017
Keywords public health, Alternative Dispute Resolution, public law, health promotion
Authors Michal Alberstein and Nadav Davidovitch PhD
AbstractAuthor's information

    This paper examines the intersection between the two professions – law and medicine – with reference to systematic transformations that have characterized their development in the past century. In particular, the paper examines the co-emergence of the new public health and health promotion scholarship along with the development of the Alternative Dispute Resolution (ADR) movement in the second half of the 20th century. The two movements, with their later developments, have aspired to change the focus of professionals in the field, and both have been tremendously successful on the one hand, and on the other have remained marginal to mainstream training and identity building of contemporary lawyers and doctors.


Michal Alberstein
Michal Alberstein is a Full Professor at The Faculty of Law, Bar-Ilan University, Israel. She is also the Primary Investigator on an ERC consolidator grant to study Judicial Conflict Resolution (JCR).

Nadav Davidovitch PhD
Nadav Davidovitch, MD, MPH, PhD is an epidemiologist and public health physician. He is a Full Professor and Director, School of Public Health, Faculty of Health Sciences and the Guilford-Glaser Faculty of Business and Management at Ben-Gurion University of the Negev in Israel.

Viktor Rák
Legal advisor of the Hungarian National Chamber of Civil Law Notaries.

Tamás Balogh
Legal advisor of the Hungarian National Chamber of Civil Law Notaries.

Írisz E. Horváth
Junior assistant researcher, Pázmány Péter Catholic University, Faculty of Law and Political Sciences, Budapest.

Ulrich Karpen
University of Hamburg/Germany – Law School
Article

French Constitution, Droit Administratif and the Civil Code

Journal European Journal of Law Reform, Issue 3 2017
Keywords Droit Administratif, Civil Code, Conseil d’État, public order
Authors Zia Akhtar
AbstractAuthor's information

    Droit Administratif in France is a separate branch of law that exists in parallel to the civil and criminal law. The law has been developed from the concept of separation of powers that is ingrained in the French constitution. Its concepts derive from the Code civil that is implemented in France since its inception in the Napoleonic era and this has undergone reform that has made the role of the judges more interventionist. The highest administrative court is the Conseil d’État, which is at the apex of the machinery of administrative courts that are an important part of public law’s discourse and there is a hierarchy of courts that consider appeals and regulate the norms of conduct of state officials towards the citizens. The judges receive induction and training before taking on the role of occupation and that has been inculcated in the French administrative court judges. This article looks at the separate system of administrative law and its success in preserving the necessary checks and balances in the constitution, which it is intended to protect. This is an examination of the developing concept of French justice, the doctrine of separation of powers and civil procedural changes that enable the grievance of citizens against officials to be heard more expeditiously.


Zia Akhtar
LLB (Lon), LLM (Lon), Gray’s Inn, PhD candidate (Sussex). Zia Akhtar is a leading writer on judicial review, regulatory law and EU law. He undertakes research in the comparative law between the common law and the civil law countries.
Article

Non-Legal Considerations in the Reasoning of the European Court of Human Rights

Journal European Journal of Law Reform, Issue 3 2017
Keywords ECHR, Convention, human rights, subsidiarity, pretence
Authors Kacper Zajac
AbstractAuthor's information

    This article discusses the role of non-legal considerations in the judgments of the European Court of Human Rights. First, it considers what legal instruments are available to the Court in interpreting the Convention Rights and why such instruments came to being in the first place. Second, the article identifies what types of non-legal considerations are taken into account by the Court and what impact they have on the Court’s decision-making process. The article argues that the Court pays considerable attention to such considerations and, in certain circumstances, it deploys available legal instruments, such as the margin of appreciation doctrine or fair balance test, to give those non-legal considerations a legal pretence. The article concludes that the importance of the non-legal factors in the decision-making process can be attributed to the vulnerable position of the European Court of Human Rights vis-à-vis the contracting states.


Kacper Zajac
Kacper Zajac is a LLM student at the London School of Economics and Political Science (LSE) specializing in European Human Rights. He graduated from Aberystwyth University with First Class Honours in 2015. Kacper has published in the area of international law and British constitutional law. He has also worked as a Researcher for the Society of Conservative Lawyers on the pamphlet ‘A Conservative Narrative on International Law: Past, Present and Future’.

    Under the Latvian Labour Law an employee has the right to terminate an employment contract with immediate effect, i.e. without complying with the statutory notice period of one month, if the employee has ‘good cause’. Under the Labour Law, ‘good cause’ is any situation, which, based on considerations of morality and fairness, would not allow for the employment to continue. If an employee terminates their employment contract for good cause the employer must pay severance to the employee based on the employee’s years of service with the employer and amounting to between one and four months’ average earnings. If the employee gives notice for good cause, this terminates the employment contract with immediate effect.
    Even if the employer disagrees with the reasons given in the termination notice, the employer cannot terminate the employment contract on any other ground and does not have the right to challenge the validity of the notice in court. However, if the employer suffers loss as a result of the immediate termination; its reputation is damaged based on the reasons given in the notice; or it has faced some other adverse consequence; the employer can bring a claim arguing that what is stated in the notice is untrue.


Andis Burkevics
Andis Burkevics is a senior associate with the Latvian office of law firm SORAINEN (www.sorainen.com).

    It was direct sex discrimination for a male employee who wished to take shared parental leave (SPL) to be entitled only to the minimum statutory pay where a female employee would have been entitled to full salary during an equivalent period of maternity leave, according to a first-instance decision from the Employment Tribunal (ET).


Anna Bond
Anna Bond is an Associate Solicitor at Lewis Silkin LLP.
Case Reports

2017/31 Lawful positive discrimination in favour of women (FR)

Journal European Employment Law Cases, Issue 3 2017
Keywords Discrimination (other), Positive discrimination
Authors Claire Toumieux and Susan Ekrami
AbstractAuthor's information

    Company agreement provisions granting a half-day of leave to female employees on International Women’s Day constitute lawful positive discrimination in favour of women.


Claire Toumieux
Claire Toumieux is a partner with Allen & Overy LLP in Paris (www.allenovery.com).

Susan Ekrami
Susan Ekrami is a senior associate with Allen & Overy LLP in Paris (www.allenovery.com).
Article

Access_open The Integrity of the Tax System after BEPS: A Shared Responsibility

Journal Erasmus Law Review, Issue 1 2017
Keywords flawed legislation, tax privileges, tax planning, corporate social responsibility, tax professionals
Authors Hans Gribnau
AbstractAuthor's information

    The international tax system is the result of the interaction of different actors who share the responsibility for its integrity. States and multinational corporations both enjoy to a certain extent freedom of choice with regard to their tax behaviour – which entails moral responsibility. Making, interpreting and using tax rules therefore is inevitably a matter of exercising responsibility. Both should abstain from viewing tax laws as a bunch of technical rules to be used as a tool without any intrinsic moral or legal value. States bear primary responsibility for the integrity of the international tax system. They should become more reticent in their use of tax as regulatory instrument – competing with one another for multinationals’ investment. They should also act more responsibly by cooperating to make better rules to prevent aggressive tax planning, which entails a shift in tax payments from very expert taxpayers to other taxpayers. Here, the distributive justice of the tax system and a level playing field should be guaranteed. Multinationals should abstain from putting pressure on states and lobbying for favourable tax rules that disproportionally affect other taxpayers – SMEs and individual taxpayers alike. Multinationals and their tax advisers should avoid irresponsible conduct by not aiming to pay a minimalist amount of (corporate income) taxes – merely staying within the boundaries of the letter of the law. Especially CSR-corporations should assume the responsibility for the integrity of the tax system.


Hans Gribnau
Professor of Tax Law, Fiscal Institute and the Center for Company Law, Tilburg University; Professor of Tax Law, Leiden University, The Netherlands.
Article

Access_open Corporate Taxation and BEPS: A Fair Slice for Developing Countries?

Journal Erasmus Law Review, Issue 1 2017
Keywords Fairness, international tax, legitimacy, BEPS, developing countries
Authors Irene Burgers and Irma Mosquera
AbstractAuthor's information

    The aim of this article is to examine the differences in perception of ‘fairness’ between developing and developed countries, which influence developing countries’ willingness to embrace the Base Erosion and Profit Shifting (BEPS) proposals and to recommend as to how to overcome these differences. The article provides an introduction to the background of the OECD’s BEPS initiatives (Action Plan, Low Income Countries Report, Multilateral Framework, Inclusive Framework) and the concerns of developing countries about their ability to implement BEPS (Section 1); a non-exhaustive overview of the shortcomings of the BEPS Project and its Action Plan in respect of developing countries (Section 2); arguments on why developing countries might perceive fairness in relation to corporate income taxes differently from developed countries (Section 3); and recommendations for international organisations, governments and academic researchers on where fairness in respect of developing countries should be more properly addressed (Section 4).


Irene Burgers
Irene Burgers is Professor of International and European Tax Law, Faculty of Law, and Professor of Economics of Taxation, Faculty of Business and Economics, University of Groningen.

Irma Mosquera
Irma Mosquera, Ph.D. is Senior Research Associate at the International Bureau of Fiscal Documentation IBFD and Tax Adviser Hamelink & Van den Tooren.

    De studie beoogt aan de hand van 87 dossiers van gezag- en omgangsonderzoeken door de Raad voor de Kinderbescherming (RvdK) meer inzicht te krijgen in situaties waarin de ene ouder de andere ouder in het kader van een (echt)scheiding beschuldigt van seksueel misbruik van kinderen. De dossiers zijn gekoppeld aan bijbehorende civielrechtelijke beschikkingen en het Justitiële Documentatiesysteem. Hierdoor is de problematiek van verschillende kanten belicht. Uit het onderzoek blijkt dat het over het algemeen complexe zaken zijn, waarin naast de BSKM nog meer problemen zijn binnen de gezinnen. De aard van het vermeende seksueel misbruik is ernstig, en de kinderen gemiddeld jong. Regelmatig is de beschuldiging geuit bij politie en hulpverlening vóór de rechtszaak en het raadsonderzoek. De rechtszaken betreffen over het algemeen procedures omtrent gezag, verdeling van zorg- en opvoedingstaken en omgang. Vrijwel nooit is vast te stellen of het seksueel kindermisbruik heeft plaatsgevonden. Slechts drie ouders zijn veroordeeld voor het misbruik. Eén vader is vrijgesproken, twee vaders zijn niet nader vervolgd omdat zij ten onrechte als verdachte waren aangemerkt. Civiele rechters die beslissingen moeten nemen over de kinderen staan voor een dubbel dilemma: het al dan niet serieus nemen van de beschuldiging kan schadelijke gevolgen hebben voor kinderen, en daarnaast kan, vanwege de onzekerheid over de gegrondheid, een beslissing tot nader onderzoek ook schadelijk zijn omdat dit het proces verlengt. De RvdK adviseert de rechtbank regelmatig om definitieve beslissingen omtrent de kinderen aan te houden, in afwachting van bijvoorbeeld hulpverlening of een ondertoezichtstelling. Het is echter doorgaans niet de waarschijnlijkheid van het SKM, maar de gevolgen van de beschuldiging zelf waar de RvdK zijn zorgen regelmatig over uit. Hierdoor lijkt het dat de beschuldiging, en niet het potentiële misbruik, een katalysator is voor onwenselijke gevolgen voor de kinderen.
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    This study aims to provide insight into allegations of child sexual abuse in the context of divorce and related proceedings by reviewing 87 files concerning investigations by the Dutch child protective service (CPS). These files are linked to the court rulings about the families in question, as well as the criminal record database. This makes it possible to look at this problem from various angles. The study shows that the cases are generally complex, in which aside from the allegations of sexual abuse, other issues existed within the families. The nature of the alleged abuses were serious, and the children were relatively young. Often an allegation was made to the police and social work organizations before the civil proceeding and investigation by the CPS. The proceedings generally concerned matters relating to the custody of and access to the children. It was very rarely possible to determine whether the child sexual abuse had actually taken place. Only three fathers were convicted of the abuses concerned. One father was acquitted and two fathers were wrongfully identified as suspects. Civil judges who have to make decisions about the children are faced with a double dilemma: firstly, the decision of whether or not to take the allegation seriously can have damaging consequences for the children involved. Secondly, the choice to proceed with further investigation and aid within the family, due to uncertainty as to the veracity of the allegation(s) in question, can lead to a prolonged process that damages the child. The study shows that the CPS often advises the court to postpone definitive decisions about the children so that social work organizations can provide more information on the matter at hand. However, the study also shows that it is generally not the potential abuse, but the allegation itself that the CPS expresses concern about.


Anne Smit MSc.
Anne Smit is a PhD Candidate at the VU University Amsterdam. She is currently writing her PhD dissertation on the topic: ‘Allegations of Sexual Abuse of Children in Divorce Procedures: Towards Evidence-Based Guidelines’.

Masha Antokolskaia
Masha Antokolskaia is a professor of family law at the VU University Amsterdam. She is head of the Amsterdam Centre of Family Law (ACFL), as well as a member of the Commission on European Family Law (CEFL) and of the Executive Council of the International Society of Family Law. Her main fields of interest are comparative family law, European family law, empirical family law studies and history of family law.

Catrien Bijleveld
Catrien Bijleveld is the director of the Netherlands Institute for the Study of Crime and Law Enforcement (NSCR). Prior to this she worked as a senior researcher at NSCR. Her research activities focus on research into criminal careers and (experimental) research into the effectiveness of interventions, juvenile sex offenders, historical trends and the intergenerational transmission of delinquent behaviour. Catrien Bijleveld is also a member of the Royal Dutch Academy of Sciences (KNAW).
Article

Consultations, Citizen Narratives and Evidence-Based Regulation

The Strange Case of the Consultation on the Collaborative Economy

Journal European Journal of Law Reform, Issue 1-2 2017
Keywords Better Regulation, consultations, evidence-based lawmaking, sharing economy, narratives
Authors Sofia Ranchordás
AbstractAuthor's information

    The 2015 Better Regulation Communication advocates an evidence-based approach to regulation, which includes better consultations and broader civic engagement. In this article, I consider the recent EU public consultation on the regulatory environment of online platforms and the collaborative economy. I enquire in this context whether citizens were seriously regarded as evidence providers and how their knowledge that materialized in individual narratives could contribute to more legitimate and thus better regulation. I argue that an evidence-based approach to regulation should also include citizen narratives as they can provide first-hand and diverse perspectives, which might not be considered in standard consultation questions. I contend that citizen narratives can be particularly useful in complex and rapidly evolving fields where there is still little empirical evidence and where participants are likely to have diverse personal experiences. Drawing on the literature on narratives, I contend that this method of collecting information can help regulators identify new problems and structure solutions in rapidly changing and diverse regulatory fields such as the collaborative economy.


Sofia Ranchordás
Sofia Ranchordás is an Assistant Professor of Administrative and Constitutional Law at Leiden Law School, the Netherlands, and Affiliated Fellow of the Information Society Project at Yale Law School.
ECJ Court Watch

Case C-653/16. Discrimination

Jitka Svobodová v Česká republika – Okresní soud v Náchodě, reference lodged by the Nejvyšší soud České republiky (Czech Republic) on 19 December 2016

Journal European Employment Law Cases, Issue 2 2017

    On 6 December 2016, the Danish Supreme Court delivered its long-awaited judgment on the case of Ajos, addressing the issue of whether a private employer was entitled to refuse to make a redundancy payment in reliance on the former section 2a(3) of the Danish Salaried Employees Act or whether the general principle against discrimination on grounds of age needed to take precedence. It concluded that the employer was entitled to refuse to pay.


Christian K. Clasen
Christian K. Clasen is a partner at Norrbom Vinding, Copenhagen.
Article

Should Mediation Be a Core Part of a Legal Degree in the Netherlands?

An Opportunity Not to Be Missed, Especially for Corporate General Counsels of the Future!

Journal Corporate Mediation Journal, Issue 1 2017
Authors Claire Mulder
Author's information

Claire Mulder
C.S.A. Mulder LLM, is based in London and is Editor of the Corporate Mediation Journal.
Case Reports

2017/9 The influence of the threat of terrorism on the right to strike (NL)

Journal European Employment Law Cases, Issue 1 2017
Keywords Industrial action, Strike
Authors Ruben Houweling and Amber Zwanenburg
AbstractAuthor's information

    The Dutch Cantonal judge prohibited a strike because the safety of passengers could not be guaranteed. At the hearing, which took place a few days after the Berlin Christmas market attacks, weight was given to the threat of terrorism. Nor is this the first time the threat of terrorism has been explicitly referred to by a Dutch court in a case concerning the right to strike.


Ruben Houweling
Ruben Houweling and Amber Zwanenburg are respectively a professor and a lecturer of Labour Law at the Erasmus University Rotterdam.

Amber Zwanenburg
Article

Legal Loophole or Just a Matter of Interpretation?

On the Outer Space Treaty’s Methodology Test with the Diversification of Space Activities

Journal International Institute of Space Law, Issue 1 2017
Authors Merve Erdem
Author's information

Merve Erdem
Department of International Law, Ankara University Faculty of Law, Cemal Gürsel Caddesi No: 58, 06590, Cebeci, Ankara, Turkey, erdemm@ankara.edu.tr
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