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Article

Towards Online Dispute Resolution-Led Justice in China

Journal International Journal of Online Dispute Resolution, Issue 2 2020
Keywords Online Dispute Resolution, smart court, internet court, access to justice, China
Authors Carrie Shu Shang and Wenli Guo
AbstractAuthor's information

    The use of online dispute resolution (ODR) in courts is a growing topic of interest. By focusing on the recent development of ODR-connected smart courts in China, this article explores ODR’s potential impact on Chinese legal systems from three aspects: role of courts and the legal profession, due process rights, and information safety. By focusing on changing dispute resolution theories – from emphasizing on conflict resolution to dispute prevention – the article argues that ODR-led court reforms rose to the centre because the reform caters to specific purposes of the recent series of reforms conducted under the auspices of the Rule of Law campaign, by prioritizing efficiency goals and attempting to enhance individualist justice experiences. In this article, we define the meaning of ODR in China and describe and categorize ODR technologies that are currently in use in China. Based on these general findings and promising technological options of ODR, we also recommend ways to better implement ODR in Chinese courts to take full advantage of technological advancements.


Carrie Shu Shang
Carrie Shu Shang, Assistant Professor, Coordinator, Business Law program, California State Polytechnic University, Pomona,

Wenli Guo
Wenli Guo, Ph.D., Assistant President, Beiming Software Co. Ltd., President, Internet Nomocracy Institute of Beiming Software Co. Ltd.,
Article

Paperless Arbitration

The New Trend?

Journal International Journal of Online Dispute Resolution, Issue 2 2020
Keywords paperless arbitration, arbitral practice and procedure, cybersecurity, new technology
Authors William Brillat-Capello, Laura Canet, Gillian Carmichael Lemaire e.a.
AbstractAuthor's information

    A webinar organized by Laura Canet and William Brillat-Capello, with Gillian Carmichael Lemaire, Yulia Mullina, Sebastián Partida, Sarah Tulip, Sergey Alekhin as speakers
    This webinar, organized by the associates of the Paris-based firm Betto Perben Pradel Filhol, was held at the beginning of the COVID-19 pandemic. Since then, arbitral practice and procedure have evolved considerably because of the increase in the number of paperless arbitrations and paperless hearings. The issues and challenges discussed below are still relevant to assess whether this trend will become the normal way of conducting arbitrations after the end of the current global health crisis or will simply constitute one of the tools available to practitioners. As the world is still dealing with this unprecedented crisis, the transcription of this webinar offers a snapshot of some of the earliest conclusions reached about how the pandemic is changing arbitration as we knew it.


William Brillat-Capello
William Brillat-Capello is associate at Betto Perben Pradel Filhol.

Laura Canet
Laura Canet is is associate at Betto Perben Pradel Filhol.

Gillian Carmichael Lemaire
Gillian Carmichael Lemaire is Independent Arbitration Practitioner.

Yulia Mullina
Yulia Mullina is Executive Administrator at the Russian Arbitration Center.

Sebastián Partida
Sebastián Partida is Corporate Counsel at Hewlett Packard Enterprise.

Sarah Tulip
Sarah Tulip is barrister at 3VB.

Serghei Alekhin
Serghei Alekhin is Counsel at Willkie Farr & Gallagher LLP.
Article

Smart Contracts and Smart Dispute Resolution

Just Hype or a Real Game Changer?

Journal International Journal of Online Dispute Resolution, Issue 2 2020
Keywords smart contracts, blockchain, arbitration, dispute resolution, contract law, distributed ledger technology, internet of things, cyber law, technology, innovation
Authors Mangal Chauhan
AbstractAuthor's information

    This article explains the functioning of smart contracts and technology underlying blockchain. This contribution aims to compare smart contracts with traditional contracts and discuss their situation under the present contract law. It further discusses possible issues that may arise out of the application of smart contracts, for instance, coding errors and programming defects. It studies the possible application of smart contracts to specific fields, such as e-commerce and consumer transactions and possible disputes arising out of this application. It divides the smart contracts into categories based on their form and discusses legal issues in regard to their application.
    Against the common perception that smart contracts will replace the judicial enforcement of traditional contracts, it argues that smart contracts will not replace the system but are rather another form of contracts to be governed by it. In fact, the interplay of smart contracts and contractual law creates possible legal issues as to their validity, recognition and enforcement. It provides possible solutions as to the legal issues arising out of the application of smart contracts under present contract law. The study concludes that a robust and ‘smart’ dispute resolution mechanism is required for dealing with disputes arising out of the application of new technology. Online or blockchain arbitration and other online dispute resolution mechanisms are argued to be better suited to dealing with such disputes.


Mangal Chauhan
Mangal Chauhan is Risk Analyst (Global Entity Management) at TMF Group, Amsterdam, Netherlands. Master of Laws (LL.M.) in Comparative and International Dispute Resolution from Queen Mary University of London, United Kingdom.

    States apply different material conditions to attract or restrict residence of certain types of migrants. But states can also make use of time as an instrument to design more welcoming or more restrictive policies. States can apply faster application procedures for desired migrants. Furthermore, time can be used in a more favourable way to attract desired migrants in regard to duration of residence, access to a form of permanent residence and protection against loss of residence. This contribution makes an analysis of how time is used as an instrument in shaping migration policy by the European Union (EU) legislator in the context of making migration more or less attractive. This analysis shows that two groups are treated more favourably in regard to the use of time in several aspects: EU citizens and economic- and knowledge-related third-country nationals. However, when it comes to the acquisition of permanent residence after a certain period of time, the welcoming policy towards economic- and knowledge-related migrants is no longer obvious.


Gerrie Lodder
Gerrie Lodder is lecturer and researcher at the Europa Institute of Leiden University.

    The entry into force of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) pushed state obligations to counter prejudice and stereotypes concerning people with disabilities to the forefront of international human rights law. The CRPD is underpinned by a model of inclusive equality, which views disability as a social construct that results from the interaction between persons with impairments and barriers, including attitudinal barriers, that hinder their participation in society. The recognition dimension of inclusive equality, together with the CRPD’s provisions on awareness raising, mandates that states parties target prejudice and stereotypes about the capabilities and contributions of persons with disabilities to society. Certain human rights treaty bodies, including the Committee on the Rights of Persons with Disabilities and, to a much lesser extent, the Committee on the Elimination of Discrimination against Women, require states to eradicate harmful stereotypes and prejudice about people with disabilities in various forms of interpersonal relationships. This trend is also reflected, to a certain extent, in the jurisprudence of the European Court of Human Rights. This article assesses the extent to which the aforementioned human rights bodies have elaborated positive obligations requiring states to endeavour to change ‘hearts and minds’ about the inherent capabilities and contributions of people with disabilities. It analyses whether these bodies have struck the right balance in elaborating positive obligations to eliminate prejudice and stereotypes in interpersonal relationships. Furthermore, it highlights the convergences or divergences that are evident in the bodies’ approaches to those obligations.


Andrea Broderick
Andrea Broderick is Assistant Professor at the Universiteit Maastricht, the Netherlands.
Article

Access_open New Sales and Contract Law in Argentina and France

Models for Reform Inspired by the CISG and the PICC?

Journal European Journal of Law Reform, Issue 3 2020
Keywords contracts, sales, law reform, CISG, UNIDROIT Principles, Argentina, France, comparative law
Authors Edgardo Muñoz and Inés Morfín Kroepfly
AbstractAuthor's information

    The Argentine and the French civil codes have recently undergone substantial modifications to their contract law provisions. These novel statutes could serve as models for future B2B contract law reforms in Latin American jurisdictions and beyond, as former Argentine and French laws have done in the past. The authors offer a contribution that paves the way in that direction with a systematic comparative analysis. As a starting point, this article unveils the influence that the modern unified laws on contracts (UNIDROIT Principles on International Commercial Contracts (PICC) and United Nations Convention on Contracts for the International Sale of Goods of 1980 (CISG)) have in Argentina’s and France’s new contract law. It also highlights the most obvious similarities and differences in both sets of rules. This contribution goes beyond simple tertium comparisons; the authors analyse which of the two laws offers better, or more effective, rules to achieve the desired contract law functions in various matters. Readers are provided with the best rule or solution to address the problem in question and, as the authors hope, they should conclude that both models provide for a range of complementary solutions for modern contract law reforms.


Edgardo Muñoz
Professor of Law, Universidad Panamericana. School of Law. Calzada Álvaro del Portillo 49, Zapopan, Jalisco, 45010, Mexico. Ph.D. (Basel), LL.M. (UC Berkeley), LL.M. (Liverpool), LL.B. (UIA Mexico), DEUF (Lyon), emunoz@up.edu.mx.

Inés Morfín Kroepfly
Ines Morfin Kroepfly, J.D., Universidad Panamericana, Guadalajara.
Article

The Windrush Scandal

A Review of Citizenship, Belonging and Justice in the United Kingdom

Journal European Journal of Law Reform, Issue 3 2020
Keywords Windrush generation, statelessness, right to nationality, genocide, apologetic UK Human Rights Act Preamble
Authors Namitasha Goring, Beverley Beckford and Simone Bowman
AbstractAuthor's information

    This article points out that the UK Human Rights Act, 1998 does not have a clear provision guaranteeing a person’s right to a nationality. Instead, this right is buried in the European Court of Human Rights decisions of Smirnova v Russia, 2003 and Alpeyeva and Dzhalagoniya v. Russia, 2018. In these cases, the Court stretched the scope of Article 8 of the European Convention on Human Rights, 1953 on non-interference with private life by public authorities to extend to nationality. The humanitarian crisis arising from the Windrush Scandal was caused by the UK Government’s decision to destroy the Windrush Generation’s landing cards in the full knowledge that for many these slips of paper were the only evidence of their legitimate arrival in Britain between 1948 and 1971.
    The kindling for this debacle was the ‘hostile environment policy’, later the ‘compliant environment policy’ that operated to formally strip British citizens of their right to a nationality in flagrant violation of international and domestic law. This article argues that the Human Rights Act, 1998 must be amended to include a very clear provision that guarantees in the UK a person’s right to a nationality as a portal to a person’s inalienable right to life. This balances the wide discretion of the Secretary of State under Section 4 of the Nationality, Immigration and Asylum Act, 2002 to deprive a person of their right to a nationality if they are deemed to have done something seriously prejudicial to the interests of the UK.
    This article also strongly recommends that the Preamble to the UK Human Rights Act, 1998 as a de facto bill of rights, be amended to put into statutory language Independent Advisor Wendy Williams’ ‘unqualified apology’ recommendation in the Windrush Lessons Learned Report for the deaths, serious bodily and mental harm inflicted on the Windrush Generation. This type of statutory contrition is in line with those of countries that have carried out similar grievous institutional abuses and their pledge to prevent similar atrocities in the future. This article’s contribution to the scholarship on the Human Rights Act, 1998 is that the Windrush Generation Scandal, like African slavery and British colonization, has long-term intergenerational effects. As such, it is fundamentally important that there is a sharp, comprehensive and enforceable legal mechanism for safeguarding the rights and interests of citizens as well as settled migrants of ethnically non-British ancestry who are clearly vulnerable to bureaucratic impulses.


Namitasha Goring
Namitasha Goring, Law and Criminology Lecturer Haringey Sixth Form College, LLM, PhD.

Beverley Beckford
Beverly Beckford, Barrister (Unregistered) (LLM).

Simone Bowman
Simone Bowman, Barrister (LLM Candidate DeMontford University).
Article

Regional Differentiation in Europe, between EU Proposals and National Reforms

Journal European Journal of Law Reform, Issue 3 2020
Keywords regional differentiation, regional disparities, autonomy, regionalism, subsidiarity, European Union, multilevel governance
Authors Gabriella Saputelli
AbstractAuthor's information

    Regions and local governments play a very important role in the application of European law and in the implementation of European policies. The economic crisis of 2008 has accentuated territorial and social differentiation and highlighted the negative effects of globalization. This circumstance has created resentment among peripheral and marginal communities in the electoral results, but also a strong request for involvement, participation and sometimes independence from territories. These developments raise new questions about the relationship between the EU and the Regions and, more widely, about the role of subnational entities in the EU integration process, as they are the institutions nearest to citizens.
    The aim of this article is to contribute to that debate by exploring the following research question: ‘is subnational differentiation positive or negative for European integration?’ Towards a possible answer, two perspectives are examined from a constitutional law approach. From the top down, it examines the attitude of the EU towards regional differentiation, from the origins of the EU integration process and its development until recent initiatives and proposals. From the bottom up, it analyses the role of subnational entities by presenting the Italian experience, through the reforms that have been approved over the years until the recent proposal for asymmetric regionalism. The aim is to understand whether regional differentiation still represents a positive element for the European integration process, considering the role that subnational entities play in many policies and the challenges described earlier.


Gabriella Saputelli
Researcher of Public Law at the Institute for the Study of Regionalism, Federalism and Self Government (ISSiRFA) of the National Research Council (CNR).

Lode Walgrave
Lode Walgrave is Emeritus Professor of Criminology, Leuven Institute of Criminology, KU Leuven, Belgium. Contact author: lode.walgrave@kuleuven.be.

Petronella Maria Boonen
Petronella M. Boonen is the Coordinator of restorative justice projects for the Center for Human Rights and Education (www.cdhep.org.br), São Paulo, Brazil. Contact author: pmboonen@gmail.com.

Jee Aei (Jamie) Lee
Jee Aei Lee is Crime Prevention and Criminal Justice Officer, Justice Section, United Nations Office on Drugs and Crime, Vienna, Austria.

Yvon Dandurand
Yvon Dandurand is Professor Emeritus in Criminology, University of the Fraser Valley, and Fellow and Senior Associate at the International Centre for Criminal Law Reform, Vancouver, Canada. Contact authors: jeeaei.lee@un.org; Yvon.Dandurand@ufv.ca.
Conversations on restorative justice

A talk with Mary Koss

Journal The International Journal of Restorative Justice, Issue 3 2020
Authors Albert Dzur
Author's information

Albert Dzur
Albert Dzur is Distinguished Research Professor, Departments of Political Science and Philosophy, Bowling Green State University, USA. Contact author: awdzur@bgsu.edu.
Article

Access_open South African Mandatory Offers Regime: Assessing Minorities’ Leverage to Seek Recourse and Equal Treatment in Takeover Bids

Journal Erasmus Law Review, Issue 2 2020
Keywords company takeovers, mandatory offers, minority shareholders, equal treatment, acquisition procedure
Authors Paul Nkoane
AbstractAuthor's information

    A firm intention announcement must be made when the offeror is able and willing to acquire securities, and when a mandatory offer must be made. When the firm intention announcement is implemented, some sort of a contract is created. This rule has helped to determine the particular time the offeror should be liable to minorities. The question of when the offeror should bear the obligation to implement mandatory offers in aborted takeovers is thus no more problematic. Previously, the courts wrestled with this issue, but delivered what appears to be unsatisfactory decisions. This article will discuss the effect of a firm intention announcement and the responsibility that attends the making of that announcement. It intends to illustrate the extent of liability the offeror must bear in the event of a lapsed takeover, before and after the making of the firm intention announcement. The article examines the manner in which takeover rules can be enforced, and whether the current measures afford minorities proper protection. This brings to light the issue of equal treatment in takeovers and the fallacy thereof. A minor appraisal of the takeover rules in two jurisdictions in Europe (the United Kingdom and the Netherlands) is conducted to assess how equal treatment for minorities is promoted. Due to the difficulty minorities may experience in enforcing equal treatment in company takeovers, the article advocates for the alteration of the current South African takeover procedure for the promotion of minorities’ interests and for establishing rules that provide the offeror adequate information.


Paul Nkoane
Paul Nkoane is lecturer at the College of Law of the University of South Africa in Pretoria.
Rulings

ECJ 26 March 2020, joined cases C-542/18 RX-II and C-543/18 RX-II (Réexamen Simpson – v – Council), Miscellaneous

Erik Simpson – v – Council of the European Union (C-542/18 RX-II); HG – v – European Commission (C-543/18 RX-II), EU cases

Journal European Employment Law Cases, Issue 2 2020
Keywords Miscellaneous
Abstract

    Internal EU staff cases. Earlier judgments implying that panel of judges had been irregular affect the unity and consistency of EU law.

    The dismissal of an employee for gross misconduct was unfair because the investigating officer failed to share significant new information with the manager conducting the disciplinary hearing who decided to dismiss, the Employment Appeal Tribunal has ruled.


Ludivine Gegaden
Ludivine Gegaden is an Associate at Lewis Silkin LLP.

    The notice of collective redundancies required to be given to an employment agency pursuant to Section 17(1) of the German Protection Against Unfair Dismissal Act (Kündigungsschutzgesetz, ‘KSchG’) can only be effectively submitted if the employer has already decided to terminate the employment contract at the time of its receipt by the employment agency. Notices of termination in collective redundancy proceedings are therefore effective – subject to the fulfilment of any other notice requirements – if the proper notice is received by the competent employment agency before the employee has received the letter of termination.


Marcus Bertz
Marcus Bertz is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.
Rulings

ECJ 2 April 2020, joined cases C-370/17 and C-37/18 (CRPNPAC), Social Insurance

Caisse de retraite du personnel navigant professionnel de l’aéronautique civile (CRPNPAC) – v – Vueling Airlines SA (C-370/17); Vueling Airlines SA – v – Jean-Luc Poignant (C-37/18), French cases

Journal European Employment Law Cases, Issue 2 2020
Keywords Social Insurance
Abstract

    E101 certificates which were fraudulently obtained can only be disregarded under specified conditions.

Article

A Civil Society Perspective on the ILC Draft Convention on Crimes Against Humanity

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords crimes against humanity, impunity, aut dedere aut judicare, amnesties, reservations
Authors Hugo Relva
AbstractAuthor's information

    In a relatively short period of time, the International Law Commission has accomplished the impressive task of drafting and adopting the text of the Draft Articles on Prevention and Punishment of Crimes against Humanity. The Draft Articles circulated to states are promising. However, a number of substantive amendments appear to be necessary if the Draft Convention is to become a powerful tool “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”, as stated in the Preamble. Moreover, in order to avoid the rapid ossification of the new potential treaty, it is advisable for the articles to reflect the most significant developments in international law, and also allow for future progressive developments in the law, instead of reflecting a lowest common denominator acceptable to all states. This article suggests some revisions to existing provisions, new provisions which may make the text much stronger and finally identifies some important omissions which should be fixed by states at the time of adopting the Draft Convention.


Hugo Relva
Legal adviser, Amnesty International.
Article

Crimes Against Humanity in the “Western European & Other” Group of States

A Continuing Tradition

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords crimes against humanity, Western Europe and Other Group of States, WEOG, Draft Articles on the Prevention and Punishment of Crimes Against Humanity
Authors Beth Van Schaack
AbstractAuthor's information

    The Western Europe and Other Group of states have a long history with crimes against humanity. They were pivotal in the juridical creation of this concept, in launching prosecutions in both international and national courts, and in formulating the modern definition of the crime. However, some members have expressed concerns around the International Law Commissions Draft Articles on the Prevention and Punishment of Crimes Against Humanity. This article provides a summary of the history of crimes against humanity in the Western Europe and Other Group of states, as well as the current status of crimes against humanity in their legal systems. It argues that although these states have successfully incorporated crimes against humanity into their legal frameworks, it would be beneficial for them to embrace the proposed Crimes Against Humanity Convention.


Beth Van Schaack
Leah Kaplan Visiting Professor of Human Rights, Stanford Law School.
Article

Why a Crimes Against Humanity Convention from a Perspective of Post-Soviet States?

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords crimes against humanity, criminal law, ICC Statute, implementation, post-Soviet States
Authors Sergey Sayapin
AbstractAuthor's information

    Most post-Soviet States have introduced penal responsibility for crimes against humanity, either explicitly or under alternative headings. As a rule, their respective criminal laws are modelled after relevant provisions of the Draft Code of Crimes against the Peace and Security of Mankind or the Rome Statute of the International Criminal Court. The International Law Commission’s adoption of the Draft Articles on Prevention and Punishment of Crimes Against Humanity represents an appropriate occasion for post-Soviet States that have not yet penalized crimes against humanity to bring their criminal laws into fuller conformity with customary international criminal law.


Sergey Sayapin
LLB, LLM, Dr. iur., PhD, Associate Professor of International and Criminal Law and Director of the LLB. in International Law Programme at the School of Law, KIMEP University (Almaty, Kazakhstan).
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