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    The Employment Appeal Tribunal has ruled both non-guaranteed and voluntary overtime should be included in the calculation of holiday pay.


Soren Kristophersen
Soren Kristophersen is a Legal Assistant at Lewis Silkin LLP.
Pending cases

Case C-171/18, Equal treatment, Pension

Safeway Ltd – v – Andrew Richard Newton, Safeway Pension Trustees Ltd, reference lodged by the Court of Appeal (United Kingdom) made on 5 March 2018

Journal European Employment Law Cases, Issue 4 2018
Article

What Is a Good Mediator?

Journal Corporate Mediation Journal, Issue 2 2018
Keywords certification, mediation, mediator, MMMM-rule
Authors Thierry Garby
AbstractAuthor's information

    When the time comes to select a mediator, the judge, the lawyers, the parties or the mediation centre will want to find a good one. This raises two questions: what is a good mediator and how to find one?
    The answer to the first question seems rather simple: a good mediator is one that the parties are happy with. This raises another set of questions: if the parties were happy with a mediator in one case, would they be happy with the same person in another case? Would other parties be happy with this mediator as well? If the answers are not a yes without reservation to both of those questions, then the question becomes: who would be a good mediator for this case between these parties?


Thierry Garby
Thierry Garby is a well-known and experienced mediator with most international mediation centres, particularly with the International Chamber of Commerce (ICC), the World Bank Group and the United Nations.

Martin Brink
Martin Brink, PhD, is attorney at law, arbitrator and deputy judge at the The Hague Court of Appeals and an internationally certified mediator (MfN, IMI, CEDR Global Panel).
Article

Access_open ‘Cruel Men Can Do Kind Things and Kind Men Can Do Cruel Things’

Reconsidering the Enemy of Humanity in Contemporary International Criminal Trial Discourse

Journal Netherlands Journal of Legal Philosophy, Issue 2 2018
Keywords humanity, international criminal justice, opening statements, trial discourse, perpetrators
Authors Sofia Stolk
AbstractAuthor's information

    This article discusses empirical examples from international trial transcripts to see if and why there is a need to use the ‘enemy of all humanity’ label in contemporary international criminal justice discourse. It shows an absence of explicit uses of the concept and an ambiguous set of implicit references; the hosti generis humani concept is simultaneously too precise and too broad for ICJ discourse. Based on these findings, the article challenges David Luban’s suggestion that the term can be undone from its dehumanizing potential and used adequately in the ICJ context.


Sofia Stolk
Sofia Stolk is researcher at T.M.C. Asser Instituut/University of Amsterdam and research fellow at the Centre for the Politics of Transnational Law, Amsterdam.
Article

Access_open On the Humanity of the Enemy of Humanity

A Response to My Critics

Journal Netherlands Journal of Legal Philosophy, Issue 2 2018
Keywords hostis generis humani, humanity, International criminal justice, piracy
Authors David Luban
AbstractAuthor's information

    Antony Duff, Marc de Wilde, Louis Sicking, and Sofia Stok offer several criticisms of my “The Enemy of All Humanity,” but central to all of them is concern that labeling people hostis generis humani dehumanizes them, and invites murder or extrajudicial execution. In response I distinguish political, legal, and theoretical uses of the ancient label. I agree with the critics that the political use is toxic and the legal use is dispensable. However, the theoretical concept is crucial in international criminal law, which rests on the assumptions that the moral heinousness of core crimes makes them the business of all humanity. Furthermore, far from dehumanizing their perpetrators, calling them to account before the law recognizes that they are no different from the rest of humanity. This response also offers rejoinders to more specific objections raised by the critics.


David Luban
David Luban is University Professor in Law and Philosophy at Georgetown University.
Article

Access_open Enemy of All Humanity

The Dehumanizing Effects of a Dangerous Concept

Journal Netherlands Journal of Legal Philosophy, Issue 2 2018
Keywords enemy of all humanity, hostis humani generis, piracy, international criminal law, Luban
Authors Marc de Wilde
AbstractAuthor's information

    In his contribution to this special issue, David Luban proposes to revive the age-old concept of ‘the enemy of all humanity.’ On his view, this concept supports the aims of international criminal justice by emphasizing that atrocity and persecution crimes are ‘radically evil’ and therefore ‘everyone’s business.’ Criticizing Luban’s proposal, this paper shows that in the past, the ‘enemy of all humanity’ concept has often served to establish parallel systems of justice, depriving these ‘enemies’ of their rights as suspects under criminal law and as lawful combatants under the laws of war. Thus, even if the ‘enemy of all humanity’ concept is used with the intention to bring today’s perpetrators of ‘radical evil’ to justice, it risks undermining, rather than protecting, the rule of law.


Marc de Wilde
Marc de Wilde is Professor of Jurisprudence at the University of Amsterdam.
Editorial

Access_open The Hostis Generis Humani: A Challenge to International Law

Journal Netherlands Journal of Legal Philosophy, Issue 2 2018
Keywords Luban, humanity, dehumanization, Radbruch, Arendt
Authors Luigi Corrias and Wouter Veraart
AbstractAuthor's information

    Introducing the special issue, we point out how the notion of an ‘enemy of all humanity’ challenges the very foundations of international (criminal) law. We also give an overview of the other contributions.


Luigi Corrias
Luigi Corrias is Assistant Professor of Legal Philosophy at the Vrije Universiteit Amsterdam.

Wouter Veraart
Wouter Veraart is Professor of Legal Philosophy at the Vrije Universiteit Amsterdam.
Article

Access_open The Enemy of All Humanity

Journal Netherlands Journal of Legal Philosophy, Issue 2 2018
Keywords hostis generis humani, piracy, crimes against humanity, universal jurisdiction, radical evil
Authors David Luban
AbstractAuthor's information

    Trationally, the term “enemy of all humanity” (hostis generis humani) referred to pirates. In contemporary international criminal law, it refers to perpetrators of crimes against humanity and other core. This essay traces the evolution of the concept, and then offers an analysis that ties it more closely to ancient tyrants than to pirates. Some object that the label is dehumanizing, and justifies arbitrary killing of the “enemy of humanity.” The essay admits the danger, but defends the concept if it is restricted to fair trials. Rather than dehumanizing its target, calling the hostis generis humani to account in a court of law is a way of recognizing that radical evil can be committed by humans no different from any of us.


David Luban
David Luban is University Professor in Law and Philosophy at Georgetown University.
Article

Access_open The Conduit between Technological Change and Regulation

Journal Erasmus Law Review, Issue 3 2018
Keywords technology, socio-technological change, money, windmill, data
Authors Marta Katarzyna Kołacz and Alberto Quintavalla
AbstractAuthor's information

    This article discusses how the law has approached disparate socio-technological innovations over the centuries. Precisely, the primary concern of this paper is to investigate the timing of regulatory intervention. To do so, the article makes a selection of particular innovations connected with money, windmills and data storage devices, and analyses them from a historical perspective. The individual insights from the selected innovations should yield a more systematic view on regulation and technological innovations. The result is that technological changes may be less momentous, from a regulatory standpoint, than social changes.


Marta Katarzyna Kołacz
Marta Katarzyna Kołacz, Ph.D. Candidate in the Department of Private Law, Erasmus School of Law, Erasmus University Rotterdam, The Netherlands.

Alberto Quintavalla
Alberto Quintavalla, LL.M., Ph.D. Candidate in the Rotterdam Institute of Law and Economics, Erasmus School of Law, Erasmus University Rotterdam, The Netherlands.
Article

Access_open Right to Access Information as a Collective-Based Approach to the GDPR’s Right to Explanation in European Law

Journal Erasmus Law Review, Issue 3 2018
Keywords automated decision-making, right to access information, right to explanation, prohibition on discrimination, public information
Authors Joanna Mazur
AbstractAuthor's information

    This article presents a perspective which focuses on the right to access information as a mean to ensure a non-discriminatory character of algorithms by providing an alternative to the right to explanation implemented in the General Data Protection Regulation (GDPR). I adopt the evidence-based assumption that automated decision-making technologies have an inherent discriminatory potential. The example of a regulatory means which to a certain extent addresses this problem is the approach based on privacy protection in regard to the right to explanation. The Articles 13-15 and 22 of the GDPR provide individual users with certain rights referring to the automated decision-making technologies. However, the right to explanation not only may have a very limited impact, but it also focuses on individuals thus overlooking potentially discriminated groups. Because of this, the article offers an alternative approach on the basis of the right to access information. It explores the possibility of using this right as a tool to receive information on the algorithms determining automated decision-making solutions. Tracking an evolution of the interpretation of Article 10 of the Convention for the Protection of Human Right and Fundamental Freedoms in the relevant case law aims to illustrate how the right to access information may become a collective-based approach towards the right to explanation. I consider both, the potential of this approach, such as its more collective character e.g. due to the unique role played by the media and NGOs in enforcing the right to access information, as well as its limitations.


Joanna Mazur
Joanna Mazur, M.A., PhD student, Faculty of Law and Administration, Uniwersytet Warszawski.

    In this paper I propose to analyse the binary notion of personal data and highlight its limits, in order to propose a different conception of personal data. From a risk regulation perspective, the binary notion of personal data is not particularly fit for purpose, considering that data collection and information flows are tremendously big and complex. As a result, the use of a binary system to determine the applicability of EU data protection law may be a simplistic approach. In an effort of bringing physics and law together, certain principles elaborated within the quantum theory are surprisingly applicable to data protection law, and can be used as guidance to shed light on many of today’s data complexities. Lastly, I will discuss the implications and the effects that certain processing operations may have on the possibility of qualifying certain data as personal. In other terms, how the chances to identify certain data as personal is dependent upon the processing operations that a data controller might put in place.


Alessandro El Khoury
Alessandro El Khoury, LLM, Legal and Policy Officer, DG Health & Food Safety, European Commission.
Article

Access_open Fostering Worker Cooperatives with Blockchain Technology: Lessons from the Colony Project

Journal Erasmus Law Review, Issue 3 2018
Keywords blockchain, collaborative economy, cooperative governance, decentralised governance, worker cooperatives
Authors Morshed Mannan
AbstractAuthor's information

    In recent years, there has been growing policy support for expanding worker ownership of businesses in the European Union. Debates on stimulating worker ownership are a regular feature of discussions on the collaborative economy and the future of work, given anxieties regarding the reconfiguration of the nature of work and the decline of standardised employment contracts. Yet, worker ownership, in the form of labour-managed firms such as worker cooperatives, remains marginal. This article explains the appeal of worker cooperatives and examines the reasons why they continue to be relatively scarce. Taking its cue from Henry Hansmann’s hypothesis that organisational innovations can make worker ownership of firms viable in previously untenable circumstances, this article explores how organisational innovations, such as those embodied in the capital and governance structure of Decentralised (Autonomous) Organisations (D(A)Os), can potentially facilitate the growth of LMFs. It does so by undertaking a case study of a blockchain project, Colony, which seeks to create decentralised, self-organising companies where decision-making power derives from high-quality work. For worker cooperatives, seeking to connect globally dispersed workers through an online workplace, Colony’s proposed capital and governance structure, based on technological and game theoretic insight may offer useful lessons. Drawing from this pre-figurative structure, self-imposed institutional rules may be deployed by worker cooperatives in their by-laws to avoid some of the main pitfalls associated with labour management and thereby, potentially, vitalise the formation of the cooperative form.


Morshed Mannan
Morshed Mannan, LLM (Adv.), PhD Candidate, Company Law Department, Institute of Private Law, Universiteit Leiden.
Article

Access_open Privatising Law Enforcement in Social Networks: A Comparative Model Analysis

Journal Erasmus Law Review, Issue 3 2018
Keywords user generated content, public and private responsibilities, intermediary liability, hate speech and fake news, protection of fundamental rights
Authors Katharina Kaesling
AbstractAuthor's information

    These days, it appears to be common ground that what is illegal and punishable offline must also be treated as such in online formats. However, the enforcement of laws in the field of hate speech and fake news in social networks faces a number of challenges. Public policy makers increasingly rely on the regu-lation of user generated online content through private entities, i.e. through social networks as intermediaries. With this privat-ization of law enforcement, state actors hand the delicate bal-ancing of (fundamental) rights concerned off to private entities. Different strategies complementing traditional law enforcement mechanisms in Europe will be juxtaposed and analysed with particular regard to their respective incentive structures and consequential dangers for the exercise of fundamental rights. Propositions for a recommendable model honouring both pri-vate and public responsibilities will be presented.


Katharina Kaesling
Katharina Kaesling, LL.M. Eur., is research coordinator at the Center for Advanced Study ‘Law as Culture’, University of Bonn.
Part I Courts and ODR

Testing the Promise of Access to Justice through Online Courts

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords online courts, empirical research, civil justice, access to justice
Authors Bridgette Toy-Cronin, Bridget Irvine, David M. Nichols e.a.
AbstractAuthor's information

    Modernization is increasingly knocking on the courthouse door. Many common law countries are investigating ways to introduce technology to improve civil courts, including the introduction of online courts. These state-led initiatives are primarily focused on lowering state costs in providing justice, as well as increasing access to dispute resolution. One possible solution some legal jurisdictions are exploring is ‘online courts’. Online courts hold the promise of making justice more accessible and affordable: a dispute can be filed at any time, from anywhere, by anyone. This model of delivering justice is envisioned as a system that either is lawyer-less or has a minimal role for lawyers. One of the assumptions underpinning an online court is, therefore, that laypeople can effectively explain a dispute to the court, without legal assistance. To date, there is no empirical research investigating that assumption. In this article, we will outline the proposed online court model, consider the need for robust empirical research, and describe a three-part investigation to explore how clearly and accurately people can explain a dispute.


Bridgette Toy-Cronin
Bridgette Toy-Cronin is the Director of the University of Otago Legal Issues Centre and a Senior Lecturer in the Faculty of Law, University of Otago.

Bridget Irvine
Bridget Irvine is a Postdoctoral Fellow at the University of Otago Legal Issues Centre.

David M. Nichols
David M. Nichols is an Associate Professor in Computer Science at the University of Waikato.

Sally Jo Cunningham
Sally Jo Cunningham is an Associate Professor in Computer Science at the University of Waikato.

Tatiana Tkacukova
Tatiana Tkacukova is a Senior Lecturer in the School of English, Birmingham City University. Authors appear in order of the contribution made to the paper.
Part II Private Justice

Using Technology and ADR Methods to Enhance Access to Justice

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords ODR, ADR, mediation, online court, e-court, consumer ADR, CADR, CDR, ombudsman
Authors Pablo Cortes
AbstractAuthor's information

    This article discusses how technology and extrajudicial processes can provide a solution to the access-to-justice problem for self-represented litigants. The article first observes the need for efficient dispute resolution processes based on a wider concept of access to justice and argues for greater integration amongst courts and extrajudicial bodies, especially in the consumer sphere where dispute resolution bodies are currently undergoing an institutionalization process as a result of recent EU legislation. Accordingly, it is argued that access to justice for consumers will only be achieved if they have access to either an accountable and effective extrajudicial scheme that offers adjudication or a truly user-friendly and accessible online court that incorporates alternative dispute resolution techniques as the United Kingdom has endeavoured to deliver. To that end, this article examines the policy options for the English Online Court with a particular focus on the challenges faced by litigants in person. Finally, this article submits that dispute system design changes need to be informed by empirical research and a holistic policy strategy on dispute resolution.


Pablo Cortes
Pablo Cortes is Professor of Civil Justice, Leicester Law School, University of Leicester.
Part I Courts and ODR

Recent Development of Internet Courts in China

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords Internet court, ODR, AI, blockchain, regulation, fourth party
Authors Xuhui Fang
AbstractAuthor's information

    Online dispute resolution (ODR) is growing out of alternative dispute resolution (ADR) and pushing the envelope for resolving online disputes in the Internet courts in China. Recently, the Chinese Internet courts admitted blockchain-based evidence and applied artificial intelligence (AI), cloud computing, big data and virtual reality (VR) technology. The rapid development of Internet courts in China has implications for regulating AI-related technologies, which are playing the role of the ‘fourth party,’ and the interplay between the ‘third party’ and the ‘fourth party.’


Xuhui Fang
Xuhui Fang is a law Professor at Nanchang University, NCTDR fellow, associated researcher at Cyberjustice of University of Montreal, mediator of International Commercial Mediation Center for Belt and Road Initiative in Beijing, mediator at Futian District Court of Shenzhen People’s Court, senior counsel of E-Better Business in Shenzhen.
Part II Private Justice

Reputational Feedback Systems and Consumer Rights

Improving the European Online Redress System

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords reputational feedback systems, consumer’s protection, dispute resolution, ADR, ODR, enforceability, ecommerce, European redress system small claims
Authors Aura Esther Vilalta Nicuesa
AbstractAuthor's information

    The European Union single market needs to tackle an outstanding issue to boost competitiveness and growth: a trust-based redress framework that ensures the effectiveness of consumers’ rights. The current disparities among dispute resolution mechanisms, added to the fact that in practice many do not guarantee participation and enforceability, are serious obstacles to this goal. Trust and the integration of certain dispute avoidance tools added to the regulation of some common enforcement mechanisms are key issues in the field of consumer protection. The goal of this article is to offer some insights within the context of the European Union legislative proposals aimed at improving the current redress system.


Aura Esther Vilalta Nicuesa
Aura Esther Vilalta Nicuesa is Professor of Law, Universitat Oberta de Catalunya (UOC) and member of the National Center or Technology and Dispute Resolution, Massachusetts, Amherst.
Part II Private Justice

Standards, Qualifications, and Certification for e-Mediators

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords Online Dispute Resolution, e-Mediation, ethics, standards of practice, qualifications, certification, International Mediation Institute, Association for Conflict Resolution, American Bar Association, American Arbitration Association, National Center for Technology and Dispute Resolution, International Council for Online Dispute Resolution, National Center for State Courts
Authors Ana Maria Gonçalves and Daniel Rainey
AbstractAuthor's information

    This article explores the question ‘how does one judge whether a mediator working online is competent?’ The authors compare the basic standards used to certify mediators working offline to a set of e-mediation standards developed by the International Mediation Institute, and suggest that training modules addressing the specific skills and competencies needed to be a successful online mediator be incorporated into basic mediator training.


Ana Maria Gonçalves
Ana Maria Gonçalves is the co-chair of the IMI ODR Taskforce, the founder and president of ICFML and a member of the Portuguese Mediation Federation (FMC). She is a graduate from UAL Lisbon and has a master of law degree. She is an IMI-certified mediator and is listed in the major international panels of mediators. She is a lecturer in major Portuguese and Brazilian Universities and is a regular speaker in International Conferences on the topics of ADR, mediation, negotiation and ODR. As a mediator, she works with a wide range of international clients, particularly on cross-border disputes, often online, and has mediated a wide variety of disputes in Europe, Australia and USA. She also designs and facilitates collaboration management training programs and, as an ICF-accredited PCC coach, she supports senior executives and professionals to develop their conflict management and negotiation skills.

Daniel Rainey
Daniel Rainey is a principle in Holistic Solutions, Inc., and he served as the co-chair of the IMI ODR Task Force. He is an adjunct professor at multiple universities in the United States, and he serves as a Board Member for the InternetBar.Org (IBO) and the Northern Virginia Mediation Service (NVMS). He is a member of the Virginia State Supreme Court’s Access to Justice Commission Self-Represented Litigants Committee, a Fellow of the National Center for Technology and Dispute Resolution (NCTDR) and a founding Board Member of the International Council for Online Dispute Resolution (ICODR).
Part II Private Justice

Decentralized Justice in the Era of Blockchain

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords ODR, blockchain, arbitration, decentralization, crowdsourcing
Authors James Metzger
AbstractAuthor's information

    ODR that is built on blockchain technology and infrastructure is championed by supporters as being capable of revolutionizing dispute resolution. Kleros is a decentralized dispute resolution platform built on the Ethereum blockchain that uses cryptoeconomic theories and game theory to recruit and incentivize a worldwide pool of ‘jurors’ to decide the cases arbitrated through the platform. This article discusses some early evaluations of whether this kind of decentralized ODR is likely to succeed by viewing the model through a normative framework, including considering whether crowdsourcing of justice on a decentralized platform is a viable way to conduct ODR. The article then discusses the likelihood of the success of the sub-court model, including whether choice-of-law issues might be problematic for a worldwide, decentralized system. Finally, the article considers whether the cryptoeconomic and game theories that provide the foundation for the Kleros platform are likely to result in a jury pool, much less an actual jury, that could be considered ‘fair.’ The article is informed by the author’s experience with the Kleros platform through participation in its interactive initial coin offering and engaging in its beta-testing phase.


James Metzger
Dr. James Metzger is a lecturer at the University of New South Wales Faculty of Law.
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