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Article

The Minor in Divorce-Related Judicial Proceedings in the Netherlands and Germany

Rights to a Special Representative and to Be Heard in Person

Journal European Journal of Law Reform, Issue 2 2015
Keywords procedural (in)capacity, conflict of interests, the right to a special representative, the right to be heard in person
Authors Maximilian Strutz PhD and Evelien Verhagen PhD
AbstractAuthor's information

    This contribution examines the extent to which a minor is involved in divorce-related judicial proceedings in the Netherlands and Germany. The discussion will concentrate exclusively on the rights of the minor to a special representative and to be heard in person. The purpose of this contribution is to identify the uncertainties and bottlenecks that arise in both legal systems.


Maximilian Strutz PhD
Maximilian Strutz is currently Rechtsreferendar at the District Court of Cologne (Germany), as well as a PhD student at the University of Cologne.

Evelien Verhagen PhD
Evelien Verhagen is a PhD student at Utrecht University (The Netherlands). She participates in the Utrecht Centre for European Research info Family Law (UCERF).
Article

Access_open Kelsen, Secular Religion, and the Problem of Transcendence

Journal Netherlands Journal of Legal Philosophy, Issue 2 2015
Keywords Kelsen, secular religion, Voegelin, Schmitt, transcendence
Authors professor Bert van Roermund
AbstractAuthor's information

    An alleged ‘return to religion’ in contemporary western politics (and science) prompted the Trustees of the Hans Kelsen Institut to posthumously publish Kelsen’s critique of the concept of ‘secular religion’ advanced by his early student Eric Voegelin. This paper identifies, firstly, what concept of transcendence is targeted by Kelsen, and argues that his analysis leaves scope for other conceptions. It does so in two steps: it summarizes the arguments against ‘secular religion’ (section 2) and it gives an account of the differences between Voegelin’s and Schmitt’s conception of transcendence – both under attack from Kelsen (section 3). It then submits an alternative account of the relationship between politics and religion in Modernity, building on the concept of a ‘civil religion’ as found in Rousseau’s Social Contract. Giving a Rousseauist slant to Claude Lefort’s analysis of political theology (section 4) it concludes that a thin concept of transcendence is part and parcel of every, in particular a democratic, account of politics. It should be a stronghold against any resurgence of religion that feeds on hypostatized transcendence. In closing (section 5), it is argued that two key concepts in Kelsen’s legal philosophy may well be understood as paradigms of thin transcendence, namely ‘the people’ and ‘the Grundnorm’.


professor Bert van Roermund
Bert van Roermund is professor (em.) of philosophy at Tilburg Law School and international correspondent of the Hans Kelsen Institute in Vienna.

Olga S. Stelmakh
Parliament of Ukraine / DRSH Group Int., Ukraine

Anita Rinner
University of Graz, Austria
Article

Exploring Barriers to Constructing Locally Based Peacebuilding Theory

The Case of Northern Ireland

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2015
Keywords peacebuilding, phronesis, civil society, practice–theory, Northern Ireland
Authors Emily Stanton PhD and Grainne Kelly
AbstractAuthor's information

    This article seeks to explore why, after significant financial investment and a history of nearly 50 years of civil society activity, there is a paucity of explicitly codified and consolidated indigenous theory that has emerged from peacebuilding practice in Northern Ireland. Methodologically, this apparent contradiction is explored, utilizing both empirical research (interviews with key peacebuilders) and the wide practitioner experience of the authors. It is argued that two complex dynamics have contributed to the subordination of local practice-based knowledge, namely, the professionalization of peace and the dominance of research over practice within academia. These two dynamics have played a mutually exacerbatory and significant role in creating barriers to constructing local peacebuilding theory. Phronesis, an Aristotelian term for practical knowledge, is explored to discover what insights it may contribute to both research, theory and practice in the field of peacebuilding, followed by examples of institutions demonstrating its value for practice–theory reflexivity. The article concludes with a call for peace research that validates and values practical knowledge. By doing so, the authors argue, new avenues for collaborative partnership between practitioners and academics can open up, which may play a constructive role in bridging practice–theory divides and, most importantly, contribute to building more effective and sustainable peacebuilding processes in Northern Ireland and in other conflict contexts.


Emily Stanton PhD
Emily Stanton is PhD candidate in the School of Politics, Faculty of Social Science, Ulster University, Northern Ireland. Email: Stanton-E@email.ulster.ac.uk.

Grainne Kelly
Grainne Kelly is Lecturer of Peace and Conflict Studies at the International Conflict Research Institute (INCORE), Ulster University, Northern Ireland. Email: g.kelly@ulster.ac.uk.
Article

Reframing War to Make Peace in Northern Ireland

IRA Internal Consensus-Building for Peace and Disarmament

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2015
Keywords Northern Ireland, intra-group negotiations, disarmament, political transition, IRA
Authors Dr. Benedetta Berti and Ariel Heifetz Knobel
AbstractAuthor's information

    In exploring alternatives to armed struggle, how do non-state armed groups embark on such complex internal discussions, and how do they reframe their worldview and strategy to persuade their militants to support such transition?
    The article tackles this question by examining the internal processes of consensus-building that brought the most prominent militant organization in Northern Ireland – the Provisional Irish Republican Army (IRA) – from violent struggle for independence to non-violent political participation in the political system it had previously fought to expel.
    The study relies on fieldwork and applied research through interviews, conducted in Northern Ireland and Ireland with key stakeholders, ranging from ex-prisoner leaders and former militants to politicians, official negotiators and civil society practitioners who work with various conflict parties on the ground. Historical literature and primary sources are also used, including Sinn Féin and IRA official documents. All primary sources are integrated with the theoretical literature on intra-group consensus-building and discursive reframing.
    The analysis underscores the importance of discursive practices to ensure frame-shift in both the understanding of the conflict (consensus mobilization) and the means chosen to wage it (action mobilization). The case of the IRA further reveals the importance of preserving continuity with an organization’s core ideological pillars as a key mechanism to minimize chances of internal strife, along with enlisting credible supporters from the ‘militant constituency’ – such as former prisoners and/or militants with deep and personal involvement in the group’s armed struggle.


Dr. Benedetta Berti
Dr. Benedetta Berti is a Kreitman postdoctoral fellow at Ben Gurion University, a research fellow at the Institute for National Security Studies (INSS), a lecturer at Tel Aviv University and the author of Armed Political Organizations. From Conflict to Integration. <https://jhupbooks.press.jhu.edu/content/armed-political-organizations>.

Ariel Heifetz Knobel
Ariel Heifetz Knobel is a conflict transformation practitioner, facilitating Track 2 and Track 1.5 initiatives in Israel and the Palestinian Territories, and working with Northern Irish peacemakers to bring best practices to the region. She has served as Public Diplomacy Director for five states at the Israeli Consulate to New England, and as a mediator in Boston’s district courts.
Article

Creating New Pathways to Justice Using Simple Artificial Intelligence and Online Dispute Resolution

Journal International Journal of Online Dispute Resolution, Issue 1 2015
Keywords expert system, online dispute resolution, artificial intelligence, access to justice, legal information technology
Authors Darin Thompson
AbstractAuthor's information

    Access to justice in can be improved significantly through implementation of simple artificial intelligence (AI) based expert systems deployed within a broader online dispute resolution (ODR) framework.
    Simple expert systems can bridge the ‘implementation gap’ that continues to impede the adoption of AI in the justice domain. This gap can be narrowed further through the design of multi-disciplinary expert systems that address user needs through simple, non-legalistic user interfaces.
    This article provides a non-technical conceptual description of an expert system designed to enhance access to justice for non-experts. The system’s knowledge base would be populated with expert knowledge from the justice and dispute resolution domains. A conditional logic rule-based system forms the basis of the inference engine located between the knowledge base and a questionnaire-based user interface.
    The expert system’s functions include problem diagnosis, delivery of customized information, self-help support, triage and streaming into subsequent ODR processes. Its usability is optimized through the engagement of human computer interaction (HCI) and affective computing techniques that engage the social and emotional sides of technology.
    The conceptual descriptions offered in this article draw support from empirical observations of an innovative project aimed at creating an expert system for an ODR-enabled civil justice tribunal.


Darin Thompson
Legal Counsel, BC Ministry of Justice; Adjunct Law Professor, University of Victoria; Adjunct Law Professor, Osgoode Hall Law School. Email: darinmobile@gmail.com.
News

The Online Court

Misunderstandings and Misconceptions when Delivering a Vision for the Future of Justice

Journal International Journal of Online Dispute Resolution, Issue 1 2015
Keywords online courts, online judges, civil justice, Alternative Dispute Resolution, mediation
Authors Graham Ross
AbstractAuthor's information

    An ODR Advisory Group set up in 2014 by the Civil Justice Council of England and Wales to research and advise on the opportunities for introducing ODR into the justice system has produced a Report (<https://www.judiciary.gov.uk/wp-content/uploads/2015/02/Online-Dispute-Resolution-Final-Web-Version1.pdf>) that recommends an extensive online dimension to the court system in England and Wales. The Report raises the novel perspective of a court being seen more as a service rather than as a physical venue, seeking to place its primary focus on informing and assisting the public in containing and resolving, if not avoiding in the first place, disputes and to do so with less intervention by a judge. When judges do become involved they also will be encouraged to work more online than in a courtroom. The Report, therefore, does not look simply at ODR as aiding ADR (Alternative Dispute Resolution), as may have been the case hitherto for most applications of ODR, but as its being integral to the court process itself. The twin benefits the Group sees as being achieved are to both significantly widen access to the courts while, at the same time, reducing the burden of public cost incurred in operating and maintaining the court system.
    It is becoming clear from comments on the Report published online that there is a significant level of misunderstanding over certain aspects of the Report. This is to be expected to a degree, especially given the wide publicity for the Report. Indeed, the early comments are welcomed as they give the opportunity to all proponents of the Report to advance the debate by minimizing such misunderstandings.
    The website (<https://www.judiciary.gov.uk/reviews/online-dispute-resolution/>) accompanying the Report provides a suitable venue to continue the debate.


Graham Ross
Head of the European Advisory Board to Modria.com Inc and, Member of the Civil Justice Council’s ODR Advisory Group.
Article

Access_open Space Traffic Management

A Challenge of Cosmic Proportions

Journal International Institute of Space Law, Issue 4 2015
Authors Frans G. von der Dunk
Author's information

Frans G. von der Dunk
University of Nebraska-Lincoln, College of Law, Space, Cyber and Telecommunications Law Program
Article

Which Direction Is the Regulatory Quality Pendulum Taking?

Journal European Journal of Law Reform, Issue 1 2015
Keywords regulatory quality, meta-policy, competitiveness, impact assessment, cognitive sciences
Authors Luca Di Donato
AbstractAuthor's information

    This article seeks a systematic definition of regulatory quality. Most of the literature has recognised that the concept of regulatory quality is particularly difficult to define. Member states, international organisations, and others have produced studies on regulatory quality, and they have reached different findings. Even if regulatory quality is based on conventional good governance principles, the enforcement and measurement of the quality of regulations and of its tools within any single country can differ widely and be very complicated.
    For these reasons, Part I explores regulatory quality in the European Union and – through the analysis of the policies, reports, and documents – indicates which direction the regulatory quality pendulum has taken.
    Part II, basing itself on the results of Part I, provides a general definition of quality, and it based on the procedures that legislator should comply with to enact its rules.
    Part III confirms the relationship between regulatory quality and competitiveness, and, in particular, this link has become more solid because the financial crisis has promoted new regulatory reforms by member states.
    Finally, this article notes that the legislator’s objectives can be achieved if the former takes into account the real people, including their irrational choices, human errors, and limits.


Luca Di Donato
PhD Candidate at Luiss Guido Carli University. Email: sdc.luca@gmail.com.
Article

Regulating Genetic Discrimination in the European Union

Pushing the EU into Unchartered Territory or Ushering in a New Genomic Era?

Journal European Journal of Law Reform, Issue 1 2015
Keywords genetics, regulation, discrimination, data protection, European Union
Authors Aisling de Paor and Delia Ferri
AbstractAuthor's information

    Against the backdrop of rapid developments in genetic science and technology, one of the main concerns arising in this area is the potential use of genetic testing to discriminate, especially in the employment and insurance contexts. Employers and insurance companies may use the results of genetic tests to discriminate (primarily for economic advantage), based on perceptions of future health risks or future disabilities. This article explores the scope for an EU to effectively address genetic discrimination and the misuse of genetic information. It first provides a theoretical overview of the choice of regulatory frameworks. It then examines the scope and protection of current non- discrimination laws in the EU and investigates the possibility of an EU level response to address the misuse of genetic information.


Aisling de Paor
BCL, LLM, PhD, Solicitor (Law Society of Ireland) – Lecturer in Law, Dublin City University.

Delia Ferri
LLM, PhD in European and Italian constitutional law, Attorney at Law registered at the Verona Bar (Italy) – Lecturer in Law, National University of Ireland Maynooth.
Article

Avatar Film

Perspectives from Space Law

Journal International Institute of Space Law, Issue 3 2015
Authors Álvaro Fabricio dos Santos and José Monserrat Filho
Author's information

Álvaro Fabricio dos Santos
Advocacy General of the Union (AGU), Brazilian Association for Aeronautics and Space Law (SBDA), São José dos Campos, SP, Brazil

José Monserrat Filho
Brazilian Space Agency (AEB), Brazilian Association for Aeronautics and Space Law (SBDA), Brazilian Society for the Advancement of Science (SBPC), Rio de Janeiro, RJ, Brazil

Larry F. Martinez
California State University, Long Beach, USA

Motolani Fadahunsi-Banjo
National Space Research and Development Agency (NASRDA), Nigeria
Article

Access_open Expounding the Place of Legal Doctrinal Methods in Legal-Interdisciplinary Research

Experiences with Studying the Practice of Independent Accountability Mechanisms at Multilateral Development Banks

Journal Erasmus Law Review, Issue 3 2015
Authors Andria Naudé Fourie
AbstractAuthor's information

    There is a distinct place for legal doctrinal methods in legal-interdisciplinary research methodologies, but there is value to be had in expounding that place – in developing a deeper understanding, for instance, of what legal doctrinal analysis has to offer, wherein lies its limitations, and how it could work in concert with methods and theories from disciplinary areas other than law. This article offers such perspectives, based on experiences with an ‘advanced’ legal-interdisciplinary methodology, which facilitates a long-term study of the growing body of practice generated by citizen-driven, independent accountability mechanisms (IAMs) that are institutionally affiliated with multilateral development banks. The article demonstrates how legal doctrinal methods have contributed towards the design and development of a multipurpose IAM-practice database. This database constitutes the analytical platform of the research project and also facilitates the integration of various types of research questions, methods and theories.


Andria Naudé Fourie
Research Associate, Erasmus University Rotterdam, School of Law.

    The doctrinal methodology is in a period of change and transition. Realising that the scope of the doctrinal method is too constricting, academic lawyers are becoming eclectic in their use of research method. In this transitional time, legal scholars are increasingly infusing evidence (and methods) from other disciplines into their reasoning to bolster their reform recommendations.
    This article considers three examples of the interplay of the discipline of law with other disciplines in the pursuit of law reform. Firstly the article reviews studies on the extent of methodologies and reformist frameworks in PhD research in Australia. Secondly it analyses a ‘snapshot’ of recently published Australian journal articles on criminal law reform. Thirdly, it focuses on the law reform commissions, those independent government committees that play such an important role in law reform in common law jurisdictions.
    This examination demonstrates that while the doctrinal core of legal scholarship remains intact, legal scholars are endeavouring to accommodate statistics, comparative perspectives, social science evidence and methods, and theoretical analysis, within the legal research framework, in order to provide additional ballast to the recommendations for reform.


Terry Hutchinson
Associate Professor, Faculty of Law, QUT Law School (t.hutchinson@qut.edu.au); Marika Chang (QUT Law School) was the research assistant on this project.
Article

Addressing the Pension Challenge: Can the EU Respond?

Towards Facilitating the Portability of Supplementary (Occupational) Pension Rights

Journal European Journal of Law Reform, Issue 4 2014
Keywords Economic crisis, social protection, pension provision, occupational pensions, cross-border portability of pension rights
Authors Konstantina Kalogeropoulou
AbstractAuthor's information

    The European economic crisis has underlined the challenges that Member States of the European Union face towards ensuring adequate social protection provision for their citizens. The effects of the crisis have and can further impact on the capacity of pension schemes, both state provided and privately managed, that constitute a significant aspect of social protection, to deliver pension promises. This paper highlights the current situation that the common pension challenges pose for Member States and focuses on a particular issue around occupational pension provision, which has been on the European Commission’s agenda for a long time, and on which limited progress had been made. This is the issue of cross-border portability of supplementary pension rights. It is argued that current circumstances facilitate EU action to be taken in this area. In the first section, the paper identifies the main challenges around pension provision stemming from demographic ageing and the effects of the economic crisis. Section two provides a brief overview of the Commission’s holistic approach envisaged in its 2012 White Paper on safe, adequate, and sustainable pensions. Section three provides an overview of the issue of the portability of supplementary pension rights for EU workers. Section four outlines previous attempts and recent developments towards the adoption of legislative measures to promote the portability of such pension entitlements. The paper concludes by arguing that the renewed focus on pensions, in the context of current challenges and the need to enhance workers’ mobility and to provide adequate social protection, have paved the way towards the adoption of measures in this area.


Konstantina Kalogeropoulou
Senior Lecturer in Law, Kingston University. I would like to thank Dr Ioannis Glinavos for the invitation to participate in this special issue.
Article

Collective Action Clauses in the Eurozone

One Step Forward, Two Steps Back

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

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


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

EU Corporate Governance

The Ongoing Challenges of the ‘Institutional Investor Activism’ Conundrum

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

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


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