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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.

    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.

Chritopher Daniel Johnson
LL.M. (Adv.) Leiden University, M.Sc. International Space University.

Bernhard Schmidt-Tedd
Head of Legal Support, German Space Agency (DLR).

Erik Pellander
Research Assistant, BHO Legal, Cologne, Germany.
Article

Treaties X Human Rights Treaties

A Critical Analysis of the Dual Stance on Treaties in the Brazilian Legal System

Journal European Journal of Law Reform, Issue 2 2013
Keywords human rights, international treaties, hierarchy of the treaties
Authors Gustavo Ferreira Santos
AbstractAuthor's information

    The Constitution of the Federative Republic of Brazil provides two procedures for incorporating treaties into domestic law. Human rights treaties must be approved by a special quorum: it is necessary that of three-fifths of the members of each legislative house vote in favour, with two rounds in each chamber. This proceeding is similar to a constitutional amendment. Treaties on other subjects need only the approval of the majority. This system has been in place since 2004. The Brazilian Supreme Court decided that human rights treaties incorporated after 2004 have the same hierarchical level of constitutional provisions but human rights treaties enacted before that have the same hierarchical position of ordinary statutory laws. This system needs to be reformed in order to allow an easier integration with international law. All human rights treaties should have the same position as constitutional provisions.


Gustavo Ferreira Santos
Professor of Constitutional Law at the Federal University of Pernambuco and the Catholic University of Pernambuco. Holder of a scholarship awarded by CNPq (Brazilian National Council for Scientific and Technological Development for Research Productivity).
Editorial

Special Issue on Brazilian Law Reform

Journal European Journal of Law Reform, Issue 2 2013
Authors Jones Figueiredo Alves, Paulo Rosenblatt and Ailton Alfredo de Souza
Author's information

Jones Figueiredo Alves
Guest editors; Dean Judge of the Court of Appeals of the State of Pernambuco, Brazil, and its former President and Vice-President; Director of the Center for Judiciary Studies of that Court; integrated a humanitarian mission of the United Nations to the administration of Justice in Mozambique, Africa; Advisor for the Special Committee that drafted the current Brazilian Civil Code; Member and former Director of the Brazilian National Institute of Family Law.

Paulo Rosenblatt
Lawyer and Tax Consultant, Manzi Advogados, Brazil; Public Tax Attorney, Procuradoria Geral do Estado de Pernambuco; MA in Tax Law, Federal University of Pernambuco – UFPE.

Ailton Alfredo de Souza
Judge of the Court of the State of Pernambuco, Brazil; President of the Special Civil Courts of the State of Pernambuco; Judge Coordinator of the Special Civil and Criminal Court at the Football Stadiums of Pernambuco; Member of the Study Group of the National Council of Justice to create special courts at airports and stadiums during the 2013 Football Confederations Cup and the 2014 World Cup.

    In this article a non-binding global standard for solution of cross-border insolvency proceedings is introduced. These Global Principles for Cooperation in International Insolvency Cases can be used both in civil-law as well as common-law jurisdictions, and aim to cover all jurisdictions in the world. They are addressed to judges, insolvency practitioners and scholars, and aim to contribute to an improved global architecture of international insolvency.


Bob Wessels
Prof. Dr. Bob Wessels is an independent legal counsel in Dordrecht, The Netherlands, and professor International Insolvency Law, University of Leiden, School of Law. He can be reached at: info@bobwessels.nl.

Guillermo Javier Duberti
CONICET/UBA and Universidad de Belgrano, Buenos Aires, Argentina.
Article

The Impact of Europeanization of Contract Law on English Contract Law

Journal European Journal of Law Reform, Issue 2-3 2012
Keywords Rome I and II Regulations, Europeanization, contract law, Common European Sales Law, faulty goods
Authors Omar Abdelaziz
Abstract

    The ongoing process of Europeanization for promoting cross-border transactions and conferring better protection for consumers and small businesses has had its impact all over Europe. It represents a new step towards a harmonized set of legal rules to govern cross-border transactions in the field of contract law. So what is its exact scope? Who will benefit from it? What are its risks? What is its methodology? Does it represent a codification of common law rules? What will be its impact especially on common law countries such as the United Kingdom? The effectiveness of Europeanization depends almost entirely on the correct implementation into national law of the various directives; every member state is obliged to fully implement a harmonized measure into its domestic laws. This is accomplished by ensuring that (1) the relevant legal framework meets the requirements of the harmonized measure and (2) the application of the domestic rules giving effect to a harmonizing measure does not undermine the effectiveness of the European measure. English contract law is largely an uncodified law. Accordingly, the approach taken and the methods used by this jurisdiction to implement European directives into its national laws with the aim of harmonization are different. How did the English courts interpret legislations that implement EU legislations? Will Europeanization affect the deep-rooted principles and doctrines of English contract law (issues of commercial agency), good faith in pre-contractual obligations, unfair contract terms and specific performance? Finally, what could be the clash between European contract law, Rome I Regulations and the United Nations Convention on Contracts for the International Sale of Goods? Could this optional instrument be an exclusive law to either national or international mandatory rules for consumers in member states? What will be the qualification for a genuine consent of consumers in cross-border contracts? Will it lead to the development of the internal market as envisaged by the Commission?


Omar Abdelaziz
Article

Challenges Faced by Legislative Drafters in Samoa and Other USP Member Countries

Journal European Journal of Law Reform, Issue 2-3 2012
Keywords legislative drafting challenges in Pacific Islands
Authors Mary Victoria Petelō Fa’asau
AbstractAuthor's information

    Legislative drafting is a skill slowly developing in the Pacific today. This abstract identifies and records an update on the challenges to legislative drafting in Pacific island countries. Due to lack of information on legislative drafting in the Pacific, research was undertaken with the assistance of Parliamentary Counsel and other Pacific drafters. I also attended the second biennial meeting of the Pacific Drafters’ Technical Forum in October 2009 where more current challenges were discussed. My own experiences as a legislative drafter are also reflected in this abstract.
    The outcomes of the abstract will show that whereas legislative drafting as a specialised skill is recognised by Pacific governments and interests have grown in pursuing legislative drafting as a career, the challenges faced by Pacific legislative drafters are commonly more diverse and complex. In addition to analysing some of these challenges, this paper offers some recommendations to combating them.


Mary Victoria Petelō Fa’asau
Senior Legislative Drafter, Legislative Drafting Division, Office of the Attorney-General, Samoa; 2011/2012 Greg Urwin Award recipient, Pacific Islands Forum Secretariat; Pacific Legislative Drafters’ Technical Forum; Full member of the Commonwealth Association of Legislative Counsel.
Article

The Challenges of Rwandan Drafters in the Drafting Process for Good Quality Legislation

Journal European Journal of Law Reform, Issue 2-3 2012
Keywords quality of legislation, Rwanda, drafting process, drafting instructions, language and drafting, precision, clarity
Authors Alain Songa Gashabizi
Abstract

    Rwanda is a country in search a stable legal system, which includes the drafting of quality legislation. Following the events of the 1994 genocide the lack of experienced drafters and the civil law method of decentralized drafting the Rwandan legislation tends to be of bad quality mainly because of the bad quality drafts provided by the various, often unidentifiable sources of drafting. This article spells out the specific problems that the Rwandan drafter faces and offers solutions by means of a case study. The article concludes by making some specific recommendations.


Alain Songa Gashabizi
Article

The Response of National Law to International Conventions and Community Instruments – the Dutch Example

Journal European Journal of Law Reform, Issue 1 2012
Keywords Legislative approaches, Private International Law codification, Book 10 of the Dutch Civil Code, Implementation of international instruments, Incorporation by reference
Authors Dorothea van Iterson
AbstractAuthor's information

    This paper, presented at a colloquium at Barcelona University in 2010, outlines the history of the codification of Private International Law (PIL) in the Netherlands, which was completed in 2011 by the introduction of Book 10 of the Dutch Civil Code (conflict of laws). It describes the policy guidelines followed in giving effect to international instruments, i.e. conventions and European legislation. Basically all types of international PIL rules are further regulated at the national level. Moreover, the national PIL codification contains a number of provisions which were borrowed from or inspired by international instruments.


Dorothea van Iterson
Former Counsellor of Legislation, Ministry of Justice of the Netherlands.

Hiroyuki Kishindo
Japan Aerospace Exploration Agency (JAXA), Japan, kishindo.hiroyuki@jaxa.jp.

Olavo de O. Bittencourt Neto
University of São Paulo, Brazil, olavo.bittencourt@usp.br.

Outi Korhonen
Acting Professor of International Law (Helsinki), Dr. jur.sc. (Harvard), LL.M. (Harvard), Lic. Phil., Director of Trade, Environment and Intellectual Property Project, Eric Castren Institute (Helsinki).

Stephan Anagnost
The author, currently the UNHCR Phare Horizontal Asylum (PHA) Project Manager, is also responsible for developing legal aid and protection solutions. The opinions expressed in this article do not necessarily reflect those of the United Nations.

Frank Emmert

Frank Emmert

Anthony A. Tarr LL.M, Ph.D.
Dean and Professor of Law Indiana University School of Law - Indianapolis
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