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Article

Access_open Independent Supervisory Directors in Family-Controlled Publicly Listed Corporations

Is There a Need to Revisit the EU Independence Standards?

Journal The Dovenschmidt Quarterly, Issue 1 2015
Keywords corporate governance, board independence, independent non-executive or supervisory directors, listed family businesses, minority expropriation problem
Authors Fabian Imach
AbstractAuthor's information

    This contribution analyzes whether the current focus of the EU regulator on empowering independent directors is effective in corporations with a concentrated (family) ownership structure. The basic hypothesis of this contribution is that, contrary to the excessively optimistic expectations of the EU regulator, there are serious inefficiencies in the concept of independent directors when it comes to concentrated (family) ownership structures. The contribution relies on a series of empirical studies indicating a positive correlation between operating performance and family influence in European stock corporations.


Fabian Imach
Fabian Imach is management consultant at Societaet CHORVS AG, Gesellschaft für disruptive Wettbewerbsgestaltung in Düsseldorf. He has previously worked for BMW AG, JAFFÉ Rechtsanwälte Insolvenzverwalter (Lawyers and Insolvency Administrators) and Porsche Consulting GmbH. He holds a Master degree from Maastricht University, Faculty of Law.

K.R. Sridhara Murthi
K.R. Sridhara Murthi, Director, IIAEM, Jain University, Jain Global Campus, Jakkasandra post, Kanakapura Taluk

V. Gopalakrishnan
V. Gopalakrishnan, Policy Analyst, ISRO Head Quarters, Antariksh Bhavan, New BEL Road, Bangalore

    Pragmatism has become an established academic topic focused on an accepted canon of works and a number of seminal authors. There is something ironic about this fixation of the Pragmatist tradition. An anticipation of transience and embrace of adaptability runs through many of the classic works of Pragmatism. Nevertheless, there seems to be a tendency to fixate Pragmatism and freeze it in its classic iterations, especially with respect to its philosophy of scientific inquiry. The article seeks to retrieve the dynamics and adaptability the classical Pragmatists built into their notion of scientific inquiry. It seeks to illustrate the need for such flexibility with recent developments in the field of economics. When the financial crisis struck in 2007-2008, this involved more than the insolvency of a number of large banks. The crisis, at the very least, also involved the bankruptcy of a dominant economic model. It raised questions about the rationality of markets and the widespread faith in soft-touch regulation. It cast doubt on decades of neo-classical economic dogma that counseled small government, privatisation, and free markets. Neo-classical economics did not float free from other concerns. It informed notions about the role of the state, the limits of public policy, and the scope of democratic decision-making. Indeed, faith in rational, self-correcting markets affected debates in disparate disciplines like law, political science, philosophy, ethics, and history in many non-trivial ways. Hence, the financial crisis is also a crisis of scientific research.


Wouter de Been
Wouter de Been is assistant professor at the Erasmus School of Law, the Netherlands.

    The paper aims at justifying an interpretation of Dworkin’s theory of Law as Integrity that brings it closer to philosophical pragmatism despite his rejection of legal pragmatism. In order to achieve this aim, this work employs a classification of philosophical commitments that define pragmatism in a broad and in a narrow sense and shows that legal pragmatism follows the main thinkers of pragmatism in the narrow sense in committing to instrumentalism. The attribution of a pragmatist character to Dworkin’s theory of law rests on the idea that the adoption of a commitment to instrumentalism is not implicated by its adoption of other pragmatist commitments.


Thiago Lopes Decat
Thiago Lopes Decat, Ph.D., is Adjunct Professor at the Department of Propedeutic and Critical Disciplines of the Faculdade de Direito Milton Campos, Nova Lima, Brazil.

    When discussing O. W. Holmes’s answer to the question What constitutes the law? Morton White underlines the fact that Holmes’s inquiry didn’t focus on developing the concept of law. White states: '…Holmes said little in The Path of the Law about the notion of legal authority, perhaps because he was interested not in what he called a "useless quintessence of all legal systems" but in "an accurate anatomy of one"'. Such ambition (or lack of ambition) is characteristic of many pragmatic enterprises in the field of jurisprudence. However, sometimes the opposition between legal pragmatism and other legal theories is built upon a reference to the notion of the 'nature' or 'essence' of law. Many legal philosophers who aim to reveal the very 'nature of law' (or 'the concept of law' as H. L. A. Hart did) try to interpret Holmes and other pragmatists as offering a competitive view to their own. I will follow White’s early intuition that such a construal of the controversy is simply wrong. Afterwards I will sketch a portrait of legal pragmatism in the context of White’s own inquiry and his version of 'holistic pragmatism'; thirdly, I will present in brief the main reasons for exploring the concept of law in the contemporary analytic philosophy of law. Then I will show that traditionally 'pragmatic' and 'analytic' efforts in legal theory are situated on different levels of generality and conceptuality. However, these efforts can be, at least to some extent, reordered under the aegis of holistic pragmatism.


Adam Michał Dyrda
Adjunct Professor, Department of Legal Theory, Faculty of Law, Jagiellonian University, Cracow, Poland. Contact: adam.dyrda@uj.edu.pl; http://jagiellonian.academia.edu/AdamDyrda.
Article

The Role of Non-Governmental Organizations in Advancing International Criminal Justice

Journal African Journal of International Criminal Justice, Issue 1 2015
Keywords Non-governmental organizations, NGOs and international criminal justice, civil society and human rights, non-state actors in international law
Authors Charles Chernor Jalloh
AbstractAuthor's information

    This article examines the role of non-governmental organizations (NGOs) in advancing international criminal justice. I argue that NGOs have had considerable impact by contributing, among other things, to the global struggle against impunity through advocacy for the creation of more robust institutional mechanisms to prosecute those who perpetrate such crimes. This ranges from supporting the processes that led to the creation of several ad hoc international tribunals for Yugoslavia, Rwanda and Sierra Leone, all the way through to their support for the establishment of an independent permanent international penal court based in The Hague. The crux of my claim is that a historically sensitive approach to evaluating the role of NGOs in international governance shows that these entities are not only willing, but also capable of enhancing the protection of human rights and international criminal justice especially but not exclusively in less developed regions of the world.


Charles Chernor Jalloh
Associate Professor, Florida International University, College of Law, Miami, USA. Email: jallohc@gmail.com.

    To ensure its continued viability, the International Criminal Court must find “practical” ways to appeal to its African (and global) audience, options that do not require substantial additional funding or revisions to the Rome Statute while remaining true to fundamental principles of international justice. Subject to such limitations, this article examines the “end product” of the ICC – the judgments authored by the Trial Chambers to date. Unfortunately, these opinions are simply incomprehensible to any but a few specially trained, highly interested stakeholders. They are extraordinarily complex and lengthy and fail to emphasize or address issues that are clearly important to the audiences in states where atrocities have occurred. The article reviews existing judgments and provides suggestions for future improvements, thereby increasing accessibility to African leadership, civil society organizations, and the public at large. Such efforts will contribute to increased legitimacy and, consequently, the long-term impact and relevancy of the Court.


Matthew C. Kane
Matthew C. Kane is a Visiting Assistant Professor at the University of Oklahoma College of Law, teaching courses on criminal law, torts, and international and comparative criminal law. He also serves a director and shareholder of Ryan Whaley Coldiron Jantzen Peters & Webber PLLC, concentrating on criminal and complex civil law matters. Special thanks to The Hague University of Applied Sciences, which organized the conference “Africans and Hague Justice,” where this paper was originally presented.
Article

Policy Considerations for New Human Space Exploration Strategies

The Space Generation Perspective

Journal International Institute of Space Law, Issue 7 2015
Authors Chantelle Dubois, Lazlo Bacsardi, Ali Nasseri e.a.
Author's information

Chantelle Dubois
Space Generation Advisory Council, Canada

Lazlo Bacsardi
Hungary

Ali Nasseri
Canada

Michael Deiml
Germany

Alana Bartolini
Canada

Kate Howells
Canada

Jessica Todd
Australia

Kumar Abhijeet
Australia
Article

International Code of Conduct for Outer Space Activities

Analysis from an Institutional Perspective

Journal International Institute of Space Law, Issue 7 2015
Authors Anastasia Voronina
Author's information

Anastasia Voronina
University of Nebraska-Lincoln, U.S.A.
Article

The Incorporation of Intentional Parentage by Female Same-Sex Couples into National Parentage Laws

A Comparison between Danish and Dutch Law

Journal European Journal of Law Reform, Issue 2 2015
Keywords same-sex parentage, family law, comparative law
Authors professor Christina G. Jeppesen de Boer and professor Annette Kronborg
AbstractAuthor's information

    The incorporation of intentional parentage by female same-sex couples in Danish and Dutch law in 2013 has taken place on the premises of the existing parentage law. In Dutch law, the second mother may automatically become the legal parent (formal relationship – anonymous donor) or she may become the legal parent in all other situations by recognition with consent of the mother. In Danish law, the second mother’s parentage may be established in a simple registration procedure, if she has consented to the act of assisted reproduction prior to treatment. When use has been made of a known donor there is no direct presumption favouring the known donor or the second mother in either country. Danish law provides a contractual understanding to be made prior to treatment while Dutch law depends upon the initiative of the parties and to whom the mother gives consent to recognition – with subsequent discretionary power of the court to modify the result. The main difference we associate with a systemized specific legislative approach (Denmark) and discretionary powers of the court to correct the outcome (the Netherlands).


professor Christina G. Jeppesen de Boer
C.G. Jeppesen de Boer is a legal researcher and assistant professor at the University of Utrecht, Molengraaff Institute for Private Law associated with UCERF (Utrecht Centre for European Research into Family Law).

professor Annette Kronborg
A. Kronborg is a legal researcher and associate professor at the University of Copenhagen associated with the Centre for Studies in Legal Culture.
Article

Identifying the Impetus behind the Europeanization of the Private International Law Rules on Family Matters and Succession

Journal European Journal of Law Reform, Issue 2 2015
Keywords area of freedom security and justice, EU citizenship, free movement of persons, international family matters, international succession
Authors Jacqueline Gray PhD
AbstractAuthor's information

    The EU is currently in the midst of unifying the private international law rules on family matters and succession. This article seeks to explain this expansion into essentially non-economic territory. In order to do so, it presents the ideological, problem-based, and legal considerations that appear to lie at the heart of legislative action in these fields. However, as will become apparent, it is the role of the Member States that is crucial in guiding this process.


Jacqueline Gray PhD
PhD Candidate, Utrecht Centre for European Research into Family Law, Utrecht University.
Article

Care in Family Relations

The Case of Surrogacy Leave

Journal European Journal of Law Reform, Issue 2 2015
Keywords EU law, case law, surrogacy, leaves, reconciliation of work
Authors Dr. Susanne Burri
AbstractAuthor's information

    The advance of reproductive technologies, like surrogacy arrangements, confronts courts with new demands and dilemmas. This contribution analyses the potential of EU law towards a better and more balanced reconciliation of work, private and family life when no national law applies. In two recent cases of the Court of Justice of the EU on leave for surrogacy mothers, the Advocates General Kokott and Wahl published diverging opinions on similar prejudicial questions of national courts. These opinions illustrate some difficulties in applying the EU concept of equality and interpreting the scope of relevant EU law on leaves. The Court followed a cautious approach, which is not surprising given the lack of consensus on surrogacy arrangements in the member states and their legal implications. Developments in society and technologies in relation to motherhood, fatherhood and parenthood give rise to new legal questions. However, the existing EU legal instruments in this field were not designed to address questions such as for example surrogacy leave for commissioning mothers and fathers. A modernisation of the EU instruments in the light of societal, technological and legal developments in the member states would provide an opportunity to remedy some gaps in the existing EU legal framework on reconciliation issues. In a society where participation in the labour market of both women and men is increasing and getting more balanced, the need to address care of children, older people and disabled people becomes more urgent.


Dr. Susanne Burri
Dr. Susanne Burri is Associate Professor at the School of Law of Utrecht University and specialist co-ordinator for gender equality law of the European network of legal experts in gender equality and non-discrimination.
Article

The Minor in Divorce-Related Judicial Proceedings in the Netherlands and Germany

Rights to a Special Representative and to Be Heard in Person

Journal European Journal of Law Reform, Issue 2 2015
Keywords procedural (in)capacity, conflict of interests, the right to a special representative, the right to be heard in person
Authors Maximilian Strutz PhD and Evelien Verhagen PhD
AbstractAuthor's information

    This contribution examines the extent to which a minor is involved in divorce-related judicial proceedings in the Netherlands and Germany. The discussion will concentrate exclusively on the rights of the minor to a special representative and to be heard in person. The purpose of this contribution is to identify the uncertainties and bottlenecks that arise in both legal systems.


Maximilian Strutz PhD
Maximilian Strutz is currently Rechtsreferendar at the District Court of Cologne (Germany), as well as a PhD student at the University of Cologne.

Evelien Verhagen PhD
Evelien Verhagen is a PhD student at Utrecht University (The Netherlands). She participates in the Utrecht Centre for European Research info Family Law (UCERF).

Sumara M. Thompson-King
General Counsel, National Aeronautics and Space Administration (NASA), United States

Robin J. Frank
Acting Associate General Counsel for International Law, National Aeronautics and Space Administration (NASA), United States

Olga S. Stelmakh
Parliament of Ukraine / DRSH Group Int., Ukraine
Article

Exploring Barriers to Constructing Locally Based Peacebuilding Theory

The Case of Northern Ireland

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2015
Keywords peacebuilding, phronesis, civil society, practice–theory, Northern Ireland
Authors Emily Stanton PhD and Grainne Kelly
AbstractAuthor's information

    This article seeks to explore why, after significant financial investment and a history of nearly 50 years of civil society activity, there is a paucity of explicitly codified and consolidated indigenous theory that has emerged from peacebuilding practice in Northern Ireland. Methodologically, this apparent contradiction is explored, utilizing both empirical research (interviews with key peacebuilders) and the wide practitioner experience of the authors. It is argued that two complex dynamics have contributed to the subordination of local practice-based knowledge, namely, the professionalization of peace and the dominance of research over practice within academia. These two dynamics have played a mutually exacerbatory and significant role in creating barriers to constructing local peacebuilding theory. Phronesis, an Aristotelian term for practical knowledge, is explored to discover what insights it may contribute to both research, theory and practice in the field of peacebuilding, followed by examples of institutions demonstrating its value for practice–theory reflexivity. The article concludes with a call for peace research that validates and values practical knowledge. By doing so, the authors argue, new avenues for collaborative partnership between practitioners and academics can open up, which may play a constructive role in bridging practice–theory divides and, most importantly, contribute to building more effective and sustainable peacebuilding processes in Northern Ireland and in other conflict contexts.


Emily Stanton PhD
Emily Stanton is PhD candidate in the School of Politics, Faculty of Social Science, Ulster University, Northern Ireland. Email: Stanton-E@email.ulster.ac.uk.

Grainne Kelly
Grainne Kelly is Lecturer of Peace and Conflict Studies at the International Conflict Research Institute (INCORE), Ulster University, Northern Ireland. Email: g.kelly@ulster.ac.uk.
Article

Reframing War to Make Peace in Northern Ireland

IRA Internal Consensus-Building for Peace and Disarmament

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2015
Keywords Northern Ireland, intra-group negotiations, disarmament, political transition, IRA
Authors Dr. Benedetta Berti and Ariel Heifetz Knobel
AbstractAuthor's information

    In exploring alternatives to armed struggle, how do non-state armed groups embark on such complex internal discussions, and how do they reframe their worldview and strategy to persuade their militants to support such transition?
    The article tackles this question by examining the internal processes of consensus-building that brought the most prominent militant organization in Northern Ireland – the Provisional Irish Republican Army (IRA) – from violent struggle for independence to non-violent political participation in the political system it had previously fought to expel.
    The study relies on fieldwork and applied research through interviews, conducted in Northern Ireland and Ireland with key stakeholders, ranging from ex-prisoner leaders and former militants to politicians, official negotiators and civil society practitioners who work with various conflict parties on the ground. Historical literature and primary sources are also used, including Sinn Féin and IRA official documents. All primary sources are integrated with the theoretical literature on intra-group consensus-building and discursive reframing.
    The analysis underscores the importance of discursive practices to ensure frame-shift in both the understanding of the conflict (consensus mobilization) and the means chosen to wage it (action mobilization). The case of the IRA further reveals the importance of preserving continuity with an organization’s core ideological pillars as a key mechanism to minimize chances of internal strife, along with enlisting credible supporters from the ‘militant constituency’ – such as former prisoners and/or militants with deep and personal involvement in the group’s armed struggle.


Dr. Benedetta Berti
Dr. Benedetta Berti is a Kreitman postdoctoral fellow at Ben Gurion University, a research fellow at the Institute for National Security Studies (INSS), a lecturer at Tel Aviv University and the author of Armed Political Organizations. From Conflict to Integration. <https://jhupbooks.press.jhu.edu/content/armed-political-organizations>.

Ariel Heifetz Knobel
Ariel Heifetz Knobel is a conflict transformation practitioner, facilitating Track 2 and Track 1.5 initiatives in Israel and the Palestinian Territories, and working with Northern Irish peacemakers to bring best practices to the region. She has served as Public Diplomacy Director for five states at the Israeli Consulate to New England, and as a mediator in Boston’s district courts.
Article

Non-Violent Struggle

The 1992 Kenyan Case Study of the Protective Power and the Curse of Female Nakedness

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2015
Keywords non-violent struggle, dynamics of non-violent struggle, strategic planning in non-violent struggle, protective power of the vulva, curse of female nakedness
Authors Dr. Peter Karari
AbstractAuthor's information

    Non-violent struggle is a technique by which the population can restrict and sever the sources of power of their oppressors while mobilizing their own potentials into effective power. Female nakedness is one type of non-violent action that can be mobilized to facilitate women’s emancipation from gendered-cum-patriarchal oppression, violence and marginalization. A literature review indicates that female nakedness has been used for many centuries around the world to stop wars, ward off enemies, agitate for rights, prevent pests and increase harvests. Studies show that the effectiveness of non-violent struggle requires strategic planning and understanding of the dynamics involved. This article analyses the 1992 women’s nude protest in Kenya aimed at pushing for the release of political prisoners. This study investigates three questions: (1) In what ways was the 1992 women’s nude protest in Kenya a success? (2) What were the struggle’s flaws? (3) What strategic plans and/or dynamics of non-violent struggle could have been employed to make this protest more effective? The findings of this research indicate that: (1) The nude protest was partially a success because it secured the release of all political prisoners and nurtured democratization; (2) the struggle failed to embrace some strategic planning and/or the dynamics of non-violent struggle in addition to hunger strike and female nakedness; and (3) the protest could have been more successful if it embraced particular strategic plans and/or dynamics of non-violent struggle such as negotiation, power relations, prioritization of tactics and methods of non-violent struggle, access to critical material resources and clear monitoring and evaluation strategies.


Dr. Peter Karari
Dr. Peter Karari will be joining Karatina University, Kenya in September 2015 as a faculty member in the school of education and social sciences where he plans to start a department in Peace and Conflict Studies. He is a PhD graduate in peace and conflict studies from the Arthur Mauro Centre for Peace and Justice, University of Manitoba. He also has a Bachelor in Social-Work from the University of Nairobi in Kenya and a Masters in Peace and Conflicts Research from Otto-von Guericke University in Magdeburg Germany. His areas of focus includes; ethnopolitical violence, transitional justice, peacebuilding, conflict-management, conflict-resolution, conflict-transformation, and human rights. His doctoral research was on ethno-political violence, transitional justice, and peacebuilding in Kenya. He has diverse field and work experience with Non-governmental and community based organizations. He was the Country Program Manager of Drug Abuse Education Program Kenya, Project Coordinator Compassion International Kenya, and Chief Executive Officer Kibera Slum Education Program, an Oxfam GB assisted project in Kenya. Peter has served in various capacities as a student leader, community leader, and as a member of the University of Manitoba senate. He has a great passion for the marginalized and the vulnerable people in the society and has greatly been recognized for his community leadership and human rights activism. He is the winner of the 2010 Nahlah Ayed Prize for Student Leadership and Global Citizenship, University of Manitoba; 2010 Paul Fortier Award in Student Activism, University of Manitoba Faculty Association; 2011 University of Manitoba Alumni Award; 2012 University of Manitoba Dean of Graduate Studies Student Achievement Award; and 2014 University of Manitoba Emerging Leaders Award. Apart from mentoring his students to explore new perspectives and ideas that address their inquisitiveness as human beings, Dr. Karari envisions to actively participate in peacebuilding initiatives to make the world a better place for all to live in. He envisions Perpetual Peace in the World!
Article

Process Pluralism in Transitional-Restorative Justice

Lessons from Dispute Resolution for Cultural Variations in Goals beyond Rule of Law and Democracy Development (Argentina and Chile)

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2015
Keywords transitional justice, conflict resolution, process pluralism, cultural variation, individual and collective justice
Authors Carrie Menkel-Meadow
AbstractAuthor's information

    This article reviews some of the key issues in transitional justice process and institutional design, based on my research and experience working and living in several post-conflict societies, and suggests that cultural and political variations in transitional justice design, practices, and processes are necessary to accomplish plural goals. The idea of process pluralism, derived from the more general fields of conflict resolution and ‘alternative dispute resolution’ in legal contexts, is an essential part of transitional justice, where multiple processes may occur simultaneously or in sequence over time (e.g. truth and reconciliation processes, with or without amnesty, prosecutions, lustration and/or more local legal and communitarian processes), depending on both individual and collective preferences and resources. Transitional justice is itself ‘in transition’ as iterative learning has developed from assessment of different processes in different contexts (post-military dictatorships, civil wars, and international and sub-national conflicts). This article draws on examples from Argentina’s and Chile’s emergence from post-military dictatorships to describe and analyze a plurality of processes, including more formal governmental processes, but also those formed by civil society groups at sub-national levels. This article suggests that ‘democracy development’ and legalistic ‘rule of law’ goals and institutional design may not necessarily be the only desiderata in transitional justice, where more than the ‘legal’ and ‘governmental’ is at stake for more peaceful human flourishing. To use an important concept from dispute resolution, the “forum must fit the fuss”, and there are many different kinds of ‘fusses’ to be dealt with in transitional justice, at different levels of society – more than legal and governmental but also social, cultural and reparative.


Carrie Menkel-Meadow
Carrie Menkel-Meadow is Chancellor’s Professor of Law and Political Science, University of California, Irvine.
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