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    D'après le Code civil, et ce dè s son origine, la séparation du couple marié peut donner lieu à une obligation légale de payer au conjoint, ou à l'ancien conjoint, une pension censée couvrir ses besoins. En dehors du mariage, point de lien alimentaire prévu par la loi. Depuis 1804, deux évolutions sociales majeures ont cependant changé le visage de la vie de couple. D'un côté, elle ne passe plus nécessairement par le mariage. D'un autre côté, seule sa dimension affective est censée lui donner sens, ce qui la rend éminemment fragile. La question se pose dè s lors de savoir si le lien alimentaire qui existe actuellement en droit belge entre conjoints désunis répond encore de maniè re adéquate et pertinente aux modes de fonctionnement de l'économie conjugale.
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    According to the Civil code, and in view of its development, the separation of a married couple can give rise to a legal obligation to pay maintenance to the other spouse, or ex-spouse, in order to cover his or her needs. In contrast, outside marriage, no statutory maintenance is available. However, since 1804, two major social evolutions have changed the way of life of couples. On the one hand, maintenance no longer flows inevitably from marriage. On the other hand, only the ‘love’ dimension of a relationship supports the provision of maintenance, which makes this claim eminently fragile.
    The question then arises as to whether the maintenance between separated spouses which is presently provided for under Belgian law still adequately and appropriately serves the functioning of the conjugal economy.
    In addition, the absence of maintenance rights for unmarried couples also raises questions. The contribution proposes a reconsideration of the right to maintenance between all couples, married or not, on the basis of other justifications, in particular the solidarity which couples establish during their shared lives.


Dr. Nathalie Dandoy
Nathalie Dandoy is lecturer at the catholic University of Louvain. She is member of the research centre of Family Law (Cefap-UCL). Her main research area concerns the maintenance rights between family members. She is member of editorial committee of Revue trimestrielle de droit familial and Journal des Juges de paix et de police.
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).
Article

Statutory Interpretation in Multilingual Jurisdictions

Journal European Journal of Law Reform, Issue 3 2013
Keywords drafting, multilingual, translation, interpretation, authenticity
Authors Odethie Birunga
AbstractAuthor's information

    Considering that every piece of legislation is subject to legal interpretation, its practicability depends highly on successful interpretation. In any legislation drafted in more than one language, divergence in meanings of versions is not only possible, but inevitable. It is not a simple task to draft in a way so that contexts are translated and included in all different language versions so that it becomes one meaningful legislation. While relying on one version only in the course of interpreting a piece of legislation may sound a lot easier, there could be ambiguous passages which may be clarified by consulting other versions. The existence of discrepancies between the versions of legislation is neither a smooth sail in multilingual environment.


Odethie Birunga
Odethie Birungi Kamugundu is a Principal State attorney in the ministry of Justice Rwanda since 2010 in the Legislative drafting department which drafts, coordinates and oversees the drafting of laws in Rwanda. Prior to that, she worked in the National Public Prosecution as a prosecutor from 2002 to 2010. She graduated in Law (LLB) from the National University of Rwanda in 1999, and in Legislative Drafting (LLM) from the University of London- Institute of Advanced Legal Studies in 2012.
Article

The Principle of Ultra Vires and the Local Authorities’ Decisions in England

Journal European Journal of Law Reform, Issue 3 2013
Keywords ultra vires, administrative decisions, legislative drafting, validity and invalidity of local authority administrative decisions, misuse of discretion
Authors Charles Aguma
AbstractAuthor's information

    The hypothesis of this article is that valid administrative decisions from local authorities are guaranteed via clear and precise enabling clauses in the primary legislation. The article argues that the style of drafting local authorities’ legislations influences decisions taken by local authorities. First, legislations need to be drafted in a style that clearly and precisely spells out the limits of powers of the local authorities in order to provide sufficient guidance to local authorities’ administrators to act lawfully. In attempting to exercise implied powers conferred by the imprecise enabling legislation, however, local authorities tend to go beyond intended legal powers and as a result take unreasonable, arbitrary and invalid decisions. More so, drafters rarely provide sufficient guidance about which considerations are properly relevant to the exercise of discretion and which are not. Secondly, obscure, wide and ambiguous enabling clauses in the primary legislations are substantial causes of courts’ misinterpretation of legislation as understanding the limits of the powers of the local authorities is a challenge. On the other hand, it is questionable whether the whole range of activities performed by a local authority by invoking implied powers, while exercising discretion, under the umbrella of doing anything that is calculated to facilitate or is conducive to or incidental to the discharge of any of its functions can be regarded as lawful. This article attempts to respond to that question. Although the principle of ultra vires requires the strict observance of the limits of the powers conferred in legislation, local authorities tend to invoke widely drafted provisions to perform activities that are said to be incidental to the express powers of which courts may declare invalid.


Charles Aguma
Charles Aguma graduated in Legislative Drafting (LLM) from the University of London- Institute of Advanced Legal Studies in 2012.
Editorial

Editorial

Journal European Journal of Law Reform, Issue 3 2013
Authors Cherie Booth and Helen Xanthaki
Author's information

Cherie Booth
Cherie Booth, QC, is a leading barrister specialising in public law, human rights, employment and European Community law, arbitration and mediation.

Helen Xanthaki
Professor Helan Xanthaki is a Senior Lecturer at the Institute of Advanced Legal Studies (School of Advanced Study, University of London), and the Academic Director of the Sir William Dale Centre for Legislative Studies there.

    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.

    The Dutch non-profit Centre for Research on Multinational Corporations (SOMO) and Amnesty International – Netherlands (AI-NL) commissioned in 2012 a study on transparency of multinational enterprises to the Utrecht University’s Molengraaff Institute for Private Law. With this study SOMO and AI-NL aim to substantiate the need for enhancing corporate transparency in order to stimulate responsible business conduct and be able to hold companies to account for adverse impacts they cause or contribute to.


Joris Oldenziel
Joris Oldenziel is program manager and senior researcher at the Centre for Research on Multinational Corporations (SOMO).

Heleen Tiemersma
Heleen Tiemersma is business and human rights specialist at Amnesty International.
Article

Access_open Multinationals and Transparency in Foreign Direct Liability Cases

The Prospects for Obtaining Evidence under the Dutch Civil Procedural Regime on the Production of Exhibits

Journal The Dovenschmidt Quarterly, Issue 3 2013
Keywords foreign direct liability, corporate social responsibility, transparency document disclosure, Dutch Shell Nigeria case
Authors Liesbeth F.H. Enneking
AbstractAuthor's information

    On 30 January 2013, the The Hague district court rendered a final judgment with respect to a number of civil liability claims against Royal Dutch Shell (RDS) and its Nigerian subsidiary Shell Petroleum Development Company of Nigeria (SPDC) that had been pursued by four Nigerian farmers and the Dutch NGO Milieudefensie in relation to various oil spills from SPDC-operated pipelines in the Nigerian Niger Delta. This case is the first Dutch example of a broader, worldwide trend towards similar transnational civil liability procedures against multinational corporations for harm caused to people and planet in developing host countries. This worldwide trend towards so-called ‘foreign direct liability cases’ and the Dutch Shell Nigeria case in particular raise many interesting socio-political as well as legal questions. This article will focus on the question what the prospects are for plaintiffs seeking to pursue such claims before a Dutch court when it comes to obtaining evidence under the Dutch civil procedural regime on the production of exhibits. This is a highly relevant question, since the proceedings in the Dutch Shell Nigeria case seem to indicate that the relatively restrictive Dutch regime on the production of exhibits in civil procedures may potentially impose a structural barrier on the access to remedies before Dutch courts of the victims of corporate violations of people and planet abroad.


Liesbeth F.H. Enneking
Liesbeth Enneking is a Postdoctoral Research Fellow at UCALL, Utrecht University’s multidisciplinary Centre for Accountability and Liability Law, and an Assistant Professor of Private International Law at Utrecht University’s Molengraaff Institute for Private Law. The author would like to thank prof. I. Giesen for comments on an earlier version of this article.
Article

Access_open Multinational Corporations and Human Rights

Civil Procedure as a Means of Obtaining Transparency

Journal The Dovenschmidt Quarterly, Issue 3 2013
Keywords civil litigation, discovery, human rights, multinationals
Authors R.R. Verkerk
AbstractAuthor's information

    This article explores the degree in which civil procedural rules may promote transparancy from multinationals about human rights policies and allegations of human rights violations.


R.R. Verkerk
Remme Verkerk practices law at Houthoff Buruma (Rotterdam).
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

Access_open The Opacity of a Multinational Company’s Organization, Legal Structure and Power

What Type of Corporate Information Must a Multinational Company Make Public Pursuant to Dutch Law? Options for Improving Dutch Law: Better Access to Corporate Information for Stakeholders

Journal The Dovenschmidt Quarterly, Issue 3 2013
Keywords transparency, CSR disclosure, corporate legal structure, legal framework for corporate reporting, integrated reporting
Authors Tineke E. Lambooy, Rosalien A. Diepeveen, Kim Nguyen e.a.
AbstractAuthor's information

    This article describes the types of information that a multinational company must make public pursuant to Book 2 of the Dutch Civil Code, the Act on Financial Supervision and the Commercial Registers Act. We ascertain that: (i) the Dutch Trade Register fails in providing adequate information about the foreign parts of a group; (ii) the annual reporting laws fail to require companies to provide an insight in the group legal structure, the business organization and the corporate social responsibility profile of a multinational company; and (iii) the Act on Financial Supervision fails to include disclosure requirements regarding the corporate social responsibility profile of a listed company. Different possible legislative amendments are provided in this article that could enhance transparency concerning a Dutch multinational company’s business organization, the legal structure and its corporate social responsibility profile, so that corporate information is better accessible for stakeholders. We conclude that most of these improvements are not limited to the Dutch legal system, but can be seen in the light of a global trend of increased corporate transparency. With this article, we hope to contribute to a new mind-set whereby transparency is stimulated, by offering concrete (policy) tools.


Tineke E. Lambooy
Dr. T.E. Lambooy, LL.M., is an associate professor at Utrecht University’s Molengraaff Institute for Private Law and at Nyenrode Business University’s Center for Sustainability. She is the author of Corporate Social Responsibility. Legal and Semi-Legal Frameworks Supporting CSR (Kluwer, 2010).

Rosalien A. Diepeveen

Kim Nguyen
P.K. Nguyen obtained her LL.M. degree at Utrecht University Law School.

Sander van ’t Foort
R.A. Diepeveen and S. van ’t Foort are currently pursuing an LL.M. degree at Utrecht University Law School. The authors are very grateful to R. Hordijk, LL.M., for supporting them in the research on this topic and to K. Hooft, LL.M., for reviewing the draft contribution.

P.J. Blount
Report based on blogs posted on Res Communis by P.J. Blount (http://rescommunis. olemiss.edu).
Article

De wetgevende macht van de media?

Een kwantitatieve analyse van media-effecten op de behandeling van wetsvoorstellen

Journal Res Publica, Issue 4 2013
Keywords media effects, legislation, policy process, lawmaking, Dutch politics, newspaper coverage
Authors Lotte Melenhorst
AbstractAuthor's information

    The media are a much-discussed subject in both the scientific and the public debate on the functioning of democracy. Nevertheless, there is relatively little empirical research on the effects of media on the most fundamental aspect of politics: the legislative process. However, this type of research is important because it helps us gain insight into the influence journalists exert. This study analyses the influence of media attention for bills on the legislative process in the Netherlands. A quantitative analysis of the newspaper coverage for recently discussed bills indicates that the parliamentary process is influenced by this coverage. This first study of media-effects on the Dutch legislative process suggests that more media-attention leads to the introduction of more amendments by both members of government and members of parliament.


Lotte Melenhorst
Lotte Melenhorst is promovenda bij het Instituut voor Politieke Wetenschap van de Universiteit Leiden. Haar onderzoek maakt deel uit van een door NWO gefinancierd VIDI-project over de relatie tussen media en politiek en concentreert zich op de rol van de media bij de totstandkoming van wetgeving.
Research Note

Competitie en samenwerking bij ideologische bewegingen

Turkse organisaties in Amsterdam en Berlijn, 1965-2000

Journal Res Publica, Issue 4 2013
Authors Floris Vermeulen
Author's information

Floris Vermeulen
Floris Vermeulen is universitair hoofddocent bij de afdeling Politicologie en mede-directeur van het Instituut voor Migratie en Etnische Studies (IMES) van de Universiteit van Amsterdam.

Stephan Keukeleire
Stephan Keukeleire is als Jean-Monnet Professor verbonden aan LINES (Leuven International and European Studies), KULeuven, en houder van de Total Chair in EU Foreign Policy aan het Europa College in Brugge. Hij is co-auteur van het boek The Foreign Policy of the European Union (2nd ed.).

Kolja Raube
Kolja Raube is als senior researcher verbonden aan het Leuven Centre for Global Governance Studies. Hij is ook programmacoördinator van en docent in de Master of European Studies: Transnational and Global Perspectives van de KULeuven.
Article

De substantiële vertegenwoordiging van moslimvrouwen

Vertegenwoordigende claims en responsiviteit in het Vlaamse hoofddoekendebat

Journal Res Publica, Issue 4 2013
Keywords political representation, representative claims, responsiveness, women’s substantive representation, the headscarf debate, women’s interests
Authors Eline Severs, Karen Celis and Petra Meier
AbstractAuthor's information

    Recently, scholars have propagated a ‘claim-based’ approach towards the study of women’s substantive representation. In this article, we challenge the relativism of such a ‘claim-based’ approach and explore the relevance of the concept of ‘responsiveness’ as a democratic criterion. We do so, more specifically, through a study of Muslim women’s substantive representation in the Flemish headscarf debate. We identify claims to speak for Muslim women formulated by (1) political parties and (2) Muslim women and (minority) women’s associations and examine the congruence between their respective claims. The important incongruence found between the claims formulated by right-wing and liberal parties and those of Muslim women/women’s associations provides empirical backing to the acclaimed relevance of a relational evaluation of women’s substantive representation. We conclude that the criterion of responsiveness is invaluable because it allows us to evaluate if actors’ claims to speak for women account for women’s capacity to speak for themselves.


Eline Severs
Eline Severs is postdoctoraal onderzoeker aan de Vakgroep Politieke Wetenschappen van de Vrije Universiteit Brussel en lid van RHEA, het Centrum voor Gender & Diversiteit (VUB). Ze is ook de wetenschappelijk coördinator van het Steunpunt Gelijke Kansenbeleid. Haar onderzoek spitst zich toe op vraagstukken van politieke vertegenwoordiging en vertegenwoordigende democratie (inclusie, legitimiteit en representativiteit).

Karen Celis
Karen Celis is als onderzoeksprofessor verbonden aan de Vakgroep Politieke Wetenschappen van de Vrije Universiteit Brussel en lid van RHEA, het Centrum voor Gender & Diversiteit van de Vrije Universiteit Brussel. Ze verricht theoretisch en empirisch onderzoek naar de politieke vertegenwoordiging van groepen, gelijkekansenbeleid en ‘staatsfeminisme’.

Petra Meier
Petra Meier is hoofddocent aan het Departement Politieke Wetenschappen van de Universiteit Antwerpen en promotor-coördinator van het Steunpunt Gelijke Kansenbeleid, een consortium van de vijf Vlaamse universiteiten. Haar onderzoek concentreert zich voornamelijk op de (re)presentatie van gender in politiek en beleid.
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