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    Under a former Austrian law effective until February 2019, Good Friday was a public holiday only for a minority belonging to certain Christian Evangelical churches. In the case at hand, Austrian courts had to assess if this regulation and its legal consequences were valid under European Union law, or if they constituted discrimination.


Dr. Jana Eichmeyer LL.M
Dr. Jana Eichmeyer, LL.M is a lawyer at Eisenberger & Herzog in Vienna (www.ehlaw.at).

Dr. Karolin Andréewitch
Dr. Karolin Andréewitch is a lawyer at Eisenberger & Herzog in Vienna (www.ehlaw.at).
Article

Access_open The Singapore International Commercial Court: The Future of Litigation?

Journal Erasmus Law Review, Issue 1 2019
Keywords international commercial court, Singapore, dispute resolution, litigation
Authors Man Yip
AbstractAuthor's information

    The Singapore International Commercial Court (‘SICC’) was launched on 5 January 2015, at the Opening of Legal Year held at the Singapore Supreme Court. What prompted the creation of SICC? How is the SICC model of litigation different from litigation in the Singapore High Court? What is the SICC’s track record and what does it tell us about its future? This article seeks to answer these questions at greater depth than existing literature. Importantly, it examines these questions from the angle of reimagining access of justice for litigants embroiled in international commercial disputes. It argues that the SICC’s enduring contribution to improving access to justice is that it helps to change our frame of reference for international commercial litigation. Hybridisation, internationalisation, and party autonomy, the underpinning values of the SICC, are likely to be the values of the future of dispute resolution. International commercial dispute resolution frameworks – typically litigation frameworks – that unduly emphasise national boundaries and formalities need not and should not be the norm. Crucially, the SICC co-opts a refreshing public-private perspective to the resolution of international commercial disputes. It illuminates on the public interest element of the resolution of such disputes which have for some time fallen into the domain of international commercial arbitration; at the same time, it introduces greater scope for self-determination in international commercial litigation.


Man Yip
BCL (Oxon).
Article

Access_open Matchmaking International Commercial Courts and Lawyers’ Preferences in Europe

Journal Erasmus Law Review, Issue 1 2019
Keywords choice of court, commercial court, lawyers’ preferences, survey on lawyers, international court
Authors Erlis Themeli
AbstractAuthor's information

    France, Germany, Belgium, and the Netherlands have taken concrete steps to design and develop international commercial courts. Most of the projects claim to be building courts that match the preferences of court users. They also try to challenge England and Wales, which evidence suggests is the most attractive jurisdiction in the EU. For the success of these projects, it is important that their proposed courts corresponds with the expectations of the parties, but also manages to attract some of the litigants that go to London. This article argues that lawyers are the most important group of choice makers, and that their preferences are not sufficiently matched by the new courts. Lawyers have certain litigation service and court perception preferences. And while the new courts improve their litigation service, they do not sufficiently addressed these court perception preferences.


Erlis Themeli
Postdoc, Erasmus School of Law, Erasmus University Rotterdam.
Article

Split Offer and Homogeneous Response in Belgium

The Conceptual and Empirical Limitations of (De)Nationalization

Journal Politics of the Low Countries, Issue 2 2019
Keywords (de-)nationalization, voting behaviour, party offer, voter response, methodological nationalism
Authors Luana Russo, Kris Deschouwer and Tom Verthé
AbstractAuthor's information

    By examining the Belgian case, this article aims to show that methodological nationalism is strongly present in the literature on nationalization of party offer and voting behaviour. In nationalization studies, Belgium is often presented as a typical example of a denationalized country. This is true for the party offer, as it is de facto split between the two language groups since the 1980s, and therefore also voter response at the national level. However, voter response within each separate subnational party system is very homogeneous and shows interesting differences between these party systems that inform us about important electoral dynamics. We argue, on the basis of our results, that rather than stretching the concept of nationalization, it is preferable and justified to treat the concepts of nationalization of the party offer and homogenization of voter response as analytically distinct and not as two sides of the same coin.


Luana Russo
Luana Russo, Maastricht University.

Kris Deschouwer
Kris Deschouwer, Vrije Universiteit Brussel.

Tom Verthé
Tom Verthé, Ghent University & Vrije Universiteit Brussel.
Article

Space Debris: Between Unity and Fragmentation – Risk as a Static Principle with Dynamic Outcomes

Journal International Institute of Space Law, Issue 6 2019
Keywords risk, space object, space debris removal, material environment, social milieu, collision prevention, harmful interference
Authors Ward Munters
AbstractAuthor's information

    This paper analyses the interrelationship between science, risk, international law and the prevention of collisions between space objects, so as to contribute to progressive development of international law and of an epistemic community invested with a common conceptual and terminological apparatus, as well as to examine interrelated juridical and technical obstacles and opportunities regarding the creation of an informed, uniform and therefore, it is posited, more effective regulatory regime.
    To contribute to establishing a common frame of reference, the article presents and explores an analytical and theoretical mapping exercise of some structural contours delineating mutual space object relations, positing the common construction of risk and its collective management as central to the asymptotic realization of uniformity in standards concerning space objects, space debris and its removal, and preventing physical interference or collisions. The paper proceeds from scientific insights into collision risk to uncover the extent of the technical notion of risk in this area before briefly examining how risk management mechanisms operate in international law to produce restrictions or permissions regarding future conduct, activities or incidents. Risk emerges as a ‘static’, i.e. common, principle with ‘dynamic’, i.e. variable, outcomes that may form the normative foundation of a uniform yet highly adaptive regulatory framework – a principle thus particularly suited to protean conditions in orbital space. Finally, some sketches follow of a heuristic device for envisaging the normative and jurisprudential construction of a static risk principle that can correlatively produce the substantively variable permissive rights and restrictive obligations as may attach to space objects, i.e. output, on the basis of evolving material conditions in orbit, i.e. input.


Ward Munters
Institute for International Law and Leuven Centre for Global Governance Studies, KU Leuven, Tiensestraat 41, 3000 Leuven, Belgium.

    According to the Belgian Supreme Court, a choice of Belgian law for an employment relationship extends to all provisions beyond the employment contract. If parties choose to apply Belgian law to their employment relationship, this choice may extend to all provisions of Belgian law which regulate the mutual rights and obligations of the parties. This includes legislation on well-being at work and, hence, the payment of a protection indemnity following dismissal after filing a claim for harassment.


Dr. Gautier Busschaert
Dr. Gautier Busschaert is an attorney at Van Olmen & Wynant in Brussels, www.vow.be.
Law Review

2019/1 EELC’s review of the year 2018

Journal European Employment Law Cases, Issue 1 2019
Authors Ruben Houweling, Catherine Barnard, Filip Dorssemont e.a.
Abstract

    For the second time, various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks.


Ruben Houweling

Catherine Barnard

Filip Dorssemont

Jean-Philippe Lhernould

Francesca Maffei

Niklas Bruun

Anthony Kerr

Jan-Pieter Vos

Luca Ratti

Daiva Petrylaite

Andrej Poruban

Stein Evju
Article

From Supra-Constitutional Principles to the Misuse of Constituent Power in Israel

Journal European Journal of Law Reform, Issue 3 2019
Keywords unconstitutional constitutional amendment, constitutional law, constitutional principles, constituent power, Israel, judicial review
Authors Suzie Navot and Yaniv Roznai
AbstractAuthor's information

    Israel has no one official document known as ‘the Constitution’ and for nearly half a century was based on the principle of parliamentary sovereignty. Still, since the ‘constitutional revolution’ of the 1990s, Israel’s supreme norms are expressed in its basic laws and laws are subject to judicial review. This situation is the result of the enactment of two basic laws dealing with human rights in 1992 – which included a limitation clause – and of a judicial decision of monumental significance in 1995, the Bank Hamizrahi case. In that decision, the Supreme Court stated that all basic laws – even if not entrenched – have constitutional status, and therefore the currently accepted approach is that the Knesset indeed dons two hats, functioning as both a legislature and a constituent authority. The novelty of the Bank Hamizrahi decision lies in its notion of a permanent, ongoing constituent authority. The Knesset actually holds the powers of a constitutional assembly, and legislation titled ‘Basic-Law’ is the product of constituent power. Though it is neither complete nor perfect, Israel’s constitution – that is, basic laws – addresses a substantial number of the issues covered by formal constitutions of other democratic states. Furthermore, though this formal constitution is weak and limited, it is nonetheless a constitution that defends the most important human rights through effective judicial review.
    Still, given the ease with which changes can be made to basic laws, the special standing of basic laws differs from the standing generally conferred on a constitution. Most basic laws are not entrenched, which means that the Knesset can alter a basic law by a regular majority. Over the past few years, there has been a tendency towards ad casum amendments of basic laws. These amendments are usually adopted against a background of political events that demand an immediate response on the part of the Knesset. The latter then chooses the path of constitutional – not regular – legislation, which is governed by a relatively smooth legislative passage procedure. Even provisional constitutional amendments were passed with relative ease followed by petitions presented to the Supreme Court, arguing that the Knesset’s constituent power is actually being ‘abused’.
    These petitions, as well as Israel’s peculiar constitutional development, presented the Supreme Court with several questions as to the power for judicial review of basic laws. Thus far, the Court’s endorsement of judicial review was based on the limitation clause found in both basic laws on human rights, but limitation clauses do not establish the criteria for a constitutional violation by constitution provisions. Does this mean that the Knesset’s constituent power is omnipotent?
    This article examines the almost unique position of Israeli jurisprudence in relation to the doctrine of ‘unconstitutional constitutional amendments’. It focuses on the possibility of applying the doctrine in the Israeli case laws, the often-raised notion of ‘supra-constitutional’ values that would limit the Knesset’s constituent power, and a third – newly created – doctrine of abuse (or misuse) of constituent power. A central claim of this article is that in light of the unbearable ease with which basic laws can be amended in Israel, there is an increased justification for judicial review of basic laws.


Suzie Navot
Suzie Navot is Full Professor, the Haim Striks School of Law, College of Management Academic Studies, Rishon Lezion.

Yaniv Roznai
Yaniv Roznai is Senior Lecturer, Harry Radzyner Law School, Interdisciplinary Center (IDC) Herzliya.
Article

Limited Constitutional Amendment Powers in Austria?

Journal European Journal of Law Reform, Issue 3 2019
Keywords total revision, amendment, constitutional principles
Authors Manfred Stelzer
AbstractAuthor's information

    In Austria, constitutional amendments can be attained rather easily. A two-thirds majority in parliament allows for engineering constitutional amendments. The Austrian constitution only knows one exception to its flexibility: the principles of the constitution (‘Verfassungsprinzipien’). When the constitutional principles were to be affected by formal amendment in terms of a ‘total revision’ (‘Gesamtänderung’), a higher threshold needs to be met in order to engineer an amendment. In addition to a two-thirds majority in parliament, a referendum is required. Two questions are of particular interest: First, when does a constitutional amendment amount to a total revision and what are its limits? Second, and even more important, which core principles are recognized by the Austrian constitution and what is their content? These questions may be briefly outlined.


Manfred Stelzer
Manfred Stelzer is Professor of Public Law at the University of Vienna.
Article

Unamendability and Constitutional Identity in the Italian Constitutional Experience

Journal European Journal of Law Reform, Issue 3 2019
Keywords Unamendability, constitutional identity, republic, counterlimits, European integration, Italy
Authors Pietro Faraguna
AbstractAuthor's information

    The article explores the historical roots of the explicit unamendable clause(s) in the Italian Constitution. Following, it explores the scholarly debate over the interpretation of unamendable provisions. The article investigates theories of implicit unamendability of the Italian Constitution, and, in particular, it analyses the crucial role played by the Constitutional Court of Italy (ICC) and the principles that characterize Italian constitutional identity. Furthermore, the article explores the other side of constitutional identity, namely the theory of ‘counterlimits.’ The ICC specified that constitutional identity not only sets a limit to constitutional amendment powers but also sets ‘counterlimits’ to the entry of external norms (i.e., supranational and international law) in the domestic legal system. Finally, the article draws some conclusions and argues that the two sides of constitutional identity, although legally and logically independent, mutually reinforce each other and, ultimately, reinforce the counter-majoritarian nature of unamendability.


Pietro Faraguna
Pietro Faraguna is Assistant professor of constitutional law, University of Trieste.

Antony Pemberton
Antony Pemberton is Full Professor of Victimology and Director of the International Victimology Institute (INTERVICT), Tilburg University, Tilburg, The Netherlands.
Literature review

Consensualism, Democratic Satisfaction, Political Trust and the Winner-Loser Gap

State of the Art of Two Decades of Research

Journal Politics of the Low Countries, Issue 1 2019
Keywords consensualism, majoritarianism, political trust, satisfaction with democracy, Lijphart
Authors Tom van der Meer and Anna Kern
AbstractAuthor's information

    Lijphart (1999) argued that citizens tend to be more satisfied with democracy in consensual democracies than in majoritarian democracies and that the gap in democratic satisfaction between the winners and the losers of elections is smaller under consensualism. Twenty years on since then, this article takes stock of the literature on consensualism and political support. We find considerable ambiguity in the theoretical arguments and empirical evidence provided in this literature. Finally, we speculate on possible reasons for this ambiguity.


Tom van der Meer
Tom van der Meer, University of Amsterdam.

Anna Kern
Anna Kern, Ghent University.
Article

Establishing a Legislative Scrutiny Framework

The Case of Delegated Legislation in the Parliament of South Africa

Journal European Journal of Law Reform, Issue 2 2019
Keywords parliamentary process, post-legislative scrutiny, procedural framework, delegated legislation
Authors Victoria Hasson
AbstractAuthor's information

    There is one indispensable contravention to the principle of separation of powers: parliaments must grant the executive the authority to make law in a delegated capacity. No modern state can be effectively governed without the executive making laws to supplement Acts of parliament. Delegating power does not mean that parliament loses its power. For parliament to retain its legislative authority what is required is a framework to support parliament to review the laws (and powers) that are being delegated, and that it has the capacity to monitor and regulate the use of that power by the Executive. At the start of South Africa’s new democracy in 1994, parliament had the opportunity to create a framework for effective delegated law-making. Yet the parliament took almost 10 years to develop its approach and a further 6 years to have this framework approved. Since then, the application of parliament’s scrutiny framework is challenged by a lack of political will that makes it difficult for this oversight to take place effectively, and a permanent, powerful mechanism to be agreed upon. A close look into how South Africa’s post-1994 delegated framework was developed offers insight into the challenges of developing parliamentary rules, practices and procedures in the context of a new representative democracy with significant developmental challenges. As parliament’s legislative supremacy is at stake, these insights are of vital importance to our consideration of how to strengthen the position, place and performance of parliaments as democracy assistance professionals, academics, MPs and parliamentary staff.


Victoria Hasson
Victoria Hasson is Senior Parliamentary Adviser, Westminster Foundation for Democracy.
Article

Post-Legislative Scrutiny of the Law against Gender-Based Violence

The Successful Story of the Cabo Verde Parliament

Journal European Journal of Law Reform, Issue 2 2019
Keywords oversight, post-legislative scrutiny, Cabo Verde, parliament
Authors Elisabete Azevedo-Harman and Ricardo Godinho Gomes
AbstractAuthor's information

    In 2011 Cabo Verde’s parliament approved the Law Against Gender-Based Violence (GBV). In 2014, 3 years later, the Women’s Caucus (WC) of this parliament agreed to trace the implementation of the law and its impact. This decision was taken without a clear perception of how to conduct post-legislative scrutiny (PLS) and without suspecting the eventual troubling findings. Post-legislative scrutiny has not previously been done in Cabo Verde, partly because of the inexperience of this democratic parliament, partly because PLS is a rather recent and still underdeveloped legislative activity anchored in oversight and legislation functions. In 2014 and 2015, Women’s Caucus conducted PLS of the GBV Law finding that the government had not enacted the necessary implementation rules to enforce this law, which hampered budget allocations and funding. According to the country’s legislative process this should have taken place within 10 months of the law’s approval. This study describes and discusses how the post-legislative scrutiny of the GBV Law was conducted and the lessons learned through this pioneering process in Cabo Verde’s parliament.


Elisabete Azevedo-Harman
Elisabete Azevedo-Harman is Professor on legislative and political institutions in Angolan and Mozambican universities, political advisor, international expert on parliamentary and institutional development. Currently is a senior consultant of the National Assembly of Angola.

Ricardo Godinho Gomes
Ricardo Godinho Gomes is a political scientist in the field of democratic governance since 2006 for UNDP, more specifically in electoral assistance, parliamentary strengthening and public finance management. He is a UNDP programme manager and he was the head of the management units of the project in support of electoral cycles in PALOP and Timor-Leste (2010-2013) and the Pro PALOP-TL SAI (2014-2017).
Article

Retrospective Policy Evaluation at the European Parliament

Journal European Journal of Law Reform, Issue 2 2019
Keywords European parliament, EU legislation, post-legislative scrutiny, scrutiny of the executive, Better Regulation
Authors José Luis Rufas Quintana and Irmgard Anglmayer
AbstractAuthor's information

    The European Parliament (EP) has become an active player in the evaluation of EU policy in recent years. In particular, the creation of a dedicated impact assessment capacity (both ex-ante and ex-post) within parliament’s administration, and the adoption of new rules for committees’ preparation of ‘implementation reports’ has led to an institutionalization of parliament’s evaluation activities. This article discusses the rationale for, and practice of, the European Parliament’s policy evaluation system in the context of the EU’s Better Regulation Agenda. It explains how, when and why the European Parliament performs retrospective evaluation. Moreover, it reflects on the complementary role of parliament’s evaluation work with regard to that of the European Commission and, finally, examines the value it adds in terms of accountability and agenda-setting.


José Luis Rufas Quintana
José Luis Rufas Quintana is Head of the Ex-post Evaluation Unit within the European Parliamentary Research Service.

Irmgard Anglmayer
Irmgard Anglmayer works as a policy analyst in the Ex-post Evaluation Unit within the European Parliamentary Research Service. The content of this article is the sole responsibility of the authors and any opinions expressed herein should not be taken to represent an official position of the European Parliament.
Article

Better Regulation and Post-Legislative Scrutiny in the European Union

Journal European Journal of Law Reform, Issue 2 2019
Keywords parliaments, post-legislative scrutiny, better regulation, European Union, legislation, regulation, democracy
Authors Davor Jancic
AbstractAuthor's information

    This article analyses the manner in which the EU’s Better Regulation Agenda impacts pre-legislative and post-legislative scrutiny by national parliaments, as two important dimensions of their function of democratic control over EU decision making. To this end, the article critically assesses the institutional arrangements and procedures foreseen under the Commission’s 2015 Better Regulation package and examines the 2017 review of the Better Regulation Agenda, which is a fresh push towards its enhancement. The article is structured as follows. After an overview of the legal grounding and evolution of better regulation in EU law, the analysis surveys the implications for parliaments of the Juncker Commission’s package of reforms, which are laid out in a Communication and implemented through a set of guidelines, a refurbished toolbox for practitioners, a revised Regulatory Fitness and Performance Programme (REFIT), and an Interinstitutional Agreement on Better Lawmaking adopted in 2016. On this basis, the article discusses post-legislative scrutiny of EU legislation on its own merits as well as from the perspective of its relationship with pre-legislative scrutiny. The latter is important since it is the most efficient way for parliaments to influence the contents of EU policies. The article concludes that the Better Regulation Agenda maintains the status quo in domestic parliamentary participation in EU affairs and misses the opportunity to fortify the latter’s European embeddedness.


Davor Jancic
Dr Davor Jancic is Lecturer in Law, Director of the English & European Law LLB programme, Department of Law, Queen Mary University of London.
Article

Post-Legislative Scrutiny in New Zealand

A Focus on Delegated Legislation

Journal European Journal of Law Reform, Issue 2 2019
Keywords post-legislative scrutiny, regulations review, parliamentary oversight, New Zealand, law reform proposals, comparative law
Authors Charles Chauvel
AbstractAuthor's information

    In New Zealand, a scheme for the political post-legislative scrutiny of delegated legislation has operated since 1989. The Regulations Review Committee of the House of Representatives systematically considers delegated legislation and may inquire into matters relating to it. By convention the Committee is chaired by a member of an opposition party and is supported by a dedicated secretariat. It may, on grounds that go beyond vires, draw the attention of the House to any provision of any regulation. If one of its members moves to disallow a statutory instrument, and if debate on the member’s motion is not brought on within a specified period, the instrument ceases to have legal effect. The note considers aspects of the Committee’s jurisdiction, and whether the successful operation of the Committee may have led to excess focus on the scrutiny of delegated legislation at the expense of the systemic post-enactment scrutiny of primary legislation.


Charles Chauvel
Charles Chauvel is a Former Member of Parliament, New Zealand and Official of the United Nations.
Article

The Role of National Human Rights Institutions in Post-Legislative Scrutiny

Journal European Journal of Law Reform, Issue 2 2019
Keywords National Human Rights Institution, parliament, legislation, reporting, post-legislative scrutiny
Authors Luka Glušac
AbstractAuthor's information

    This article explores the role of national human rights institutions (NHRIs) in post-legislative scrutiny (PLS), a topic that has been notably neglected in existing literature. The present research demonstrates that (1) legislative review is actually part of NHRIs’ mandate and (2) the applicable international standards (e.g. Belgrade and Paris Principles) provide for their actorness in all stages of legislative process. The main hypothesis is that NHRIs have already been conducting activities most relevant for PLS, even though they have not often been labelled as such by parliaments or scholars. In other words, we argue that their de facto role in PLS has already been well established through their practice, despite the lack of de jure recognition by parliamentary procedures. We support this thesis by providing empirical evidence from national practices to show NHRIs’ relevance for PLS of both primary and secondary legislation. The central part of this article concentrates on the potential of NHRIs to act as (1) triggers for PLS, and (2) stakeholders in PLS that has already been initiated. The article concludes with a summary of the results, lessons learned, their theoretical and practical implications and the avenues for further research.


Luka Glušac
Luka Glušac received his PhD in Political Science from the University of Belgrade; Faculty of Political Sciences. His PhD thesis explored the evolution of national human rights institutions (NHRIs) and their relations with the United Nations. He is adviser in the Secretariat of the Ombudsman of Serbia, since 2011. In 2018, he served as a National Institutions Fellow at The Office of the United Nations High Commissioner for Human Rights (OHCHR) in Geneva. He can be contacted at lukaglusac@gmail.com.
Article

Post-Legislative Scrutiny in a Non-Westminster Parliament

Opportunities, Challenges and Considerations

Journal European Journal of Law Reform, Issue 2 2019
Keywords post-legislative scrutiny, parliamentary oversight, legislative process, Verkhovna Rada of Ukraine, French Senate, Belgian federal parliament
Authors Jonathan Murphy and Svitlana Mishura
AbstractAuthor's information

    Post-legislative scrutiny (PLS) has generated growing interest as a means both for strengthening the legislative process and for permitting parliament to more effectively integrate its legislative and oversight functions. Engagement throughout the cycle of legislative development, adoption and implementation enables parliament to assure laws are properly implemented and to rectify weaknesses either in original legislative conceptualization or in executive implementation. Carried out properly, PLS should improve governance and increase its democratic accountability. Recent attention to PLS has however focused mainly on its role and use in Westminster-type parliaments. This article explores PLS from the perspective of non-Westminster parliaments. It seeks to understand why PLS in non-Westminster parliaments has received comparatively less scholarly and parliamentary development practitioner attention. The article uses a case study of Ukraine to explore the context and challenges for effective PLS, a non-Westminster emerging democracy. It concludes by proposing rebalancing discussion of PLS to take better account of diverse parliamentary models and suggests approaches to supporting PLS development in parliaments where it has not previously been consistently used


Jonathan Murphy
Jonathan Murphy is Docent, University of Jyvaskyla, Finland and parliamentary development consultant.

Svitlana Mishura
Svitlana Mishura is Deputy Head of the Main Legal Department of the Administration of the Parliament of Ukraine. The authors would like to thank UNDP Ukraine and the Verkhovna Rada of Ukraine for their support to the development of this article, and Anastasia Petrova for her invaluable research assistance in collecting data on PLS in the Verkhovna Rada.
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