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Article

Internet Trolling and the 2011 UK Riots

The Need for a Dualist Reform of the Constitutional, Administrative and Security Frameworks in Great Britain

Journal European Journal of Law Reform, Issue 1 2014
Keywords UK riots, tort law, criminal law, dualism, Internet trolling
Authors Jonathan Bishop
Abstract

    This article proposes the need for ‘dualism’ in the legal system, where civil and criminal offences are considered at the same time, and where both the person complaining and the person responding are on trial at the same time. Considered is how reforming the police and judiciary, such as by replacing the police with legal aid solicitors and giving many of their other powers to the National Crime Agency could improve outcomes for all. The perils of the current system, which treats the accused as criminals until proven not guilty, are critiqued, and suggestions for replacing this process with courts of law that treat complainant and respondent equally are made. The article discusses how such a system based on dualism might have operated during the August 2011 UK riots, where the situation had such a dramatic effect on how the social networking aspects, such as ‘Internet trolling’, affected it.


Jonathan Bishop
Article

Implementation of Better Regulation Measures in the Internal Security Draft Legislation

The Case of Estonia

Journal European Journal of Law Reform, Issue 1 2014
Keywords better regulation, internal security policy, impact assessment, participation, Estonia
Authors Aare Kasemets and Annika Talmar-Pere
AbstractAuthor's information

    The article analyses the implementation of better regulation measures in the internal security (IS) strategies, draft legislation and administrative routines of the Estonian Ministry of the Interior. The article includes the results of five substudies: (a) the research problem emerged from the studies of the explanatory memoranda of draft laws 2004-2009 according to which the Ministry has some deficiencies in fulfilling the better regulation requirements; (b) mapping of better regulation and internal security policy concepts; (c) content analysis of Estonian IS strategy documents; (d) systematization of Estonian IS laws; and (e) sociological e-survey of officials. Theoretical framework integrates the concepts of institutional theory, discursive democracy, realistic legisprudence and the adaptive strategic management.The main conclusions drawn by the article are as follows: the analysis of the knowledge of draft legislation and the excessive amount of laws in the IS field gives evidence of a lack of systematic regulatory impact assessment (IA); the concept of better regulation is not integrated into IS policy documents (insufficient planning and budgeting of IA); and a sociological e-survey of the officials of the Ministry indicates discontent with the management of the IA of policies and draft legislation. According to institutional analysis, this shows readiness for changes in the context of risk society challenges and adaptation with budgetary contractions.


Aare Kasemets
Estonian Academy of Security Sciences. Email: aare.kasemets@sisekaitse.ee.

Annika Talmar-Pere
Estonian Academy of Security Sciences.
Article

Judicial Case Management and the Complexities of Competing Norms Occasioned by Law Reforms

The Experience in Respect of Criminal Proceedings in Botswana

Journal European Journal of Law Reform, Issue 1 2014
Keywords case management, Botswana, criminal proceedings, law reform, subpoena
Authors Rowland J.V. Cole
AbstractAuthor's information

    The Botswana judicial and legal system has undergone a wave of reforms over the past few years. These reforms include judicial case management, which was introduced to reduce unnecessary delays and backlog in the hearing of cases. The introduction of judicial case management necessitates a revision of the rules of court. While the rules of the courts principally relate to civil proceedings, criminal proceedings are principally regulated by the Criminal Procedure and Evidence Act. However, the revised rules of court contain provisions that seek to bring criminal proceedings in line with judicial case management. A number of these provisions are inconsistent with the Criminal Procedure and Evidence Act. This presents problems for the implementation of these rules as the Criminal Procedure and Evidence Act is superior to the rules in the hierarchy of laws. Consequently, the implementation of judicial case management in criminal proceedings may prove to be an arduous task, and urgent harmonisation of the competing provisions is required.


Rowland J.V. Cole
LLB (Hons) (Sierra Leone), LLM (UNISA), LLD (Stell), Senior Lecturer, Department of Law, University of Botswana.
Article

The Costs and Consequences of US Drug Prohibition for the Peoples of Developing Nations

Journal European Journal of Law Reform, Issue 1 2014
Keywords U.S. drug policy, drug prohibition, War on Drugs, human rights, U.N. Declaration on the Right to Development
Authors J. Michael Blackwell
AbstractAuthor's information

    The widespread production and use of illicit drugs is a social phenomenon carrying enormous social, economic, and political significance. The United States stands as a vocal and forceful proponent of prohibitionist drug controls in international policymaking. However, strictly enforced US prohibitionist drug controls largely fail to effectively reduce the consumption of narcotic drugs and ultimately create a significant number of negative consequences for many peoples throughout the world. The increased violence, government corruption and community sequestration that result from the war against drugs are deleterious to economic development among rural communities in drug producing countries. In response to these concerns, this article examines the purpose, effects and consequences of the prohibitive drug controls routinely employed by the United States. Special attention is paid to an oft-overlooked repercussion of prohibitive drug controls: the marginalisation of developmental human rights for peoples in drug producing countries.


J. Michael Blackwell
J.D. candidate, Indiana University Robert H. McKinney School of Law, 2013; A special thanks to family, friends and Dr. Frank Emmert for guidance and support.
Article

Sir William Dale Annual Lecture

The Law Commission and the Implementation of Law Reform

Journal European Journal of Law Reform, Issue 4 2013
Authors The Rt. Hon. Sir David Lloyd Jones
Author's information

The Rt. Hon. Sir David Lloyd Jones
Chairman of the Law Commission of England and Wales.
Article

Donors without Borders

A Comparative Study of Tax Law Frameworks for Individual Cross-Border Philanthropy

Journal European Journal of Law Reform, Issue 4 2013
Keywords comparative, philanthropy, tax, deduction, international
Authors Joseph E. Miller, Jr.
AbstractAuthor's information

    Under current United States tax law, individual gifts to foreign charities generally are not deductible from federal income tax as charitable contributions. A comparative study of analogous tax laws in Switzerland and the United Kingdom demonstrates that the Swiss approach generally reflects the same prohibition against tax deductions for individual gifts to foreign charities, while British law permits such deductibility for gifts to qualified charities in other EU member states, Norway, and Iceland.
    All three countries’ legal frameworks demonstrate that their respective notions of the ‘public interest’ significantly affect their approaches to deductibility for gifts to foreign charities. The British conception of public interest, enlarged by participation in the European Union and the nondiscrimination requirements of the EU treaties, is embodied in its more expansive deductibility rules. Swiss non-participation in the EU, by contrast, reflects a more isolationist notion of public interest and may inform its prohibition on deductions for gifts to foreign charities. The narrower Swiss approach parallels the United States’ approach, and it suggests that an American expansion of deductibility for foreign charitable gifts could be encouraged by American participation in the proposed TPP, TTIP, or other multilateral trade agreements or economic unions.


Joseph E. Miller, Jr.
Joseph E. Miller is partner at Faegre Baker Daniels.
Article

Drafting of Legislation in Compliance with Model Laws

Journal European Journal of Law Reform, Issue 4 2013
Keywords challenges, domestic legislation, model laws
Authors Lesedi Poloko
AbstractAuthor's information

    Lawmaking is an essential attribute of a state. Laws differ from one country to another, and compliance with different legal rules may create problems. Uniformity of laws is an end in itself, and its value lies in its practical benefits. Interest in the quality of legislative instruments is a major concern, especially as regards the effectiveness of the national legislation.


Lesedi Poloko
LLM in Advanced Legislative Studies (2011-2012), Institute of Advanced Legal Studies, School of Advanced Study, University of London. The author would like to thank Prof. Helen Xanthaki for her constructive comments and valuable suggestions. Any errors remain those of the author.
Article

Drafting Conventions, Templates and Legislative Precedents, and their Effects on the Drafting Process and the Drafter

Journal European Journal of Law Reform, Issue 4 2013
Keywords drafting conventions, templates, legislative precedents, drafter’s skill, necessary tools for effective communication of language of legislation
Authors Agnes Quartey Papafio
AbstractAuthor's information

    The aim of this article is to explore whether drafting conventions, templates and legislative precedents contradict or complement the drafter’s style and if they complement the drafter’s style, the various ways in which the use of these tools achieves it.


Agnes Quartey Papafio
The author received her LLM Degree from the University of London, Institute of Advanced Legal Studies in 2012. She works at the Ministry of Justice and Attorney-General’s Office in Ghana as a legislative drafter attached to the Legislative Drafting Division.
Article

The Drafter’s Role in the Drafting Process

Journal European Journal of Law Reform, Issue 3 2013
Keywords drafter, drafting process, techniques, scrutiny
Authors Mico Augustin
AbstractAuthor's information

    Every government needs legislation to cover all issues transposing obligations in the manner required by the initiator and with respect to constitutional obligations and rules that provide for the conduct of society.
    Every legislative drafter should strive to achieve a law that is people oriented. The idea is to serve by extending legislative benefits to them in the best possible manner. Drafting is not a simple transcription or translation of administrative or executive guidelines, but is the command of legislative intent. It is a mixture of vision, mission and design, which brings out a workable proposition considering the background of a problem and foreseeing the ramifications of the legislative action. Drafting always supposes precision, brevity and clarity. Drafting should be compared to a focus of technical knowledge of a special kind that put together minds to produce a unity of thought enunciated as a command.
    In order to produce quality legislation, drafters need undergraduate law training, followed by specialised postgraduate training in legislative studies, combined with hands on experience in a drafting office with an experienced senior drafter.


Mico Augustin
Legislative Drafter and Advisor of the Rwanda Parliament/Chamber of Deputies. Email: micog2009@yahoo.fr
Article

Legislative Techniques in Rwanda

Present and Future

Journal European Journal of Law Reform, Issue 3 2013
Keywords legislative drafting, law-making, drafting techniques, Rwanda, quality of legislation
Authors Helen Xanthaki
AbstractAuthor's information

    This report is the result of the collective work of 26 Rwandan civil servants from a number of ministries, who set out to offer the Ministry of Justice a report on legislative drafting in Rwanda. The work was undertaken under the umbrella of the Diploma in Legislative Drafting offered by the Institute for Legal Professional Development (ILPD) in Nyanza under the rectorship of Prof. Nick Johnson. The authors have used their experience of practising drafting in Rwanda, but have contributed to the report in their personal capacity: their views are personal and do not reflect those of the Government of Rwanda.
    My only contribution was the identification of topics, which follows the well-established structure of manuals and textbooks in drafting; the division of the report into two parts: Part 1 on the legislative process and Part 2 on drafting techniques; and the methodology of each individual entry to our report: what is current Rwandan practice, what are international standards, what is the future of Rwanda, and a short bibliography to allow the readers and users of the report to read further, if needed.
    The strength of this report lies both in the methodology used and in the content offered. The breakdown of topics, their prioritization and their sequence allow the reader to acquire a holistic view on how legislation is drafted in Rwanda, but there is nothing to prevent its use in the context of surveys on legislative drafting and legislative quality in other jurisdictions. The content offers a unique insight into the legislative efforts of a jurisdiction in transition from civil to common law: both styles are assessed without prejudice, thus offering a unique fertile ground for critical assessment and practical impact analysis.
    June 2013


Helen Xanthaki
Senior Lecturer and Academic Director, Centre for Legislative Studies, Institute of Advanced Legal Studies, School of Advanced Study, University of London, Lawyer (Athens Bar).
Article

Treaties X Human Rights Treaties

A Critical Analysis of the Dual Stance on Treaties in the Brazilian Legal System

Journal European Journal of Law Reform, Issue 2 2013
Keywords human rights, international treaties, hierarchy of the treaties
Authors Gustavo Ferreira Santos
AbstractAuthor's information

    The Constitution of the Federative Republic of Brazil provides two procedures for incorporating treaties into domestic law. Human rights treaties must be approved by a special quorum: it is necessary that of three-fifths of the members of each legislative house vote in favour, with two rounds in each chamber. This proceeding is similar to a constitutional amendment. Treaties on other subjects need only the approval of the majority. This system has been in place since 2004. The Brazilian Supreme Court decided that human rights treaties incorporated after 2004 have the same hierarchical level of constitutional provisions but human rights treaties enacted before that have the same hierarchical position of ordinary statutory laws. This system needs to be reformed in order to allow an easier integration with international law. All human rights treaties should have the same position as constitutional provisions.


Gustavo Ferreira Santos
Professor of Constitutional Law at the Federal University of Pernambuco and the Catholic University of Pernambuco. Holder of a scholarship awarded by CNPq (Brazilian National Council for Scientific and Technological Development for Research Productivity).
Article

The Controversy Surrounding Article 9 of the Law That Defines How Brazilian Laws Are Applied

The Difficult Path to Reform of Private International Law Legislation in Brazil

Journal European Journal of Law Reform, Issue 2 2013
Keywords willingness, connecting element, controversy, Brazil
Authors Paul Hugo Weberbauer
AbstractAuthor's information

    This study aims to demonstrate that the legislative reform of Private International Law is one of the most complex subjects to be understood in terms of the Law in Brazil. With this objective, the point of reference of this study will be the controversy, which involves willingness as a connecting element, and is also known as the controversy around Article 9 of LINDB. By analyzing willingness as a connecting element within Brazilian legislation, a general panorama of the aforementioned Law is developed, as well as the debate of a doctrine nature about willingness as a connecting element and its insertion in the legal system in effect in Brazil. Finally, the difficulties encountered considering Brazil’s position towards international treaties and conventions, as well as the many attempts to reform Private International Law legislation will be analyzed.


Paul Hugo Weberbauer
Ph.D. in Law and Associate Professor of Recife Law School, Legal Sciences Centre at the Federal University of Pernambuco. Research Group: Regional integration, globalisation and International Law. E-mail: phwberbauer@hotmail.com.
Article

Continuous Mixed Forestry and the Citizens Forest Model

Journal European Journal of Law Reform, Issue 1 2013
Keywords continuous mixed forestry in Europe, citizen forest society, forest law reform, climate change, social forest ethics
Authors J.W. Simon and W. Bode
AbstractAuthor's information

    Climate change, air pollution and especially short-rotation forestry are the main causes for increasing detrimental effects on forests. Therefore, it is urgently necessary to find effective counteractions to this damage so that forests will become resistant, grow sustainably and are more economically effective and thus contribute optimally to the common welfare for all citizens. ‘Continuous mixed forestry’, in contrast to the normally used short-rotation or age-classed-forestry, is one suitable model to counteract climate change and air pollution in this way on both the local and national level. It is forestry without clear-cuts, biocides and with soft logging by continuous thinning and natural regeneration.The necessary change to this sustainable cultivation model is generally possible and necessary all over Europe and in other areas of the world. A very good chance for this type of forestry is available now within the framework of selling state-owned forests to private investors. This selling is planned by governments in some countries like the Great Britain1xThe Guardian, 22 December 2010, For sale: all of our forests. Not some of them, nor most of them – the whole lot, 11:55 GMT; Frankfurter Allgemeine Zeitung (2011), In love of the forest (Aus Liebe zum Forst), 4 February, No. 29, p. 5. But the British Government has apparently changed its view, see: The Guardian, 17 February 2011, Timber! Cameron in U-turn over forests sell-off, p. 1. and has been partly realised on a large scale in Germany.2xE.g. Lower House of the German Parliament (2009), answer of the Federal Government to the small question … Privatisation of forests by the Federal Institute of Real Estate Tasks, 16. Election period, Drucks. 16/14115, 30 September 2009. This article proposes selling the state-owned forests to a central, private national heritage foundation as a first step instead of transferring them with their traditional, mismanaged short rotation or age-classed forestry to private investors who would continue the state mismanagement. The task of the foundation would be to organize the ‘citizen forest society’ as a social-ethics–based society that is privately owned by citizens and the foundation. This would generate ecological advantages for the forest and moreover long-lasting profits for citizens, because the foundation would establish other organizations where the citizens become responsible owners of ‘their’ forest without any governmental or third-party influence.This proposal describes a solution to the demands of social-oriented ethics, which are primarily focused on the cooperation of responsible persons, represented by the private ownership of the forests, and directed by a responsible foundation.

Noten

  • 1 The Guardian, 22 December 2010, For sale: all of our forests. Not some of them, nor most of them – the whole lot, 11:55 GMT; Frankfurter Allgemeine Zeitung (2011), In love of the forest (Aus Liebe zum Forst), 4 February, No. 29, p. 5. But the British Government has apparently changed its view, see: The Guardian, 17 February 2011, Timber! Cameron in U-turn over forests sell-off, p. 1.

  • 2 E.g. Lower House of the German Parliament (2009), answer of the Federal Government to the small question … Privatisation of forests by the Federal Institute of Real Estate Tasks, 16. Election period, Drucks. 16/14115, 30 September 2009.


J.W. Simon
University of London, Institute for Advanced Legal Studies/Centre for Ethics and Law in the Life Sciences, Medical University Hannover.

W. Bode
Leit.Min.R., Ministerium für Umwelt und Verbraucherschutz/Saarland, 66121 Saarbrücken, Germany.
Article

Responsive Law Reform: A Case Study in Privacy and the Media

Journal European Journal of Law Reform, Issue 1 2013
Keywords law reform, regulatory theory, privacy, free speech, media
Authors Megan Richardson
AbstractAuthor's information

    This article develops a regulatory theory of law reform for common law jurisdictions drawing on a model of responsive regulation and applies it to a case study in Privacy and the Media with particular reference to law reform initiatives in Australia, New Zealand and the UK.


Megan Richardson
Professor of Law and Co-Director Centre for Media & Communications Law, Melbourne Law School, The University of Melbourne, former member of an International Advisory Panel for the New South Wales Law Reform Commission reference on invasion of privacy. This article was substantially written at the Institute for Advanced Legal Studies, where I had the privilege of being a Research Fellow in September–December 2012. I am grateful to the Institute for allowing me to spend three months in this excellent facility and also to my home institution, The Melbourne Law School, for supporting my research period abroad. The ideas in this article were presented at seminars at the Institute and at the Dickson Poon School of Law, King’s College London. I am grateful to those who attended for their helpful comments and especially to Tanya Aplin, Lyria Bennett Moses, Desmond Browne QC, Stewart Dresner, James Michael and Jan Oster. Thanks also to my colleagues Andrew Kenyon and Jason Bosland for additional helpful insights.
Article

Aspects of Italian Civil Law in the Recent Developments Regarding Money Laundering Regulations

Journal European Journal of Law Reform, Issue 1 2013
Keywords money laundering, preventive approach, traceability of payments
Authors Alessia Valongo
AbstractAuthor's information

    Original results have been achieved on the issue of money laundering through Italian regulations,1xG.M. Flick, ‘Riciclaggio’, in Enc. giur. Treccani, XXVII, Roma, 1991, p. 1; L. Magistro, Riciclaggio di capitali illeciti, Milano, 1991, p. 3; G. Amato, Il riciclaggio del denaro ‘sporco’, Roma, 1993, p. 17; L. Ferrajoli, La normativa antiriciclaggio, Milano, 1994, p. 3; E. Cassese, Il controllo pubblico del riciclaggio finanziario, Milano, 1999, p. 44; A. Di Amato, ‘Contratto e reato, Profili civilistici’, in P. Perlingieri (ed.), Tratt. dir. civ. Cons. Naz. Notariato, Napoli, 2003, p. 228; S. Faiella, Riciclaggio e crimine organizzato transnazionale, Milano, 2009, p. 11; R. Razzante, Il riciclaggio nella giurisprudenza, Milano, 2011, p. 43. mostly following the request of the European Community. In particular, the Decree dated 21 November 2007 n. 231, implementing two European directives (n. 2005/60/EC and n. 2006/70/EC), is the main framework, which coordinates the laws that have been passed in recent years.2xIt also has been amended by the so called “Save Italy Decree” (Decree dated 6 December 2011 n. 201, inside the Monti’s manoeuvre), which lays down urgent measures for growth and consolidation of public finances. My research is focused on the impact of the new regulations on the field of civil law, especially on contracts and obligations. The core of the paper is the involvement of the legal professionals and, in particular, of the lawyers, to the fight against money laundering. The topic also involves some problems about the protection of individual rights, such as right of transparency in the market, right to know economic and financial information, right to defense and to a fair trial, right to secrecy.

Noten

  • 1 G.M. Flick, ‘Riciclaggio’, in Enc. giur. Treccani, XXVII, Roma, 1991, p. 1; L. Magistro, Riciclaggio di capitali illeciti, Milano, 1991, p. 3; G. Amato, Il riciclaggio del denaro ‘sporco’, Roma, 1993, p. 17; L. Ferrajoli, La normativa antiriciclaggio, Milano, 1994, p. 3; E. Cassese, Il controllo pubblico del riciclaggio finanziario, Milano, 1999, p. 44; A. Di Amato, ‘Contratto e reato, Profili civilistici’, in P. Perlingieri (ed.), Tratt. dir. civ. Cons. Naz. Notariato, Napoli, 2003, p. 228; S. Faiella, Riciclaggio e crimine organizzato transnazionale, Milano, 2009, p. 11; R. Razzante, Il riciclaggio nella giurisprudenza, Milano, 2011, p. 43.

  • 2 It also has been amended by the so called “Save Italy Decree” (Decree dated 6 December 2011 n. 201, inside the Monti’s manoeuvre), which lays down urgent measures for growth and consolidation of public finances.


Alessia Valongo
Adjunct Professor, University of Perugia.
Article

The Application of Exception Clauses of the Rome Convention and the Rome I Regulation by the Dutch Courts

An Escape from Reality?

Journal European Journal of Law Reform, Issue 1 2013
Keywords Rome Convention 1980, Rome I Regulation, choice of law, exception clause, international commercial contracts
Authors Emmely de Haan
AbstractAuthor's information

    Both the Rome Convention and its successor the Rome I Regulation contain much discussed provisions on applicable law in the case of absence of a choice of law. Both instruments contain so called ‘exception clauses’ which refer to a closer connection of the contract with one state to the law of another state resulting from the general presumptions. The Netherlands is the frontrunner with a highly restrictive interpretation of the exception clauses. The applicable law to a transnational dispute might not always be the law of the competent court, although courts tend to prefer their own national law with which they are familiar. This year it has been exactly 20 years since the first revolutionary ruling on the subject by the Dutch Supreme Court, the so called Balenpers case. With the recent transition of the Convention into the Regulation, it is useful to analyse these connecting factors and review them in the context of the new Regulation. The Dutch courts have developed numerous connecting factors over the years. The article analyses Dutch case law on international contracts of carriage and international employment contracts from the implementation of the Rome Convention to date.


Emmely de Haan
The author graduated from Utrecht University in 2012 with an LL.M. degree in Dutch Private Law and is currently an LL.M. candidate at the University of Virginia in the United States, specializing in International Trade Law and Regulation and Dispute Settlement. This article is a shorter version of her master thesis, which was supervised by Professor dr. K.R.S.D. Boele-Woelki.
Article

What Virtues and Formalities Can Do for Corporate Social Responsibility and the Rule of Law in China?

仁 礼 誠 人, 人 必 治 法, 法 修 其 德, 德 治 其 國

Journal European Journal of Law Reform, Issue 4 2012
Keywords Chinese rule of law, Corporate Social Responsibility (CSR), sustainability, Confucianism, formative free speech
Authors Jin Kong
AbstractAuthor's information

    This article explores sustainability problems in China and foreign interests on the ‘rule of law’ problems there. The article undertakes an organic process improvement method (Define, Measure, Analyze, Control – ‘DMAC’) in hope to improve the west’s expectations of China and China’s own becoming of a rule of law nation. Corruption and environmental problems are of particular interest; China’s legal and political reform histories serve as our starting point; synergies between Confucian mercantile philosophy and modern corporate social responsibility principles are the undertones. The article will first Define the scope of China’s environmental, social, and economic problems; it will Measure the effects of these problems by observing the ontological and metaphysical uniqueness of the Chinese notion of ‘rule of law’ from a historical perspective; the Analysis will involve identifying synergies between Confucianism and Corporate Social Responsibility (hereinafter ‘CSR’); from these observations, this article will submit to Controling steps. Consequently, this article recognizes the need for ‘humanity’ and ‘formality’, in the Chinese sense, to aid one’s becoming of a law-biding person in China. The Chinese people will Control the laws that matter to them; those laws will evolve to cure the virtues of the people they are to govern.


Jin Kong
Jin Kong is a JD Candidate at the Robert H. McKinney School of Law. Jin also writes on the topic of sustainability at his blog, The Green Elephant (dot) US – <www.thegreenelephant.us>. The Chinese subtitle is loosely translated as follows: ‘If there is humanity and formality to aid one’s becoming a law-abiding person in China, they wil control the laws that matter to them; those laws will surely cure the virtues of its people and it is from those virtues a nation can govern.’
Article

Access to Higher Education in the EU

Evolving Case Law of the CJEU

Journal European Journal of Law Reform, Issue 4 2012
Keywords EU common market, European higher educational area, CJEU case-law on education, free movement of students, educational strategies
Authors Kari Käsper and Tanel Kerikmäe
AbstractAuthor's information

    A prerequisite for a competitive market can be achieved better through clear legal policy in European higher education. There is a time for the EU to intervene more into the area to eliminate state protectionism. The reasoning in CJEU case law gives a guidance for corrigendum of further legal basis. The students of another Member State should not deserve different treatment. EU role in the field of education should be significant to avoid state-based bureaucracy. The jurisprudence of CJEU creates a basis for the further development of the regulation, which leads to foundation for well-functioning internal market in the global world.


Kari Käsper
K. Käsper, M.A (law [Tallinn University of Technology 2012] and Law studies [International University Audentes, eq. with master of law 2005]) is a lecturer of EU law at Tallinn Law School, Tallinn University of Technology.

Tanel Kerikmäe
Tanel Kerikmäe (Ph.D [Tallinn University, Political Science and State Governance 2009], LL.Lic [Helsinki University, Law 2006], LL.M [Helsinki University, Law 1994] and Law studies [Tartu University, eq. with master of law 1992]) is a professor and head of the Jean Monnet Chair of European Law, Tallinn Law School, Tallinn University of Technology. The current article is based on K. Käsper’s thesis (supervised by Prof. Kerikmäe), defended in 2012.
Article

Structuring the Judiciary to Conduct Constitutional Review in the Netherlands

A Comparative and European Perspective

Journal European Journal of Law Reform, Issue 4 2012
Keywords centralized/decentralized constitutional review, Netherlands constitutional law, comparative law
Authors Gerhard van der Schyff
AbstractAuthor's information

    Whether a legal system decides to centralize or decentralize constitutional review by the judiciary is dependent on various factors. This article critically considers a host of these factors, ranging from the separation of powers to the desire to bring about far-reaching constitutional change and the possible impact of membership of the European Union, in studying whether in the Netherlands constitutional review should be centralized or decentralized upon its possible introduction. The conclusion is reached that although decentralization can be opted for under the current circumstances, a persuasive case for centralization can also be made and might even become stronger and inevitable depending on the course of future constitutional reform.


Gerhard van der Schyff
Gerhard van der Schyff is Senior Lecturer in Constitutional Law at Tilburg Law School, The Netherlands.
Article

Gender Equality Laws in the Post Socialist States of Central and Eastern Europe

Mainstream Fixture or Fizzer?

Journal European Journal of Law Reform, Issue 4 2012
Keywords gender equality laws, enforcement mechanisms, rule of law, post-socialist states, European Union
Authors Christine Forster and Vedna Jivan
AbstractAuthor's information

    In Central and Eastern European countries, the enactment of gender equality laws (GELs), defined as stand-alone national legislation that provide an overarching legislative response to gender discrimination as distinct from the traditional approach of incorporating gender equality provisions into existing legislation or constitutions, has been a marked regional trend since the collapse of the Soviet Union. However, rather than being driven by domestic movements for change, GELs seem primarily to have emerged due to pressure from development agencies, potential trading partners and donor organisations which predicate their assistance and business on the establishment of the ‘rule of law’ and of particular relevance in the region the desire to join the European Union (EU), which requires potential members to introduce gender equality legislation as part of the communtaire aquis. Despite the widespread enactment of GELs in the region, research suggests that the implementation of GELs has been slow, inefficient and in some cases non-existent. Reasons posited for this include a lack of judicial familiarity with new concepts contained in the legislation, the use of legislation taken from models in existing member states, lack of information disseminated about the new laws to relevant parties, weak political support and capacity weakness in states that are resource stretched. This article considers a further reason – the weakness of the enforcement and implementation mechanisms in the laws themselves and argues that despite the placement of expansive positive duties on a range of public and private actors in many of the GELs, the implementation and enforcement mechanisms of the fifteen GELs considered are weak. Consequently, despite their remarkable scope the duties created under the GELs are largely symbolic and will continue to be so unless, such legislation is amended to include mechanisms to enable the realization of those duties in practice.


Christine Forster
Christine Forster is a senior lecturer at the Faculty of Law of the University of New South Wales, Australia.

Vedna Jivan
Vedna Jivan is Senior Lecturer, UTS Faculty of Law, Australia.
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