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Article

Another Type of Deficit?

Human Rights, Corporate Social Responsibility, and the Shaping of the European Union’s Linkage Strategy

Journal European Journal of Law Reform, Issue 4 2014
Keywords human rights, corporate social responsibility, linkage strategy
Authors Aurora Voiculescu
AbstractAuthor's information

    This article engages with the European Union’s continuing strategy, in the context of the economic crisis, of addressing the human rights deficit of the current economic model by promoting a multifarious normative linkage between the economic, market-driven sphere and the human rights-anchored social sphere. The article looks into issues of normativity associated with the EU linkage agenda and interrogates some of its institutional and conceptual elements. It contends that, while the linkage discourse depends on a multitude of actors and factors, the EU encompasses a number of features that – by entropy as much as by design – facilitate an interrogation of the normative set-up that currently holds between human rights and the market mechanisms. The first part of the article addresses the linkage or ‘trade and’ debate that carries distinct nuances within contemporary international economic law. In the second part, the potential as well as the challenges brought about by the EU as a socio-political entity highlight the bringing together of competing normative issues. Lastly, the article considers the EU conceptual inroads in developing the necessary tools for consolidating and addressing the linkage agenda. Through this analysis, the article highlights an essential, dynamic nexus and a search for normative synchronisation between the economic development model and the social model. It is argued that coupling this nexus with a conceptual rethinking can increase the chances of matching the so far rhetorical persuasiveness of the linkage discourse with the so far elusive conceptual coherence and policy consistency.


Aurora Voiculescu
Westminster International Law and Theory Centre, University of Westminster, London, United Kingdom. A first draft of this paper was presented at the workshop organised by the Centre for the Law of EU External Relations (CLEER) ‘Linking trade and non-commercial interests: the EU as a global role model?’, on 9 November 2012 at the TMC Asser Institute, The Hague. I am very grateful to the workshop participants as well as to Tamara Takacs, Andrea Ott, and Angelos Dimopoulos for the very insightful comments that helped me develop the paper further. Of course, all remaining mistakes are entirely mine.
Article

Collective Action Clauses in the Eurozone

One Step Forward, Two Steps Back

Journal European Journal of Law Reform, Issue 4 2014
Keywords collective action clauses (CACs), sovereign debt restructuring, Eurozone, European Stability Mechanism
Authors Giuseppe Bianco
AbstractAuthor's information

    Amongst the measures taken inside the European Union to tackle the sovereign debt crisis, the focus of the legal scholarship has been mainly on the financial stability mechanisms and the European Central Bank’s action. These initiatives constitute the liquidity assistance part of the response. Arguably, less attention has been devoted to the initiatives intended to face issues of debt sustainability. As regards the course of action to adopt in case a country cannot repay its debt, the European Union opted for collective action clauses (CACs). This paper takes a critical look at the Eurozone CACs. It aims to answer the following research question: Are the adopted CACs an efficient means to achieve their purported objective (i.e. facilitate renegotiations of sovereign bonds between creditors and the sovereign debtor)? To do so, the paper investigates the CACs’ content and their historical bases. It then compares the final version with the initial draft and points to several interesting findings. The paper argues that it is likely that practical results from the use of CACs will be significantly below political leaders’ expectations.


Giuseppe Bianco
PhD Fellow, University of Oslo – Université Paris 1 Panthéon-Sorbonne. He can be reached at giuseppe.bianco@jus.uio.no. The author wishes to thank Régis Bismuth, Annamaria Viterbo, and Michael Waibel. Any errors and omissions are the sole responsibility of the author.
Article

Beyond Financialisation?

Transformative Strategies for More Sustainable Financial Markets in the European Union

Journal European Journal of Law Reform, Issue 4 2014
Keywords financialisation, financial market integration, financial reform, financial innovation, financial crisis
Authors Dieter Pesendorfer
AbstractAuthor's information

    The global financial crisis has led many regulators and lawmakers to a rethinking about current versus optimum financial market structures and activities that include a variety and even radical ideas about deleveraging and downsizing finance. This paper focuses on the flaws and shortcomings of regulatory reforms of finance and on the necessity of and scope for more radical transformative strategies. With ‘crisis economics’ back, the most developed countries, including the EU member states, are still on the edge of disaster and confronted with systemic risk. Changes in financial regulation adopted in the aftermath of the financial meltdown have not been radical enough to transform the overall system of finance-driven capitalism towards a more sustainable system with a more embedded finance. The paper discusses financialisation in order to understand the development trends in finance over the past decades and examines various theories to describe the typical trends and patterns in financial regulation. By focusing on a limited number of regulatory reforms in the European Union, the limitations of current reforms and the need for additional transformative strategies necessary to overcome the finance-driven accumulation regime are explored. Finally, the regulatory space for such transformative strategies and for taming finance in times of crisis, austerity, and increased public protest potential is analysed.


Dieter Pesendorfer
Queen’s University Belfast, School of Law, d.pesendorfer@qub.ac.uk.
Article

A Crisis Beyond Law, or a Crisis of Law?

Reflections on the European Economic Crisis

Journal European Journal of Law Reform, Issue 4 2014
Keywords Eurozone, economic crisis, Greece, debt, Grexit
Authors Ioannis Glinavos
AbstractAuthor's information

    This paper attempts to locate the place of law in debates on the economic crisis. It suggests that law is the meeting point of politics and economics, not simply the background to market operations. It is suggested therefore that the law should be seen as the conduit of the popular will through political decision making onto economic systems and processes. The paper argues that the crisis can be seen as being the consequence of the dis-embedding of the political from the economic, and it is this distance that causes legal frameworks to operate in unsatisfactory ways. With this theoretical basis, the paper examines the sovereign debt crisis in Europe. The European debt crisis in general and the plight of Greece in particular show why plasticity in policy making is necessary and also reveal why current orthodox solutions to economic calamities fail. The inflexibility of the neoclassical understanding of the state-market relationship does not allow for avenues out of crisis that are both theoretically coherent and politically welcome. Such realisations form the basis of the examination of the rules framing the Eurozone. This paper, after conducting an investigation of exit points from the Eurozone, condemns the current institutional framework of the EU, and especially the EMU as inflexible and inadequate to deal with the stress being placed on Europe by the crisis.


Ioannis Glinavos
Dr Ioannis Glinavos is Senior Lecturer in Law at the University of Westminster, i.glinavos@westminster.ac.uk.
Article

EU Corporate Governance

The Ongoing Challenges of the ‘Institutional Investor Activism’ Conundrum

Journal European Journal of Law Reform, Issue 4 2014
Keywords EU corporate governance, institutional investors, stewardship, shareholders, asset managers
Authors Konstantinos Sergakis
AbstractAuthor's information

    Institutional investor activism seems to be the ultimate means for steady improvement in corporate governance standards, as well as a powerful tool for refocusing short-term strategies towards more sustainable and viable business projects. Although EU institutions have endeavoured over the past decade to facilitate the exercise of a wide range of shareholder rights, the impact of such regulatory initiatives remains to be seen. This paper challenges the current EU regulatory approach by supporting the idea that, while it has touched upon important topics, such as companies or financial intermediaries, hoping that the investor community will make full use of its discretion and evaluation of these actors, it has avoided resolving another crucial issue, namely, that of investor behaviour. In fact, institutional investors have been partially accused of apathy and contributing indirectly to the EU capital markets crisis. EU law thus needs to find new ways to nurture and maintain an effective willingness to engage in long-term dialogue with companies. It is therefore crucial to reassess all EU initiatives and critically challenge their efficiency in order to propose a way forward to unblock institutional investor activism and establish a veritable alignment of objectives with corporate managers.


Konstantinos Sergakis
Lecturer in Law, University of Bristol. The author is very grateful to Professor Charlotte Villiers for her valuable comments at the early stages of this article. The usual disclaimer applies.
Article

Social Impact and Technology: Issues of Access, Inequality and Disputing in the Collaborative Economy

An Interview with Mitch Kapor

Journal International Journal of Online Dispute Resolution, Issue 2 2014
Keywords online dispute resolution, access, inequality, dispute systems design, collaborative economy
Authors Leah Wing
AbstractAuthor's information

    This article explores the value of focusing on the social impact of technology in business and in furthering the integration of online dispute resolution into the collaborative economy. The keynote presentation at ODR2014 by technology industry leader and entrepreneur Mitch Kapor serves as the cornerstone of this discussion. Speaking to an audience from the dispute resolution, legal, technological and financial communities, Kapor discusses the potential of businesses to increase their positive social impact, particularly with regard to access to equality, mutual gains and dispute prevention within the sharing economy. The examples from innovative tech companies illustrate the important role that information management, systems design and impact-savvy business practices play in this endeavour. Building on the keynote, the article suggests how the exploration of questions of social impact and inclusion and the application of related principles can lead to a deeper integration of ODR systems into the collaborative economy and more effective ODR dispute systems design.


Leah Wing
Leah Wing is Co-Director, National Center for Technology and Dispute Resolution, and Senior Lecturer, Legal Studies Program, Department of Political Science, University of Massachusetts at Amherst (USA).
Article

Disintegration of the State Monopoly on Dispute Resolution

How Should We Perceive State Sovereignty in the ODR Era?

Journal International Journal of Online Dispute Resolution, Issue 2 2014
Keywords online dispute resolution, sovereignty, justification
Authors Riikka Koulu LLM
AbstractAuthor's information

    The interests of state sovereignty are preserved in conflict management through adoption of a state monopoly for dispute resolution as the descriptive and constitutive concept of the resolution system. State monopoly refers to the state’s exclusive right to decide on the resolution of legal conflicts on its own soil, in other words, in the state’s territorial jurisdiction. This also forms the basis of international procedural law. This conceptual fiction is derived from the social contract theories of Hobbes and Locke, and it preserves the state’s agenda. However, such a monopoly is disintegrating in the Internet era because it fails to provide an effective resolution method for Internet disputes in cross-border cases, and, consequently, online dispute resolution has gained ground in the dispute resolution market. It raises the question of whether we should discard the state monopoly as the focal concept of dispute resolution and whether we should open a wider discussion on possible justificatory constructions of dispute resolution, i.e. sovereignty, contract and quality standards, as a whole, re-evaluating the underlying structure of procedural law.


Riikka Koulu LLM
Riikka Koulu, LLM, trained on the bench, is currently a doctoral candidate in procedural law at the University of Helsinki, Finland.
Article

@ Face Value?

Non-Verbal Communication and Trust Development in Online Video-Based Mediation

Journal International Journal of Online Dispute Resolution, Issue 2 2014
Keywords trust, mediation, non-verbal communication, rapport, technology
Authors Noam Ebner and Jeff Thompson
AbstractAuthor's information

    Mediation is a process wherein a third party, or mediator, attempts to assist two conflicting parties in dealing with their dispute. Research has identified party trust in the mediator as a key element required for mediator effectiveness. In online video-based mediation, the addition of technology to the mix poses both challenges and opportunities to the capacity of the mediator to build trust with the parties through non-verbal communication. While authors researching the field of online dispute resolution have often focused on trust, their work has typically targeted text-based processes. As online dispute resolution embraces video-based processes, non-verbal communication becomes more salient. Non-verbal communication research has identified examples of specific actions that can contribute to trust. This article combines that research with current scholarship on trust in mediation and on non-verbal communication in mediation to map out the landscape mediators face while seeking to build trust through non-verbal communication in online video-based mediation. Suggestions for future research and implications for practice are noted, holding relevance to researchers and practitioners in any field in which trust, non-verbal communication and technology converge.


Noam Ebner
Noam Ebner is Associate Professor and Online Program Chair at the Werner Institute, Creighton University School of Law: 2500 California Pl., Omaha, NE 68178, NoamEbner@creighton.edu

Jeff Thompson
Jeff Thompson is PhD candidate at the Griffith University Law School: 170 Kessels Road, Brisbane, Queensland, Australia 4111, Jeff.Thompson@griffithuni.edu.au.
Article

Access_open Legal Advice in Police Custody: From Europe to a Local Police Station

Journal Erasmus Law Review, Issue 4 2014
Keywords legal advice, police interrogation, European Union, England and Wales, France
Authors Anna Ogorodova and Taru Spronken
AbstractAuthor's information

    In October 2013, the European Union adopted a Directive, which guarantees, inter alia, the right of access to a lawyer to suspects of criminal offences from the outset of police custody and during police interrogation. However, adoption of the relevant legislation is not sufficient to ensure that this right becomes effective in practice. A range of practical measures will have to be taken by the Member States’ authorities and the legal profession to effectuate the implementation of the right to custodial legal advice. This article aims to identify the practical factors that may influence the implementation of the Directive, based on the findings of a recent normative and empirical study conducted by the authors. The research was carried out in four European jurisdictions (England and Wales, France, the Netherlands and Scotland), and it consisted of analysis of regulations, observations of daily practice in police stations, accompanying lawyers who provided custodial legal advice, and interviews with criminal justice practitioners. The article provides a range of recommendations on the practical measures to be undertaken by the EU Member States and national Bar associations aiming at improving the protection of suspects’ rights in police custody in practice.


Anna Ogorodova
Anna Ogorodova, LLM is PhD researcher at the University of Maastricht.

Taru Spronken
Dr Taru Spronken is Professor of Criminal Law and Criminal Procedure at Maastricht University and Advocate General at the Supreme Court in the Netherlands.
Article

Access_open Juveniles’ Right to Counsel during Police Interrogations: An Interdisciplinary Analysis of a Youth-Specific Approach, with a Particular Focus on the Netherlands

Journal Erasmus Law Review, Issue 4 2014
Keywords legal representation, counsel, juvenile justice, police interrogations, children’s rights
Authors Prof. Dr. Ton Liefaard Ph.D. LL.M and Yannick van den Brink
AbstractAuthor's information

    The right to counsel of juveniles at the stage of police interrogations has gained significant attention since the Salduz ruling of the European Court on Human Rights in 2008. The legislative and policy developments that have taken place since then and that are still ongoing – both on a regional (European) and domestic (Dutch) level – reveal a shared belief that juvenile suspects must be awarded special protection in this phase of the criminal justice proceedings. This calls for a youth-specific approach as fundamentally different from the common approach for adults. At the same time, there seems to be ambivalence concerning the justification and concrete implications of such a youth-specific approach. This article aims to clarify the underlying rationale and significance of a youth specific approach to the right to counsel at the stage of police interrogations on the basis of an interdisciplinary analysis of European Court on Human Rights case law, international children’s rights standards and relevant developmental psychological insights. In addition, this article aims to position this right of juveniles in conflict with the law in the particular context of the Dutch juvenile justice system and provide concrete recommendations to the Dutch legislator.


Prof. Dr. Ton Liefaard Ph.D. LL.M
Prof. Dr. T. Liefaard is Professor of Children’s Rights (UNICEF Chair) at Leiden Law School, Department of Child Law; t.liefaard@law.leidenuniv.nl.

Yannick van den Brink
Y.N. van den Brink, LL.M, MA, is PhD researcher at Leiden Law School, Department of Child Law; y.n.van.den.brink@law.leidenuniv.nl.
Article

Access_open False Confessions in the Lab: A Review

Journal Erasmus Law Review, Issue 4 2014
Keywords confession, interrogation, evidence
Authors Eric Rassin Ph.D. and Han Israëls
AbstractAuthor's information

    Intuitively, confession is a strong piece of evidence, because it appears unlikely that a suspect would confess to a crime he did not commit, thereby acting against his own best interest. Surprisingly, experimental studies show that innocent and well-educated individuals do tend to confess falsely when questioned about something they did not in fact do. In this contribution, an overview is presented of the experimental research on confession evidence. Limitations and implications of the scientific insights are discussed.


Eric Rassin Ph.D.
Eric Rassin is Endowed Professor of Legal Psychology at the Faculty of Social Sciences and the School of Law at Erasmus University Rotterdam.

Han Israëls
Han Israëls is Assistant Professor in Legal Psychology at the Maastricht University.
Article

Access_open Legal Assistance and Police Interrogation

(Problematic Aspects of) Dutch Criminal Procedure in Relation to European Union and the Council of Europe

Journal Erasmus Law Review, Issue 4 2014
Keywords Legal assistance, police interrogation, Dutch Criminal Proceedings, EU Directive
Authors Paul Mevis and Joost Verbaan
AbstractAuthor's information

    This paper discusses the rise of a fundamental issue in Dutch criminal proceedings. The presence of a lawyer prior to and during police interrogations has for a long time been a matter open for debate in the Netherlands. Allowing legal assistance during and prior to police interrogations has been researched on several occasions in the previous century and the beginning of this century. In the Netherlands, one of the most important reasons for not admitting legal assistance was and is founded in the confident reliance on the professionalism and integrity of police officers and justice officials in dealing with the interests of suspects. However, after the Salduz case (ECHR 27 November 2008, Appl. No. 36391/02, Salduz v. Turkey), the Dutch government was compelled to draft legal provisions in order to facilitate legal assistance during and prior to police interrogations. The initial drafts still contained a hesitant approach on admitting the lawyer to the actual interrogation. The EU-Directive of November 2013 (Pb EU 2013, L249) set out further reaching standards compelling the Dutch government to create new drafts. In a ruling of April 2014, the Dutch Supreme Court (ECLI:NL:2014:770) argued that the judgements of the ECtHR were too casuistic to derive an absolute right to have a lawyer present during police interrogation. However, they urged the legislator to draft legislation on this matter and warned that its judgement in this could be altered in future caused by legal developments. The Dutch legislator already proposed new draft legislation in February. In this paper it is examined whether the provisions of the new drafts meet the standards as set out in the EU-Directive as well as by the ECtHR.


Paul Mevis
Paul Mevis is Professor of Criminal Law and Criminal Procedure at the Faculty of Law of the Erasmus. He has been a visiting professor at the universities of Münster, Mmabato (South Africa) and in Moldavia, the Ukrain and in Frankfurt an der Oder. Besides his academic activities, Paul Mevis is Honorary Judge at the Criminal Court of Rotterdam and Honorary Judge at the Court of Appeal in Amsterdam, since 1994 and 1998 respectively. He has been parttime Judge at the Court of Arnhem (1990-1994) and is member of the Commission of Supervision of prisons (2006-2008). Paul Mevis is also member of the board of editors of several journals in the field of criminal law and human rights law and commentator for the journal ‘Nederlandse Jurisprudentie’ on criminal cases. He was chairman of the ‘Commissie Strafvordelijke gegevensvergaring in de informatiemaatschappij’ (2000-2001), of which the report has lead to the Bill of the same name. He is a member of the School of Human Rights Research and the Research School on Safety and Security in Society.

Joost Verbaan
Mr. J.H.J. (Joost) Verbaan is an assistant-professor at the Erasmus School of Law of the Erasmus Universiteit Rotterdam. He teaches Criminal Law and Criminal Procedure law. Mr. Verbaan is the Managing Director of the Erasmus Center for Police Studies (ECPS). The ECPS organises courses on criminal and criminal procedure law for law enforcement agencies as well as the prosecution. Mr. Verbaan has been involved in many researches in the practical field of investigation. He has taken part in the research for the Governmental Institute of Scientific Research and Documentation on the effects of the presence of an attorney during the first police interrogation.For the same institute together with professor Mevis he researched the Modalities of Serving in comparative law perspective.He served the secretary of the Committee to draft a new Dutch Antillean Criminal Code and served the secretary of the Committee to draft a new Criminal Code for Aruba, Sint Maarten and Curacao. He served the secretary of the Committee to Draft a common Criminal Procedure Code in the Caribbean regions of Aruba, Curacao , Sint Maarten and the BES-territories. In the republic of Surinam Mr. Verbaan has worked in the legal advisory board of the Committee founded in order to codify a new Criminal Code for the republic of Surinam.

Willem-Jan Verhoeven Ph.D.
Erasmus School of Law, Department of Criminology, Erasmus University Rotterdam.
Editorial

Access_open Guest Editorial

Special Issue on Cooperatives

Journal The Dovenschmidt Quarterly, Issue 4 2014
Authors Ger J.H. van der Sangen
Author's information

Ger J.H. van der Sangen
Dr Ger J.H. van der Sangen is Associate Professor Company Law and Securities Law at Tilburg Law School, Department of Business Law, and senior fellow of the Tilburg Center for Company Law.
Article

Access_open The Essential Role of Cooperative Law

Journal The Dovenschmidt Quarterly, Issue 4 2014
Keywords comparative cooperative law, organizational law, mutual purpose, cooperative identity, social function
Authors Antonio Fici
AbstractAuthor's information

    The idea that cooperative law is essential for the development of cooperatives is not new, but only lately is it spreading rapidly within cooperative circles and urging representative entities of the cooperative movement to take concrete actions. Also in light of this renewed interest towards the cooperative legal theory, this article will seek to demonstrate that recognizing and protecting a distinct identity based on a specific purpose constitute the essential role of cooperative law. The article will subsequently discuss, also from a comparative legal perspective, the nature and essence of the cooperative purpose and some related regulation issues.


Antonio Fici
Professor of Private Law at the University of Molise and of Comparative Cooperative Law at the L.U.M.S.A. of Rome.
Article

Access_open Ownership, Governance and Related Trade-Offs in Agricultural Cooperatives

Journal The Dovenschmidt Quarterly, Issue 4 2014
Keywords investment constraints, collective decision-making, organizational complexity, agricultural cooperative, residual ownership rights
Authors Constantine Iliopoulos
AbstractAuthor's information

    Agricultural cooperatives represent a key institutional arrangement in the world food and agriculture industries. Understanding these business organizations by adopting multi-disciplinary perspectives serves both scholarly and societal needs. This article addresses two issues: (1) how agricultural cooperatives choose from a plethora of ownership and governance features and (2) what are the main trade-offs cooperatives face in making these choices. Both issues have important implications for the efficiency of collective entrepreneurship organizations in food supply chains and thus for food nutrition security and food quality. The article proffers observations based on the extant literature and the author’s field experience. It is concluded that agricultural cooperatives choose ownership and governance features in an attempt to attract risk capital for investments while optimizing collective decision-making efficiency. The main trade-offs that cooperatives address while making these choices are between (1) investor mentality and member-patron control, (2) organizational complexity and vagueness of ownership rights, (3) the need for risk capital and member control, (4) organizational complexity and member control and (5) management monitoring costs and the costs of collective decision-making. These observations are highly relevant for organizational scholars, cooperative practitioners and policymakers as they inform decision-making in cooperatives in more than one way.


Constantine Iliopoulos
Dr. Iliopoulos is the Director of the Agricultural Economics Research Institute and Adjunct Professor at the Agricultural University of Athens, Athens, Greece. E-mail: iliopoulosC@agreri.gr.
Article

Access_open Transnationalization of Agricultural Cooperatives in Europe

Journal The Dovenschmidt Quarterly, Issue 4 2014
Keywords agriculture, agrifood, cooperatives, internationalization, transnationalization
Authors Jos Bijman, Perttu Pyykkönen and Petri Ollila
AbstractAuthor's information

    Agricultural cooperatives in Europe are increasingly expanding beyond their home countries. A number of these cooperatives have become transnational cooperatives, which means that they have members in more than one country. Examples can be found particularly in the dairy and fruit and vegetables industry. This article presents an overview of the recent internationalization and transnationalization processes among agricultural cooperatives in Europe and is the first academic publication that provides empirical data on cross-border membership. The article discusses the pros and cons of having members in several countries, as well as the different trajectories along which cooperatives may become transnational. Transnationalization entails substantial challenges for the member-cooperative relationship due to differences in culture, language, legislation and business practices. The professional management usually prefers an internationalization strategy above a transnationalization strategy. While further internationalization of agricultural cooperatives is expected, foreign membership will continue to be a major challenge for boards of directors.


Jos Bijman
Dr. Jos Bijman, Management Studies Group, Wageningen University.

Perttu Pyykkönen
Dr. Perttu Pyykkönen, Pellervo Economic Research PTT, Helsinki.

Petri Ollila
Dr. Petri Ollila, Department of Economics and Management, University of Helsinki.
Article

Access_open How to Regulate Cooperatives in the EU?

A Theory of Path Dependency

Journal The Dovenschmidt Quarterly, Issue 4 2014
Keywords cooperative law, company law, EU harmonization, business form, governance
Authors Ger J.H. van der Sangen
AbstractAuthor's information

    In this article, the phenomenon of path dependency has been addressed in view of the harmonization of cooperative law in the EU. The question is raised whether and how the legislative harmonization has an impact on co-operators in their efforts of setting up and maintaining efficient cooperative organizations and whether in this respect the Statute for the European Cooperative Society (hereinafter: SCE) is a helpful tool to facilitate the enhancement of national statutes on cooperatives as well as to provide the legal infrastructure to facilitate cross-border cooperation amongst and reorganizations of cooperatives in the EU.
    The case for the cooperative as a viable business form gained momentum in the EU policy debate with the development of the SCE Statute in 2003, the outbreak of the financial and economic crisis in 2008 and with the endorsement of the cooperative business concept by the United Nations and the International Labour Organization in 2012. If the sound development of cooperatives as an alternative legal business form vis-à-vis investor-owned firms is considered a policy instrument to enhance societal business activities – notably in the field of agriculture and social economy – it raises the question how cooperatives should be regulated to fulfil their function in this respect.
    The key argument presented in this article is that due to strong tendencies of path dependency a top-down approach of EU law-making was and is not a feasible option. The cooperative as a multifaceted institution requires a multifaceted approach taking into account the historical legislative developments of distinctive jurisdictions as well as the historical economic development of cooperative organizations in their specific jurisdiction. However, the existence of path dependency and the lack of regulatory arbitrage as well as regulatory competition prevent the market from generating efficient model statutes for cooperatives taking into account the specific needs of cooperatives and their co-operators.


Ger J.H. van der Sangen
Dr Ger J.H. van der Sangen is Associate Professor Company Law and Securities Law at Tilburg Law School, Department Business Law. He was part of the research team of the EU-funded project Support for Farmers’ Cooperatives. He would like to express his gratitude to all the members of the research team for sharing their insights and discussions during conference meetings in Brussels (November 2011 and 2012) and in Helsinki (June 2012), in particular J. Bijman, C. Gijselinckx, G. Hendrikse, C. Iliopoulos and K. Poppe.
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