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    This paper examines three Inter-American Court (IACtHR) cases on behalf of the Enxet-Sur and Sanapana claims for communal territory in Paraguay. I argue that while the adjudication of the cases was successful, the aftereffects of adjudication have produced new legal geographies that threaten to undermine the advances made by adjudication. Structured in five parts, the paper begins with an overview of the opportunities and challenges to Indigenous rights in Paraguay followed by a detailed discussion of the adjudication of the Yakye Axa, Sawhoyamaxa, and Xákmok Kásek cases. Next, I draw from extensive ethnographic research investigating these cases in Paraguay to consider how implementation actually takes place and with what effects on the three claimant communities. The paper encourages a discussion between geographers and legal scholars, suggesting that adjudication only leads to greater social justice if it is coupled with effective and meaningful implementation.


Joel E. Correia Ph.D.
Postdoctoral Research Associate in the Center for Latin American Studies at the University of Arizona.
Case Reports

2018/6 Dismissals anticipating a transfer of undertaking validated (HU)

Journal European Employment Law Cases, Issue 1 2018
Keywords Dismissal/severance payment, Transfer of undertaking
Authors Gabriella Ormai
AbstractAuthor's information

    The Hungarian Supreme Court has held that within the context of the transfer of an undertaking, the transferee can terminate employment relationships immediately after the transfer for operational reasons and can commence preparations to that effect before the transfer.


Gabriella Ormai
Gabriella Ormai is a managing partner with Ormai és Társai CMS Cameron McKenna Nabarro Olswang LLP Ügyvédi Iroda in Budapest, https://cms.law/en/HUN/Office/Budapest.
Case Reports

2018/7 ‘Ryanair’ after ‘Ryanair’: Crew member still left empty-handed? (NL)

Journal European Employment Law Cases, Issue 1 2018
Keywords Private international law, Competency, Applicable law
Authors Amber Zwanenburg
AbstractAuthor's information

    A Dutch first instance court applies the recent ECJ Ryanair ruling (C-168/16 and C-169/16) in another Ryanair private international law dispute. Even though the Dutch court accepted jurisdiction, it applied Irish law to the employees’ unfair termination claim.


Amber Zwanenburg
Amber Zwanenburg is a lecturer in labour law at the Erasmus University, Rotterdam.

    Since its inception, space law has been governed by principles and rules established by governments and primarily applicable to government activities. Today we are experiencing policy changes to encourage private sector initiatives to carry out government missions and to expand potential profit-making opportunities. The space treaties allow for nongovernmental activities in space but only under the auspices of a nation. Each nation approaches legal solutions in their own way. These variations in national law may create challenges for all space-faring nations. If there are no international agreements, they may create a more fragmented, unpredictable, and unsustainable environment for all participants, both governments and private companies in outer space.
    The fragmentation of international law is defined by the development of sets of rules pertaining to specific subject areas that may claim autonomy from principles of general international law. Those subject areas reflect the larger global issues that include the environment, energy, resource availability, migration, health, and the proliferation of weapons of mass destruction. Space law is unique and may be considered one of the fragmented areas of international law. The principles of the now 50-year old treaties have been formally acknowledged by all space-faring nations. New developments may threaten that.
    At issue are many areas of space law including liability, property rights, and environmental harm. Different on-orbit space activities such as satellite servicing, exploiting resources, and removing debris highlight the types of space activities with many similar legal concerns but which may result in different rules in different nations and even for different rules within a nation. New and growing legal tensions among space-faring nations will arise.
    Solutions to this problem are all suboptimal. Neither top-down oversight nor separate bottom-up rules or guidelines will suffice as stable, predictable, and long-lasting regimes that create a favorable legal environment for future public and private space exploration and use.


Henry R. Hertzfeld
Director and Research Professor, Space Policy Institute, George Washington University, Washington, DC; hhertzfeld@law.gwu.edu.

Joao Salm
Assistant Professor of Criminal Justice, Governors State University (USA). Contact author: jsalm@govst.edu.

Estelle Zinsstag

Ivo Aertsen

Lode Walgrave

Fernanda Fonseca Rosenblatt

Stephan Parmentier
Annual lecture

Access_open Restorative justice and criminal justice: limits and possibilities for Brazil and Latin America

Journal The International Journal of Restorative Justice, Issue 1 2018
Keywords Justice restorative, criminal justice, punishment, Brazil, Latin America
Authors Vera Regina Pereira de Andrade
AbstractAuthor's information

    This article is based on the 2017 RJIJ annual lecture and seeks to examine the development of the restorative justice movement within the judiciary in Brazil (‘judicial restorative justice’) in the last decade or so (2005-2017). The focus is on its relation to penal justice, listing the main possibilities and challenges in the Latin American context. The main question I wish to address is how does restorative justice, being led by the judiciary in Brazil, look like? When, where, how and under which theoretical and methodological angles is it being developed? What are the human and material resources being used? How can the relationship between restorative justice and the current Brazilian criminal justice system be understood? My hypothesis is that judicial restorative justice in Brazil is going through a process of expansion and development, framing a paradigm that is under construction and in which, despite the possibilities of challenging and transforming the current justice system, it has been nevertheless colonised by this same justice system. Therefore, restorative justice is being left to deal with low-level crimes and facing structural and conjectural limits to the concretisation of its objectives. In addition, the field in Brazil is hit by a structural lack of dialogue with other Latin American countries, which results in a mutual impoverishment of sorts, as the ‘restorativism’ currently experienced, hither and thither, is heated up by the intersection of emancipatory principles and values.


Vera Regina Pereira de Andrade
Vera Regina Pereira de Andrade is Emeritus Professor, Federal University of Santa Catarina, Florianópolis, Brazil. Contact author: vrpandrade@hotmail.com.
Article

Restorative justice: a framework for examining issues of discipline in schools serving diverse populations

Journal The International Journal of Restorative Justice, Issue 1 2018
Keywords Restorative justice in U.S. schools, school-based discipline, discipline gap, social justice
Authors Carrie Ann Woods and Martha Lue Stewart
AbstractAuthor's information

    The purpose of this article is to explore the literature on restorative justice (RJ) as employed in educational settings and its relationship to student achievement and to present it as a model for working with high-needs populations. While there is no single measure to determine ‘need’ amongst students, the reference in this article is to particularly vulnerable populations of students, due to racial, linguistic, academic or other differences. Information sources utilised in this study were chosen based on their relevance to the application and assessment of RJ programmes implemented with youth in school systems, with a particular focus on its relevance in the context of the United States. This article points at the history of RJ and how particularly impactful such programmes can be with this target group, given the aims and desired outcomes of this philosophy.


Carrie Ann Woods
Carrie Ann Woods is a Doctoral Student, National Urban Special Education Leadership Initiative, University of Central Florida, Orlando, USA. Contact author: carrie.woods@ucf.edu.

Martha Lue Stewart
Martha Lue Stewart is a Professor at the Department of Child, Family and Community Sciences, University of Central Florida, Orlando, USA.
Article

Transferring Rights of Satellite Imagery and Data: Current Contract Practice and New Challenges

Journal International Institute of Space Law, Issue 3 2018
Keywords geospatial, remote sensing, Incoterms, intellectual property
Authors Jordi Sandalinas Baró
AbstractAuthor's information

    The present work refers to the challenge of understanding the emerging contractual paradigm referred to satellite imagery and data online commerce. Issues like the role of consent in new online contract forms will be analyzed. In this regard, the formation of online contracts requires the existence of consent given by the parties to the contract. The formation of contracts known as “click-wrap”, “browse-wrap” and “shrink-wrap” agreements constitute a new paradigm in the tradition of online commerce related to satellite imagery and data. The author highlights other legal challenges encountered during his research and practice such as the Intellectual Property Paradigm regarding Geospatial imagery and data commercial transactions. Moreover, Value Added Data and the Exhaustion of Rights Principle of the rights deserve also some close attention and must be added to the present study.


Jordi Sandalinas Baró
Attorney at Law, Maritime SDI, Drone and Satellite Law, Lecturer and Course Instructor, Universitat Oberta de Catalunya, CEO Image Sea Solutions, Coordinator SpaceLaw.net, email: advocat@sandalinas.com.
Article

Access_open Legal Legitimacy of Tax Recommendations Delivered by the IMF in the Context of ‘Article IV Consultations’

Journal Erasmus Law Review, Issue 2 2017
Keywords legitimacy, International Monetary Fund (IMF), Article IV Consultations, tax recommendations, global tax governance
Authors Sophia Murillo López
AbstractAuthor's information

    This contribution examines the legal legitimacy of ‘Article IV Consultations’ performed by the IMF as part of its responsibility for surveillance under Article IV of its Articles of Agreement. The analysis focuses on tax recommendations given by the Fund to its member countries in the context of Consultations. This paper determines that these tax recommendations derive from a broad interpretation of the powers and obligations that have been agreed to in the Fund’s Articles of Agreement. Such an interpretation leads to a legitimacy deficit, as member countries of the Fund have not given their state consent to receive recommendations as to which should be the tax policies it should adopt.


Sophia Murillo López
Sophia Murillo López, LL.M, is an external PhD candidate at the Erasmus University Rotterdam and a member of the ‘Fiscal Autonomy and its Boundaries’ research programme.
Article

Access_open The Questionable Legitimacy of the OECD/G20 BEPS Project

Journal Erasmus Law Review, Issue 2 2017
Keywords base erosion and profit shifting, OECD, G20, legitimacy, international tax reform
Authors Sissie Fung
AbstractAuthor's information

    The global financial crisis of 2008 and the following public uproar over offshore tax evasion and corporate aggressive tax planning scandals gave rise to unprecedented international cooperation on tax information exchange and coordination on corporate tax reforms. At the behest of the G20, the OECD developed a comprehensive package of ‘consensus-based’ policy reform measures aimed to curb base erosion and profit shifting (BEPS) by multinationals and to restore fairness and coherence to the international tax system. The legitimacy of the OECD/G20 BEPS Project, however, has been widely challenged. This paper explores the validity of the legitimacy concerns raised by the various stakeholders regarding the OECD/G20 BEPS Project.


Sissie Fung
Ph.D. Candidate at the Erasmus University Rotterdam and independent tax policy consultant to international organisations, including the Asian Development Bank.
Article

Access_open The Peer Review Process of the Global Forum on Transparency and Exchange of Information for Tax Purposes

A Critical Assessment on Authority and Legitimacy

Journal Erasmus Law Review, Issue 2 2017
Keywords Global Forum on Transparency and Exchange of Information, exercise of regulatory authority, due process requirements, peer review reports, legitimacy
Authors Leo E.C. Neve
AbstractAuthor's information

    The Global Forum on transparency and exchange of information for tax purposes has undertaken peer reviews on the implementation of the global standard of exchange of information on request, both from the perspective of formalities available and from the perspective of actual implementation. In the review reports Global Forum advises jurisdictions on required amendments of regulations and practices. With these advices, the Global Forum exercises regulatory authority. The article assesses the legitimacy of the exercise of such authority by the Global Forum and concludes that the exercise of such authority is not legitimate for the reason that the rule of law is abused by preventing jurisdictions to adhere to due process rules.


Leo E.C. Neve
Leo Neve is a doctoral student at the Erasmus School of Law, Rotterdam.
Article

Codification in a Civil Law Jurisdiction: An Italian Perspective

Journal European Journal of Law Reform, Issue 4 2017
Keywords civil law jurisdictions, codification, consolidation, legislative drafting, judicial review
Authors Enrico Albanesi
AbstractAuthor's information

    The aim of this article is to describe the mechanism of codification in a civil law jurisdiction. The case study will be based on the Italian system. The history and developments of the Italian codification will also be described here.
    In Italy codification is called riassetto, it is normally carried out by the government but the changes to existing law must be within the strict boundaries of the principles and criteria set out by the parliament. By contrast, the mechanism to amalgamate existing texts dealing with a single topic without radical changes is called consolidamento. It is carried out by the government as delegated by parliament. However, as the tools to carry out riassetto and consolidamento are the same (decreto legislativo: a decree issued by the government, which is delegated by the parliament), it is not always easy to understand when the government is allowed to carry out consolidamento only or riassetto too. Actually, how fundamentally the government is allowed to change existing legislation depends on what the principles and criteria of the enabling Act of Parliament allows.
    A decreto legislativo that is not in compliance with the principles and criteria established by the Act of Parliament, could be declared void by the Corte costituzionale (the Italian Constitutional Court). Therefore, if the government exceeds the boundaries of consolidamento or riassetto, the decreto legislativo could be declared void.
    This essay will also focus on the different drafting techniques of consolidamento and riassetto from a theoretical perspective and from the point of view of the jurisprudence of the Consiglio di Stato and the Corte costituzionale. Finally, it will look at the drafting process for codes in Italy, underlying the differences with systems where law reform agencies have been established.


Enrico Albanesi
Lecturer in Constitutional Law at the University of Genoa (Italy) and Associate Research Fellow at the Institute of Advanced Legal Studies (IALS), University of London. Co-leader of the IALS Law Reform Project.
Article

Time for a Code: Reform of Sentencing Law in England and Wales

Journal European Journal of Law Reform, Issue 4 2017
Keywords Law Commission, codification, consolidation, consultation, criminal procedure
Authors Harry O’Sullivan and David Ormerod
AbstractAuthor's information

    The Law Commission of England and Wales is currently working to produce a New Sentencing Code that will seek to remedy problems with one of the most heavily used and unsatisfactory areas of statutory law. It responds to the problems of complexity and inaccessibility in the current sentencing legislation, and more fundamentally in the process by which sentencing legislation is created and implemented. The aim is to introduce the new Code as a consolidation Bill in 2018 with a view to it being in force from early 2019. This article provides an overview of the problems endemic to the current law and how the Commission envisages that the new Sentencing Code will provide not only a remedy, but a lasting one.
    It is important to understand from the outset that the scope of the Commission’s work on sentencing is to reform procedure. The project and the resulting legislation will not alter the length or level of sentence imposed in any case. The penalties available to the court in relation to an offence are not within the scope of the project and will not change. The change will be in the process by which each sentence is arrived at.


Harry O’Sullivan
Harry O’Sullivan is a pupil at Goldsmith Chambers and was formerly a research assistant at the Law Commission.

David Ormerod
Professor David Ormerod QC is the Criminal Law Commissioner.
Article

The Reform and Harmonization of Commercial Laws in the East African Community

Journal European Journal of Law Reform, Issue 4 2017
Keywords law reform, harmonization of laws, commercial laws, legal transplants, East African Community
Authors Agasha Mugasha
AbstractAuthor's information

    The partner states in the East African Community (EAC) have modernized their commercial laws to claim their post-colonial identity and facilitate development. While law reform and the harmonization of laws are both methods of shaping laws, the national law reform programmes in the EAC mainly aim to ensure that the laws reflect the domestic socioeconomic circumstances, in contrast to the harmonization of national commercial laws, which focuses on the attainment of economic development. This article observes that the reformed and harmonized commercial laws in the EAC are mainly legal transplants of the principles of transnational commercial law that have been adapted to meet domestic needs and aspirations.


Agasha Mugasha
Professor of Law, University of Essex; and former Chairperson, Uganda Law Reform Commission 2011-2015.

Interview by Claire Mulder
Article

Access_open Sincere Apologies

The Importance of the Offender’s Guilt Feelings

Journal Netherlands Journal of Legal Philosophy, Issue 2 2017
Keywords Sincerity of emotions, Guilt, Feelings, Apology, Offender
Authors Margreet Luth-Morgan
AbstractAuthor's information

    This paper discusses the meaning and the importance of emotions, in particular the sincere guilt feelings of the offender. It is argued that the emotion of guilt reveals important information about the offender’s values and normative position. In the remainder of the paper, special consideration is awarded to the argument concerning ritual apologies, which might contain value even when insincere. This argument is rejected, on two grounds: 1. if the apology ritual does not aim for sincere guilt feelings, then the use of the symbol of apology is not fitting; and 2. if the apology ritual does aim for sincere guilt, then an insincere apology devalues the sincere expression.


Margreet Luth-Morgan
Margreet Luth-Morgan is universitair docent aan Erasmus School of Law, sectie Sociologie, Theorie en Methodologie, Rotterdam.
Article

Access_open Dworkin’s Rights Conception of the Rule of Law in Criminal Law

Should Criminal Law be Extensively Interpreted in Order to Protect Victims’ Rights?

Journal Netherlands Journal of Legal Philosophy, Issue 2 2017
Keywords Klaas Rozemond, Ronald M. Dworkin, Legality in criminal law, Rights conception of the rule of law, Legal certainty
Authors Briain Jansen
AbstractAuthor's information

    The extensive interpretation of criminal law to the detriment of the defendant in criminal law is often problematized in doctrinal theory. Extensive interpretation is then argued to be problematic in the light of important ideals such as democracy and legal certainty in criminal law. In the Dutch discussion of this issue, Klaas Rozemond has argued that sometimes extensive interpretation is mandated by the rule of law in order to protect the rights of victims. Rozemond grounds his argument on a reading of Dworkin’s distinction between the rule-book and the rights conception of the rule of law. In this article, I argue that Dworkin’s rights conception, properly considered, does not necessarily mandate the imposition of criminal law or its extensive interpretation in court in order to protect victims’ rights.


Briain Jansen
Briain Jansen is als promovendus rechtstheorie verbonden aan de Erasmus Universiteit Rotterdam.
Article

On China Online Dispute Resolution Mechanism

Following UNCITRAL TNODR and Alibaba Experience

Journal International Journal of Online Dispute Resolution, Issue 1 2017
Keywords Online Dispute Resolution (ODR), China, UNCITRAL TNODR, Alibaba experience
Authors Zhang Juanjuan
AbstractAuthor's information

    The booming of cross-border e-commerce has bred online dispute resolution (ODR) mechanisms, to adapt to the growth of cross-border high-volume and low-value e-commerce transactions. China is the largest B2C e-commerce market in the world. However, along with a prosperous e-commerce market, a great number of disputes have erupted. Under this circumstance, how to establish a reasonable, convenient and efficient online dispute settlement (ODS) method is significant. This paper will briefly look at various ODS channels. By comparing the existing Chinese mechanism and UNCITRAL documents, the paper intends to help provide the reader with greater understanding of the Chinese style, point out the obstacles and challenges in China with quantitative and qualitative analysis, and make some suggestions on the future direction of China ODR system.


Zhang Juanjuan
Zhang Juanjuan is a senior lecturer at the Faculty of Law and researcher at the Centre of Latin American Studies at the Southwest University of Science and Technology, China. She is also a PhD candidate at the Faculty of Law, University of Macau, Macau, China.
Article

The New World Order in Dispute Resolution

Brexit and the Trump Presidency

Journal International Journal of Online Dispute Resolution, Issue 1 2017
Keywords dispute resolution, Brexit, Donald Trump, technology, trade
Authors Ijeoma Ononogbu
AbstractAuthor's information

    The Brexit vote and Donald J Trump as the leader of the Free world in 2016 brought in a new world order. Two hugely important and unexpected events of 2016. Both have called into question the stability of established international commercial dispute resolution schemes in the United Kingdom and the United States in our tech savvy world. As the impact of both events unfolds, adaptations made to the existing dispute resolution schemes will be negotiated and the role that technology can play in the new approaches to international commercial dispute resolution will be determined. Consequently, there has been the changing face of Western politics after the Cold War, based on traditional group identity giving way to an uncertain landscape in which the political class struggle to define. The impact and disruption of technology in politics has given everyone a voice regardless of social class. Consequently, the EU under Mr Juncker and the UK Prime Minister seem to have mutual respect in their negotiations, given that the UK has made a number of notable concessions in order to move the trade discussions forward.
    Under Donald Trump presidency, the state of North America Free Trade Agreement (NAFTA) seems binary with the probing question will NAFTA survive or not. NAFTA is currently undergoing transformation, a process that incorporates Investor-State Dispute Settlement (ISDS).


Ijeoma Ononogbu
Ijeoma Ononogbu is a London-based Solicitor, International Dispute Resolution, Director, Dispute Resolver Ltd and Fellow of the Chartered Institute of Arbitrators.
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