Search result: 181 articles

x
Year 2011 x
Article

The European Law from Grundnorm towards the Cathedral

Constitutional Features of a Complex Legal System

Journal European Journal of Law Reform, Issue 1 2011
Keywords economic analysis of legal remedies, state liability for breach of the EU law, judicial dialogue in the EU, self-referring legal rules, efficiency of the EU law
Authors Mariusz Jerzy Golecki
AbstractAuthor's information

    Many hopes of the adherents of constitutional reform in the EU remained in vain after the enactment of the Lisbon Treaty. Meanwhile the creeping constitutionalisation of the EU law leads to the empowerment of the UE quasi constitutional court – the Court of Justice of the European Union. This kind of constitutionalism is albeit firmly grounded on judicial cross-border cooperation. The main purpose of this paper is to address the question of whether and how the concept of judicial control based on transactional framework developed in law and economics could effectively supplement if not substitute the notion of constitutional democratic legitimacy. In order to demonstrate that it is logically possible and institutionally feasible to build a system based on circularity, self-referentiality and privatization of legal remedies, the paper contains the economic analysis of the recent development of the EU law which at least partially takes this direction.


Mariusz Jerzy Golecki
PhD, LL.M. Cantab. Associate Professor, University of Łódź (Poland).
Article

Judicial Activism

Usurpation of Parliament’s and Executive’s Legislative Functions, or a Quest for Justice and Social Transformation

Journal European Journal of Law Reform, Issue 2 2011
Keywords judicial activism, separation of powers, constitutional interpretation
Authors Reyneck Matemba
AbstractAuthor's information

    This article examines the concept of judicial activism in relation to the courts’ role of interpreting legislation, particularly focusing on the courts’ function of interpreting the Constitution. It specifically examines modes of constitutional interpretation obtaining in RSA and Nigeria, by focusing on selected judicial decisions by superior courts in the two countries. It also examines constitutional provisions governing the interpretation of the Constitution (Bill of Rights) and legislation as provided for in the Constitution of RSA and that of Nigeria. It also makes a comparative examination of judicial approaches to the interpretation of socio-economic rights enshrined in the Constitution of each of the two countries, specifically focusing on the rights to health and housing.The article observes that the concept of judicial activism is a necessary tool for attaining justice and achieving social transformation.


Reyneck Matemba
Reyneck Thokozani Matemba is a member of the Malawi Law Society and the Commonwealth Association of Legislative Counsel (CALC) and works as an Assistant Chief Legislative Counsel for the Ministry of Justice, Malawi.
Article

Sir William Dale Annual Memorial Lecture

Gender-Neutral Law Drafting: The Challenge of Translating Policy into Legislation

Journal European Journal of Law Reform, Issue 2 2011
Keywords legislation, policy, gender-neutral law drafting, New Zealand
Authors Margaret Wilson
AbstractAuthor's information

    For legislation to be inclusive it must be expressed in a way that is gender-neutral. Gender-neutral drafting became a policy issue in New Zealand in the 1980s and since that time gender-neutral drafting has become an accepted drafting practice. The issue has been to ensure previous legislation is gender-neutral. The Legislation Bill that is before the Parliament provides for legislation already enacted to be reviewed to remove gendered language. The main lesson to be learnt from the New Zealand experience is the need for political and bureaucratic commitment to gender-neutral drafting.


Margaret Wilson
Margaret Wilson is Professor of Law and Public Policy at the University of Waikato, New Zealand.

Constantin Stefanou
Dr. Constantin Stefanou (BA, MA, MPhil, PhD) is the LLM Director – ALS at the Institute of Advanced Legal Studies (School of Advanced Study, University of London).
Article

Instructions to Draft Legislation

A Study on the Legislative Drafting Process in Malaysia

Journal European Journal of Law Reform, Issue 2 2011
Keywords legislative drafting process, role of instructing officer and drafter
Authors Rozmizan Muhamad
AbstractAuthor's information

    The importance of legislation is beyond any dispute. Legislation governed us perhaps even before our birth, certainly during our life and until our death. Even after our death there is still the Estate Duty Act to worry about, although of course the burden passes on to our executors or administrators. But day after day, many more new laws have been proposed and many existing laws have been revised and amended for various reasons and motives. The need for legislation has never diminished but continues to increase. Governments need legislation to govern, by which they achieve their political objectives and public policies. In other words, legislation is needed to affect changes in the law, to interfere with vested rights and interests, and to impose taxes, duties, excise and imposts. Such need originates from one or more of a great many sources such as a commission of inquiry, politicians, a particular pressure group or the public as a whole and also a reaction to social situations which seemingly develop independently or deliberately


Rozmizan Muhamad
Rozmizan Muhamad is a drafter at the Malaysian Attorney-General’s office.
Article

Judicial Review

An Essential Tool for Curbing the Excesses and Abuse of Executive Action in Sierra Leone

Journal European Journal of Law Reform, Issue 2 2011
Keywords delegated legislation, administrative law, judicial review
Authors Kadija Kabba
AbstractAuthor's information

    This essay examines judicial review in executive/administrative action as an essential tool for curbing the excesses and abuse of delegated legislative powers in Sierra Leone based on the valid assumption that there is a system of administrative law due to a developed system of judicial review in Sierra Leone. To examine and establish the facts, focus is laid on judicial review of administrative/ executive action and not on judicial review of primary legislation.This article first and foremost tried to establish that, the practice of delegated legislation from which judicial review ensues is a necessity in any given democratic society.This piece of work in trying to establish its facts, put forward arguments by scholars and writers in support and against the use of judicial review as an essential tool to curb the abuse and excesses of executive’s action. This is juxtaposed in conjunction with cases laws from Sierra Leone dealing with judicial review.The irrefutable fact this article tried to illustrate is that judicial review is important in any society in curtailing the excesses and abuse of executive actions.


Kadija Kabba
Kadija Kabba is a Legal Officer and Legislative Drafter at the Central Bank of Sierra Leone. She holds an LLM form the Universitty of London, A MPhil from the University of Tromsee, Norway, a LLB and BA Degrees from the University of Sierra Leone. She is also a qualified barrister and Socilitor of the High Court of Sierra Leone.
Article

Legislative Drafting and Human Rights

The Example of the European Arrest Warrant

Journal European Journal of Law Reform, Issue 2 2011
Keywords rule of law, drafting EU legislation, Framework Decision 2002/584 on the European Arrest Warrant
Authors William Robinson
AbstractAuthor's information

    This article considers some of the requirements for good laws, focusing in particular on the drafters’ perspective. It looks first in general terms at the requirements forming part of the rule of law that laws be accessible and predictable. It then examines the drafting of laws in the European Union: how it is done; the concern to make EU laws accessible; and specific features of EU legislative drafting rules and practices, illustrated by reference to Framework Decision 2002/584.


William Robinson
Sir William Dale Visiting Fellow, Institute of Advanced Legal Studies, London.

    Even amongst those clauses frequently found in commercial contracts in general and sales contracts in particular, agreed sums enjoy exceptional popularity. Now, when I say ‘agreed sum’, of course I do not talk about the purchase price but about clauses that in traditional terminology are called penalty or liquidated damages clauses.


Pascal Hachem
Dr. iur. (University of Basel, Switzerland), ACIArb, Senior Researcher in the Global Sales Law Project at the Chair of Private Law held by Prof. Dr. Ingeborg Schwenzer, LL.M. and Lecturer of Comparative Private Law and International Trade Law at the University of Basel, Switzerland.

    L’arbitrage occupe une place centrale dans la régulation des échanges internationaux. En effet, en l’absence d’une juridiction internationale de droit privé, il est devenu «la seule méthode réaliste de résolution des litiges commerciaux internationaux».L’essor de l’arbitrage s’accompagne ainsi de l’adoption de Conventions multilatérales, d’autres textes juridiques et règlements d’arbitrage, modernes pour la plupart, ayant pour objectif de faire face aux situations nouvelles qu’engendre la mondialisation de l’économie. Cet essor est davantage ressenti plus dans le domaine des investissements notamment avec le développement des Traités Bilatéraux d’Investissement.


Sylvie Bebohi
Doctorante en droit Privé - Université de Picardie Jules Verne (Amiens- France).

    Le droit uniforme de l’OHADA réglemente quelques contrats spéciaux des affaires: le bail; le courtage; la commission; le mandat de l’agent commercial; la société commerciale; le transport des marchandises par route; la vente commerciale. Hormis la société commerciale, seule la vente entre commerçants est longuement régie par 87 Arts. de l’acte uniforme relatif au droit commercial général (AUDCG) dans tous les détails de sa formation, son exécution, son dénouement. L’intérêt du législateur OHADA pour ce contrat se comprend pour, soit plusieurs raisons.


Joseph Issa Sayegh
Docteur en droit, ancien Professeur aux Universités de Dakar (Sénégal), de Nice (France) et d’Abidjan (Cote d’Ivoire).

    This paper will make the case for more widespread African adherence to the United Nations Convention on the International Sale of Goods, 1980 (“CISG”) on the ground that it represents an effort through the United Nations system to make available harmonised rules on the international sale of goods which are intended to have an international and universal reach. The paper begins with an introduction which briefly examines the origins of CISG and proceeds to discuss the relevance of CISG to Africa. It ends with a recommendation to African States to accede to, or ratify, the Convention.


S.K. Date-Bah
LL.B (Ghana), LL.M (Yale), Ph.D (London School of Economics), Professor of law. Justice at the Supreme Court of Ghana.

    Africa is a major source of commodities and other natural resources. However, such wealth has not yet led to economic development or to increased living standards. On the contrary, Africa remains underdeveloped while other regions of the world enjoy significant, if not spectacular, success. Between 1970 and 2008, the pro-capita income of African energy-exporting countries has increased 72%, while that of African Least Developed Countries has decreased 13%, and that of remaining African countries has increased 31%; in the same period of time, the increase in pro-capita income for South Asian and East Asian low income countries has been, respectively, 236% and 223%, and that of China a staggering 1,531%.


Luca G. Castellani
Legal officer with the UNCITRAL Secretariat, Vienna, Austria. The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations.

    ICC arbitration was conceived by and for international business. When the International Chamber of Commerce was created in 1920 to combat insularity and protectionism in world trade, dispute resolution was seen as an indispensable part of the services it was to provide. Recognizing that contracts, especially between partners of different cultures, are inevitably exposed to strain, misunderstanding and even, regrettably, sometimes flagrant abuse, the ICC considered it crucial to provide the business world with an appropriate means of overcoming commercial conflict. In the words of Etienne Clementel, the French Minister of Commerce at the time and one of the founders of the ICC, “freedom can truly flourish only if it finds within itself the means to achieve its own moderation”. ICC arbitration was initially developed as a means of self regulation in international commerce.


Jason Fry
LL.B., BCL (Oxon), FCIArb, Secretary General International Court of Arbitration of the International Chamber of Commerce.

    International commercial law as a body of law that governs international sale transactions has a bright future in the East African Community (EAC) region. As long as international trade is growing so does the relevancy of international commercial law. As a Regional Economic Community, the EAC continues to facilitate trade arrangements between its Partner States to enable them to benefit from greater access to each other’s markets. Regional trade initiatives and economic integration as espoused by the EAC are no doubt integral to international commercial law through their impact on commercial transactions. In particular, the creation of an economic and monetary union is bound to advance international commercial law.This paper posits, therefore, that international commercial law has a favourable future in EAC, and indeed there are many developments that have been embarked on by the EAC to boost its relevancy. As will be illustrated in the paper, key among these developments is the holistic integration approach that has been embraced by the EAC. Commencing with a Customs Union, integration in the EAC has moved to a Common Market, is heading to a Monetary Union, and is ultimately bound to crystallize into a Political Federation. The paper shows that such an ambitious integration process poses both potential opportunities and limitations on the future of international commercial law. The paper highlights what the EAC is doing to harmonise its commercial laws to attain a common investment area and an effective functioning common market. It also explores the implications of this effort on the future of international commercial law and suggests proposals on the way forward.


Stephen Agaba
Principle Legal Officer, East African Community (EAC).

    The unification or harmonisation of laws and legal systems is not a new phenomenon. Schmitthoff describes the wave of national unification of commercial laws in Europe during the nineteenth century as a method of obtaining political unity. According to Faria similar results were achieved on a wider scale by the dissemination of English legal traditions throughout common law jurisdictions. What he describes as the “ultimate goal”, however, was the unification of private law, the benefits of which had been extolled by Lord Justice Kennedy as early as 1909.


Riekie Wandrag
LL.B., LL.M. (Free State University), LL.M. (Cambridge), Associate Professor of Law, University of the Western Cape.
Article

Is Africa Ready for Electronic Commerce?

A Critical Appraisal of the Legal Framework for Ecommerce in Africa

Journal European Journal of Law Reform, Issue 3-4 2011
Authors Nnaemeka Ewelukwa
AbstractAuthor's information

    It remains a daunting but not insurmountable challenge to actualize broad-based long term economic development in Africa. Statistics indicate that the poverty level in the continent is very high and the continent’s contribution to global trade remains very low in terms of export outflows. While acknowledging the negative aspects of Africa’s development however, it is important to note that the future may yet become brighter if key steps are taken by law and policy makers in the continent to put in place laws and policies that can facilitate the development process. One of the ways in which economic development can be facilitated is to significantly boost Africa’s contribution to global trade. In this regard, it has been noted that ‘After falling by 2.5% in 2009, export volumes of African countries are expected to increase on average by 3.2% in 2010 and by 5% in 2011.


Nnaemeka Ewelukwa
Dr. iur. (Queen Mary, London), Senior Teaching Fellow, International Trade Law, School of Oriental and African Studies, University of London (SOAS).

Ousmane Bougouma
LL.M., Candidat au Doctorat.
Article

Chinese Judicial Methodologies to Determine the Validity of Arbitration Agreements

“Arbitration in Hong Kong and English Law to Apply” as an Example

Journal European Journal of Law Reform, Issue 3-4 2011
Authors Song Lianbin and Sophia Juan Yang
AbstractAuthor's information

    As Financial Times says, “it is now difficult to consider African prospects without the mention of China, which in the past decade has increased trade with the continent 10-fold – from $ 10 billion to more than $ 100 billion and has overtaken the US and the Europe as the largest trading partner in some important economies”.1x See Financial Times Special Report on Africa-China Trade, available at <http://media.ft.com/cms/de832bb2-7500-11df-aed7-00144feabdc0.pdf>. Africa has particular needs for cost-effective and time-effective mechanisms for resolving trade disputes with Chinese parties. The most preferred choice is, not surprisingly, commercial arbitration.

Noten


Song Lianbin
Song Lianbin is Professor in Law, Wuhan University, Wuhan, China.

Sophia Juan Yang
Sophia Juan Yang is Dr. iur. (University of Basel, Switzerland), LL.M. (Wuhan), former Research Assistent for Global Sales Law Project.

    Les propos qui suivent revendiquent une double impertinence. Celle de la répétition car ils reprennent des points de vue déjà exprimés par d’autres, rappelant une vérité d’évidence reconnue par beaucoup, concernant le projet d’uniformisation du droit des contrats dans l’espace OHADA.1xActes du colloque ‘Harmonisation du droit OHADA des contrats’, Ouagadougou, 15-17 novembre 2007, disponible à <www.ohada.com/doctrine/Ohadata/D-09-26>. L’impertinence de l’originalité également en essayant de présenter sous un regard nouveau l’ambition d’intégration du droit des contrats exprimée par les autorités de l’Organisation pour l’Harmonisation du Droit des Affaires en Afrique.

Noten


Mbissane Ngom
Professeur de l’Université Gaston Berger de Saint-Louis (Sénégal).

    Conflicts of jurisdiction between a state court and an arbitral tribunal occur in two different scenarios: (a) claimant X institutes a court action and the defendant subsequently commences with arbitration or requests to be referred to arbitration (as envisaged by the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards – NYC); and (b) claimant X commences arbitration and the defendant subsequently challenges in a national court. X should be able to seek a stay of the parallel litigation on the ground of the existence of a valid agreement to arbitrate the dispute, but the duty on the part of South African courts to do so is not clearly legislated, nor is it as well-understood as it deserves to be. Various interests have fallen into disharmony in this area of the law.


Christa Roodt
Doctor of Laws (University of Orange Free State), LL.M (University of South Africa), LL.B. (University of Pretoria).
Showing 121 - 140 of 181 results
1 2 3 4 5 7 9 10
You can search full text for articles by entering your search term in the search field. If you click the search button the search results will be shown on a fresh page where the search results can be narrowed down by category or year.