Search result: 56 articles

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Year 2014 x

Michel Kallipetis
Michel Kallipetis QC FCIArb is the former Head of Littleton Chambers, and has 40 years’ experience as a practising barrister in the field of general commercial, professional negligence and employment work.

Colin Rule
Article

Access_open Insurance as a Remedy against Financial Crisis

Journal The Dovenschmidt Quarterly, Issue 1 2014
Keywords financial crisis, systemic risk, insurance
Authors Michael Faure and Klaus Heine
AbstractAuthor's information

    To some extent, the financial crisis could be considered as comparable to a natural catastrophe. We address the question whether it might be possible to insure against financial crisis, similarly as insurance is possible in case of natural catastrophes. Thereby we extend the market mechanism as far as possible by proposing a three-layered insurance model containing self-insurance, insurance by insurance companies and insurance by the government. We argue that an advantage of this multi-layered structure is not only the provision of funds in case of a financial crisis, but also that it helps to prevent financial crisis. The preventive effect is due to market-driven check and balances between the three layers.


Michael Faure
Michael Faure is Professor of Comparative Private Law and Economics at the Erasmus School of Law, Erasmus University Rotterdam, 3000DR Rotterdam and METRO, Maastricht University, 6200 MD Maastricht, The Netherlands.

Klaus Heine
Klaus Heine is Jean Monnet Chair of Economic Analysis of European Law at the Erasmus School of Law, Erasmus University Rotterdam, 3000DR Rotterdam, The Netherlands
Article

Access_open Corporate Governance and the Great Recession

An Alternative Explanation for Germany's Success in the Post-2008 World

Journal The Dovenschmidt Quarterly, Issue 1 2014
Keywords Great Recession, Germany, corporate governance, institutional complementarity, EMU
Authors Pavlos E. Masouros
AbstractAuthor's information

    The ability of a nation to resist a crisis depends on the institutional or spatio-temporal fixes it possesses, which can buffer the effects of the crisis, switch the crisis to other nations or defer its effects to the future. Corporate governance configurations in a given country can function as institutional or spatio-temporal fixes provided they are positioned within an appropriate institutional environment that can give rise to beneficial complementarities.
    Germany seems to resist most effectively compared with other nations (be it nations of the insider or the outsider model of corporate governance) the effects of the post-2008 crisis. This article posits that this is due to an institutional complementarity between Germany's corporate governance system, its system of industrial relations and the monetary institutions of the European Monetary Union. The advent of shareholder value has blended in a beneficial way with an established system of cooperative collective bargaining, with traditional stakeholderist institutions, but also with the asymmetrical design of the EMU that benefits trade surplus countries, and this institutional complementarity has endowed Germany with a comparative advantage over other nations (particularly EU Member States) to pursue its export-led growth strategy and emerge as a champion economy amidst the crisis.


Pavlos E. Masouros
Assistant Professor of Corporate Law, Leiden University, The Netherlands; Attorney-at-Law, Athens, Greece.
Article

Human Rights in Islamic Law, Specifically the Guarantee of Procedural Justice

Journal European Journal of Law Reform, Issue 2 2014
Keywords Islamic law, procedural justice, human rights, rules of evidence, Cairo Declaration of Human Rights
Authors Mohamed Y. Mattar
AbstractAuthor's information

    International law guarantees several fundamental principles of procedural justice, such as presumption of innocence, the right against self-incrimination, the right to be tried without undue delay, the right to examine witnesses, and the right to legal assistance. In this article I examine whether Islamic law guarantees similar procedural protections and demonstrate how Islamic law provides for basic human rights as well as general principles that may serve as guidelines in procedural justice. These include the principle of non-retroactivity, the principle of personal accountability, the principle of no crime or punishment without law, the right to be presumed innocent until proven guilty, and the right to defence. The article also identifies rules of evidence provided by Islamic law which are designed to protect the accused.


Mohamed Y. Mattar
Mohamed Y. Mattar is a Senior Research Professor of International Law and the Executive Director of The Protection Project at The Johns Hopkins University School of Advanced International Studies (SAIS).
Article

The Manifestation of Religious Belief Through Dress

Human Rights and Constitutional Issues

Journal European Journal of Law Reform, Issue 2 2014
Keywords religion, religious freedom, burqa, hijab, Muslim
Authors Anthony Gray
AbstractAuthor's information

    Jurisdictions around the world continue to grapple with the clash between religious freedoms and other freedoms and values to which a society subscribes. A recent, and current, debate concerns the extent to which a person is free to wear items of clothing often thought to be symbolic of the Muslim faith, though the issues are not confined to any particular religion. Bans on the wearing of this type of clothing have often (surprisingly) survived human rights challenges, on the basis that governments had legitimate objectives in banning or restricting them. A pending case gives the European Court another chance to reconsider the issues. It is hoped that the Court will closely scrutinise claims of legitimate objectives for such laws; perceptions can arise that sometimes, governments are pandering to racism, intolerance and xenophobia with such measures, rather than seeking to meet more high-minded objectives.


Anthony Gray
Professor of Law, University of Southern Queensland, Australia.

    Under the Kafala system, which applies in all Arab countries, migrant workers must attain a work entry visa and residential permit, which is possible only if they are working for a domestic institution or corporation or a citizen of the respective country. Each and every employer is required, based on the Kafala system, to adopt all legal and economic responsibilities for all of the employer's workers during their contractual period. By giving wide-ranging powers and responsibilities unilaterally to employers, the Kafala system subjects workers to abysmal and exploitative working conditions, violence, and human rights abuses. Some of these problems have recently made headlines in the United States and in Europe in connection with the campus being built by New York University in Abu Dhabi. While NYU imposed a code of labor standards on its direct contractual partners, it claimed to have no means of controlling subcontractors. Nor did NYU try very hard, it seems, to verify compliance even by its direct contractual partners.
    Migrant workers make up at least 30 percent of the population of Saudi Arabia and 49 percent of Saudi Arabia's entire workforce. Employers control Saudi Arabia's Kafala system, in which migrant workers are the weakest link. Studies and international organizations report that foreigners employed in Saudi Arabia have returned home with many complaints. In 2006, Saudi Arabia re-examined all laws including its labor law. This re-examination resulted in abolishing some terms used in labor law, such as the kafala system, but the system remains as is. The new labor law includes many positive changes, but not enough according to the assessment of local and international scholars and observers. In this paper, I will reveal laws, practices and patterns that essentially cause the vulnerability of migrant workers, and I will suggest effective alternative strategies. This paper should contribute to our growing understanding of issues of concern for migrant workers in Saudi Arabia and other Arab countries and help to develop specific and necessary legal and institutional responses.


Majed M. Alzahrani
LL.M, Indiana University, Robert H. McKinney School of Law. The author would like to thank Professor Frank Emmert for advice and guidance in the production of this article.

    Much attention has already been paid to the relationship between European (family) law and law from Muslim majority countries in studies of private international law or of comparative law, often discussing family law institutions such as polygamy or repudiation. Among those institutions, there is one that has largely been neglected: kafala, a form of guardianship that is specific to Islamic law.
    The reception of this institution in the Member States raises several questions, such as its consequences in terms of legal parentage or its conformity with the best interest of the child or with public order. However, this contribution focuses on the migration angle since some difficulties may appear after this particular guardianship was pronounced abroad when the question of the entrance and the stay of the child with their guardians in a Member State arises.
    The research consists of determining whether some EU or international instruments could grant the guardians a right to request that ‘their’ child lives with them in their country and examines whether such a right is always desirable and justifiable. Taking France as an example, the author asks the following question: does not France, as a Member State of the European Union, have to ensure under European law and international obligations that the child and the couple will be able to live together on its territory?


Julie Malingreau
Julie Malingreau is a PhD candidate at the University of Utrecht, and holds an LLM in European Private Law at the University of Amsterdam, as well as a Master Degree in Law in Belgium. She currently works as a lawyer in Amsterdam, assisting with commercial contracts. Her areas of interest include national/European/International family law, Islamic law, Alternative Dispute Resolutions, private international law, human rights, intellectual property and labour law.

Prof. Arnaud de Graaf
Erasmus School of Law, Erasmus University Rotterdam.

Prof. dr. Klaus Heine
Erasmus School of Law, Tax Law Department, Erasmus University Rotterdam.

Jean-Marie de Poulpiquet
National Centre for Space Studies, Université Toulouse 1 Capitole, SIRIUS Chair
Article

Access_open What Makes Age Discrimination Special? A Philosophical Look at the ECJ Case Law

Journal Netherlands Journal of Legal Philosophy, Issue 1 2014
Keywords age discrimination, intergenerational justice, complete-life view, statistical discrimination, anti-discrimination law
Authors Axel Gosseries
AbstractAuthor's information

    This paper provides an account of what makes age discrimination special, going through a set of possible justifications. In the end, it turns out that a full understanding of the specialness of age-based differential treatment requires that we consider together the ‘reliable proxy,’ the ‘complete-life neutrality,’ the ‘sequence efficiency’ and the ‘affirmative egalitarian’ accounts. Depending on the specific age criteria, all four accounts may apply or only some of them. This is the first key message of this paper. The second message of the paper has to do with the age group/birth cohort distinction. All measures that have a differential impact on different cohorts also tend to have a differential impact on various age groups during the transition. The paper points at the practical implications of anti-age-discrimination law for differential treatment between birth cohorts. The whole argument is confronted all along with ECJ cases.


Axel Gosseries
Axel Gosseries is a permanent research fellow at the Belgian FRS-FNRS and a Professor at the University of Louvain (UCL, Belgium) where he is based at the Hoover Chair in Economic and Social Ethics.

José Monserrat-Filho
Brazilian Space Agency (AEB), Brazilian Association of Air and Space Law (SBDA), Brazilian Society for the Advancement of Science (SBPC)

James D. Rendleman
USSTRATCOM JFCC SPACE, Vandenberg Air Force Base, California, USA. Supervising Attorney, Operations, Space & International Law, Joint Functional Component Command for Space, United States Strategic Command, Vandenberg Air Force Base, California, USA. Member, State Bar of California. Associate Fellow, American Institute of Aeronautics and Astronautics. The views expressed in this paper are those of the author and do not reflect the official position of the U.S. Government, U.S. Air Force, or U.S. Strategic Command.

    This article discusses the possibility spouses have under the Rome III Regulation (EC Regulation 1259/2010) to choose the law applicable to their divorce. It discusses the limits and exceptions of this freedom to choose.


Dr. Thalia Kruger
Thalia Kruger is professor at the law faculty of the University of Antwerp, where she teaches and researches private international law, international civil procedure and international family law. She is also Honorary Research Associate at the University of Cape Town.
Article

Judicial Case Management and the Complexities of Competing Norms Occasioned by Law Reforms

The Experience in Respect of Criminal Proceedings in Botswana

Journal European Journal of Law Reform, Issue 1 2014
Keywords case management, Botswana, criminal proceedings, law reform, subpoena
Authors Rowland J.V. Cole
AbstractAuthor's information

    The Botswana judicial and legal system has undergone a wave of reforms over the past few years. These reforms include judicial case management, which was introduced to reduce unnecessary delays and backlog in the hearing of cases. The introduction of judicial case management necessitates a revision of the rules of court. While the rules of the courts principally relate to civil proceedings, criminal proceedings are principally regulated by the Criminal Procedure and Evidence Act. However, the revised rules of court contain provisions that seek to bring criminal proceedings in line with judicial case management. A number of these provisions are inconsistent with the Criminal Procedure and Evidence Act. This presents problems for the implementation of these rules as the Criminal Procedure and Evidence Act is superior to the rules in the hierarchy of laws. Consequently, the implementation of judicial case management in criminal proceedings may prove to be an arduous task, and urgent harmonisation of the competing provisions is required.


Rowland J.V. Cole
LLB (Hons) (Sierra Leone), LLM (UNISA), LLD (Stell), Senior Lecturer, Department of Law, University of Botswana.
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