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Article

Transformative Welfare Reform in Consensus Democracies

Journal Politics of the Low Countries, Issue 1 2019
Keywords consensus democracy, welfare state, social investment, transformative reform, Belgium and the Netherlands
Authors Anton Hemerijck and Kees van Kersbergen
AbstractAuthor's information

    This article takes up Lijphart’s claim that consensus democracy is a ‘kinder, gentler’ form of democracy than majoritarian democracy. We zoom in on contemporary welfare state change, particularly the shift towards social investment, and argue that the kinder, gentler hypothesis remains relevant. Consensus democracies stand out in regard to the extent to which their political institutions help to overcome the politically delicate intricacies of governing for the long term. We theorize the features that can help to solve the problem of temporal commitment in democracy through processual mechanisms and illustrate these with short case studies of the contrasting welfare state reform experiences in the Netherlands and Belgium.


Anton Hemerijck
Anton Hemerijck is Professor of Political Science and Sociology at the European University Institute (EUI) in Florence, Italy.

Kees van Kersbergen
Kees van Kersbergen is Professor of Comparative Politics at the Department of Political Science of Aarhus University, Denmark.
Article

Access_open Rereading Fisher & Ury

Identifying the Advantages of Mediation in the Specific Setting of a Competition Law Dispute

Journal Corporate Mediation Journal, Issue 1-2 2019
Keywords modern mediation, principled negotiations, competition law
Authors Pierre Kirch
AbstractAuthor's information

    To analyse the advantages of mediation as a means of resolution of private competition disputes, it is helpful to look backwards to the underlying principles upon which modern mediation has been built. The principles that now guide leading mediation institutions in Europe are still based on the foundation that was laid by the methods of principles negotiations, written down in Getting to Yes: Negotiating Agreement without Giving In, by Fisher and Ury.


Pierre Kirch
Avocat à la Cour (Paris & Brussels Bars), Partner, Paul Hastings (Europe) LLP, mediator certified by the Centre de Médiation et d’Arbitrage de Paris (CMAP, Paris) and the Center for Effective Dispute Resolution (CEDR, London).
Pending cases

Case C-274/18, Gender discrimination, Fixed-term work

Minoo Schuch-Ghannadan – v – Medizinische Universität Wien, reference lodged by the Arbeits- und Sozialgericht Wien (Austria) on 23 April 2018

Journal European Employment Law Cases, Issue 4 2018

    According to German law, every employee is entitled to paid annual leave. The amount of pay is generally calculated based on the current salary (known as the “principle of loss of pay”) but a reduction of working hours during the year does not lead to a reduction of entitlement to holiday pay for previously acquired holiday entitlements. If the entitlement was already acquired before the reduction of working time (which can happen because in Germany holiday entitlement is acquired at the beginning of the calendar year), pay during leave will be based on the salary agreed between the employer and employee when the holiday entitlement was acquired and thus, based on the ‘old’ salary.


Nina Stephan
Nina-Stephan is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH in Essen, www.luther-lawfirm.com.

Paul Schreiner
Paul Schreiner is an attorney-at-law and partner with Luther Rechtsanwaltsgesellschaft mbH in Essen, www.luther-lawfirm.com.

Zef Even

    A provision of Dutch law, according to which employees who lose their jobs upon retirement are excluded from the right to statutory severance compensation, is not in breach of the Framework Directive.


Peter C. Vas Nunes
Peter Vas Nunes is Of Counsel at BarentsKrans N.V., The Hague, the Netherlands.
Pending cases

Case C-429/18, Fixed-term work

Berta Fernández Álvarez, BMM, TGV, Natalia Fernández Olmos, María Claudia Téllez Barragán –‍ v – Consejería de Sanidad de la Comunidad de Madrid, reference lodged by the Juzgado de lo Contencioso-Administrativo de Madrid (Spain) on 28 June 2018

Journal European Employment Law Cases, Issue 4 2018

    The Danish Supreme Court has held there was no discrimination against four part-time teachers at a university in that they did not receive pension contributions. Their positions could not be compared to those of full-time teachers, who were entitled to pension contributions. However, it did constitute a violation of the Danish rules on fixed-term work that the teachers had, for a number of years, been employed on several fixed-term contracts, as they had, in effect, been continuously employed in the same position. Consequently, the teachers were awarded compensation.


Christian K. Clasen
Christian K. Clasen is a partner at Norrbom Vinding, Copenhagen.
Pending cases

Case C-72/18, Fixed-term work

Daniel Ustariz Aróstegui – v – Consejería de Educación del Gobierno de Navarra, reference lodged by the Juzgado de lo Contencioso-Administrativo No 1 de Pamplona (Spain) on 5 February 2018

Journal European Employment Law Cases, Issue 4 2018
Rulings

ECJ 21 November 2018, case C-245/17 (Viejobueno Ibáñez and De la Vara González), Fixed-term work, Paid leave

Pedro Viejobueno Ibáñez, Emilia de la Vara González – v – Consejería de Educación de Castilla-La Mancha, Spanish case

Journal European Employment Law Cases, Issue 4 2018
Keywords Fixed-term work, Paid leave
Abstract

    The sole fact that fixed-term employment relationships terminate, whereas permanent relationships do not, does not constitute discrimination. Nevertheless, fixed-term teachers should receive an allowance in lieu of untaken leave.

Rulings

ECJ 25 October 2018, case C-331/17 (Sciotto), Fixed-term work

Martina Sciotto – v – Fondazione Teatro dell’Opera di Roma, Italian case

Journal European Employment Law Cases, Issue 4 2018
Keywords Fixed-term work
Abstract

    The Framework Agreement to protect the misuse of successive fixed-term employment contracts or relationships precludes legislation, which disapplies rules aimed against such misuse, when there is no other effective penalty.

Pending cases

Case C-44/18, Fixed-term work

Cobra Servicios Auxiliares, S.A. – v – FOGASA, Jesus Valiño Lopez en Incatema, S.L., reference lodged by the Tribunal Superior de Justicia de Galicia (Spain) on 24 January 2018

Journal European Employment Law Cases, Issue 4 2018

    The Finnish Supreme Court has held that an employer discriminated against an employee by not renewing his employment at the end of a fixed-term contract because he was overweight.


Janne Nurminen
Janne Nurminen is a Senior Associate with Roschier, Attorneys Ltd in Helsinki, www.roschier.com.

    For workers without a fixed workplace, travelling time between their place of residence and the first customer and travelling time between the last customer and the place of residence constitutes working time.


Dr. Pieter Pecinovsky
Dr. Pieter Pecinovsky is Of Counsel at Van Olmen & Wynant in Brussels www.vow.be, Assistant at Leuven University and Invited Professor at Université Catholique de Louvain.

    In a recent decision, the Labour Court awarded an employee € 7,500 for working in excess of 48 hours a week, contrary to working time legislation. The complainant allegedly regularly checked and responded to emails outside of business hours, occasionally after midnight. The Labour Court reiterated it is the employer’s responsibility to ensure that employees are not permitted to work beyond the statutory maximum period and that if an employer is aware that an employee is working excessive hours, must take steps to curtail this.


Lucy O’Neill
Lucy O’Neill is an attorney-at-law at Mason Hayes & Curran in Dublin, Ireland.
Pending cases

Case C-103/18, Fixed-term work

Domingo Sánchez Ruiz – v – Comunidad de Madrid (Servicio Madrileño de Salud), reference lodged by the Juzgado de lo Contencioso-Administrativo No 8 de Madrid (Spain) on 13 February 2018

Journal European Employment Law Cases, Issue 4 2018
Pending cases

Case C-293/18, Fixed-term work

Sindicato Nacional de CCOO de Galicia – v – Unión General de Trabajadores de Galicia (UGT), Universidad de Santiago de Compostela, Confederación Intersindical Gallega, reference lodged by the Tribunal Superior de Justicia de Galicia (Spain) on 26 April 2018

Journal European Employment Law Cases, Issue 4 2018
Part I Courts and ODR

Access to Justice and Innovative Court Solutions for Litigants-in-Person

The Singapore Experience

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords access to justice, innovative court solutions, ODR, e-Negotiation, tribunal
Authors Ow Yong Tuck Leong
AbstractAuthor's information

    This article highlights the Singapore judiciary’s experience in introducing an online filing and case management system with Online Dispute Resolution (ODR) for small value disputes to improve access to justice. This system, called the Community Justice & Tribunals System (CJTS), is a fully integrated justice solution, allowing parties to settle their disputes and obtain a court order online. The article sets out the issues and challenges encountered in developing CJTS, the innovative solutions implemented and CJTS’ positive impact on litigants-in-person.


Ow Yong Tuck Leong
District Judge Ow Yong Tuck Leong is a judicial officer in the Community Justice and Tribunals Division of the State Courts of Singapore. He is the Executive Sponsor of the CJTS. Prior to joining the State Courts, Ow Yong had served in different positions as a Senior Assistant Registrar, Registry of Companies and Businesses; State Counsel, Attorney-General’s Chambers; and Deputy Director (Legal, Enforcement & International Affairs) of the Competition Commission of Singapore.
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.
Article

A Proposal for the International Law Commission to Study Universal Criminal Jurisdiction

Journal African Journal of International Criminal Justice, Issue 1-2 2018
Keywords Universal Criminal Jurisdiction, International Criminal Law
Authors Mr. Charles Chernor Jalloh
AbstractAuthor's information

    The principle of universal jurisdiction is a unique ground of jurisdiction in international law that may permit a State to exercise national jurisdiction over certain crimes in the interest of the international community. This means that a State may exercise jurisdiction regarding a crime committed by a foreign national against another foreign national outside its territory. Such jurisdiction differs markedly from the traditional bases of jurisdiction under international law, which typically require some type of territorial, nationality or other connection between the State exercising the jurisdiction and the conduct at issue. Due to the definitional and other ambiguities surrounding the universality principle, which has in its past application strained and today continues to strain relations among States at the bilateral, regional and international levels, this paper successfully made the case for the inclusion of “Universal Criminal Jurisdiction” as a topic in the long-term programme of work of the International Law Commission during its Seventieth Session (2018). It was submitted that taking up a study of this timely topic, which has been debated by the Sixth Committee of the UN General Assembly since 2010, could enhance clarity for States and thereby contribute to the rule of law in international affairs. It will also serve to continue the ILC’s seminal contributions to the codification and progressive development of international criminal law.


Mr. Charles Chernor Jalloh
Mr. Charles Chernor Jalloh is Professor of Law, Florida International University and Member and Chair of Drafting Committee, 70th Session, International Law Commission.
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