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Article

The Online Civil Money Claim

Litigation, ADR and ODR in One Single Dispute Resolution Process

Journal International Journal of Online Dispute Resolution, Issue 1 2020
Keywords ADR, pre-action protocols, civil procedure, online dispute resolution, mediation, civil justice, online civil money claim, online services
Authors Md Mahar Abbasy
AbstractAuthor's information

    This article considers the recent reforms in English Civil Justice System, especially the new Online Civil Money Claim (OCMC). To make the UK courts easily accessible and affordable, Lord Justice Briggs in his Civil Courts Structure Review recommended for the introduction of an Online Solutions Court. This is a revolutionary step because it embeds alternative dispute resolution (ADR), in particular mediation, into the court system. This is very important because mediation emerged as an alternative to courts but has become an integral part of it. This study critically examines how mediation is being embedded into the English Civil Justice System and argues for a balanced relationship between litigation and mediation because they complement each other. This article is divided into four sections (a) Section 2 will discuss how the Online Court will impact the open justice; (b) Section 3 will provide an overview of the three stages of OCMC; (c) Section 4 will carry out a critical analysis of the OCMC; and (d) Section 5 will seek to put forward solutions and recommendations in light of the findings.


Md Mahar Abbasy
PhD Candidate at the University of Leicester.
Article

E-Measures

International Arbitral Institutions’ Responses to COVID-19

Journal International Journal of Online Dispute Resolution, Issue 1 2020
Keywords international arbitration institutions, COVID-19, availability of e-filing, e-measures
Authors Kendra Magraw
AbstractAuthor's information

    This article will briefly and non-exhaustively examine the emergency measures taken by some international arbitral institutions in response to the COVID-19 pandemic. Such emergency measures, as will be seen, were primarily and due to necessity geared towards moving arbitrations online. Section 1 briefly describes some reasons why the status quo prior to COVID-19 for certain arbitral institutions likely made it necessary to implement e-measures: in other words, it will provide examples of the types of constraints that may have previously prevented arbitral institutions from being more electronic/online. Section 2 broadly identifies the e-measures taken by arbitral institutions, and extracts some general trends therefrom. Finally, Section 3 will offer some brief conclusions and thoughts concerning the future of such e-measures.


Kendra Magraw
Kendra Magraw is a doctoral candidate in international law at the Graduate Institute of International and Development Studies in Geneva, Switzerland.
Article

‘Firewalls’ to Justice

Can Barriers in Censorship Practices Lead to Advancements in Online Dispute Resolution?

Journal International Journal of Online Dispute Resolution, Issue 1 2020
Keywords online dispute resolution, system design, access to justice, artificial intelligence, intellectual property, blockchain, information communication technology, COVID-19
Authors Shirin Ghafary
AbstractAuthor's information

    This article will discuss how we can learn from barriers of internet censorship to create opportunities for better access to the justice system through newer and more reliable Online Dispute Resolution technology. These advancements in technology can help in the application of security measures for materials disclosed in the use of online dispute resolution (ODR) platforms and reduce people’s fears of privacy concerns. This in turn will promote the use of ODR and provide greater access to the justice system, especially for those people who cannot afford more traditional forms of legal services by making more convenient platforms that are less costly, less time consuming, and more readily available to people via their laptops. Technology is advancing and it is advancing fast, we choose whether we advance with it or stay behind. The COVID-19 pandemic has shown us the vulnerabilities of our society and how technologically far behind we are, perhaps it was just the push that we needed.


Shirin Ghafary
Juris Doctor, McGeorge School of Law, University of the Pacific, Bachelor of Science, York University.
Article

Like Mother, Like Daughter?

Linkage Between Local Branches and Their National Party Headquarters in Belgium

Journal Politics of the Low Countries, Issue 2 2020
Keywords local branches, national party headquarters, linkage, integration, multilevel parties
Authors Kristof Steyvers
AbstractAuthor's information

    This article scrutinises local-national linkage in Belgium to better understand territorial power relations in multilevel parties. Drawing on a survey of local chairs of national parties, it adopts an innovative, informal and bottom-up approach. The descriptive analysis reveals two central axes in the morphology of linkage: scope (downward support and upward influence) and surplus (benefits versus costs). However, (the valuation of) this interdependence appears as a matter of degree. The explanatory analysis therefore probes into the effect of macro- (between environments), meso- (between parties) and micro- (within parties) level factors. It demonstrates that variance is explained by different parameters. For scope, differences between parties trump those within them. For surplus, specific differences between parties as well as within them matter. The answer to our guiding question is therefore variegated: it depends on for what and for whom.


Kristof Steyvers
Kristof Steyvers is Associate Professor in the Department of Political Science of Ghent University (Belgium). His research is conducted in the Centre for Local Politics, where he focuses on topics such as local political leadership, parties and elections at the local level, local government in multilevel governance and local government reforms (often from a comparative perspective).
Article

Access_open Recourse to Mediation in Times of Crisis

Is Business Ripe for a New Approach That Saves Time and Preserves Relationships, Also in the Field of Competition Law?

Journal Corporate Mediation Journal, Issue 1 2020
Keywords cross-border mediation, crises, Covid-19
Authors Pierre Kirch
AbstractAuthor's information

    The purpose of this article is to share some practical reflections on cross-border mediation and its application to Private Competition Disputes in Europe, at this time of crisis. The outbreak of the COVID-19 pandemic has led to a rethinking of methods of dispute resolution, everywhere. In Europe, whether before the European Union courts in Luxembourg or the civil and commercial courts in the Member States, judicial procedures are at a standstill at the time of writing (mid-2020). Once the courts get going again, it will probably take years to get the judicial system back in good working order. It may be necessary to take shortcuts to get the system back in shape, such as cancellation of hearings, recourse to summary forms of justice, etc. That is not what the parties bargained for at the outset of their judicial procedure.


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).
Title

Parliamentary Follow-up of Law Commission Bills

An Irish Perspective

Journal European Journal of Law Reform, Issue 2 2020
Keywords law reform, legislation, Ireland, drafting, parliament
Authors Ciarán Burke
AbstractAuthor's information

    This article seeks to present a brief outline of the various means through which the draft bills and recommendations drafted by the Law Reform Commission of Ireland and published in its reports are followed up by the Irish Parliament, the Oireachtas. The Commission’s position within the Irish legislative architecture is explained, as is the process through which bills become laws in Ireland. The Commission, it is noted, occupies an unusual role. Although there is no requirement for its publications to result in legislation, ultimately the lion’s share of its output is followed up on in the legislative process in one form or another, with its publications attracting the attention of both the government and opposition parties. The challenges and advantages presented by operating within a small jurisdiction are also outlined, while some thoughts are offered on the Commission’s future.


Ciarán Burke
Professor of International Law, Friedrich Schiller Universität, Jena, and former Director of Research at the Law Reform Commission of Ireland. The author would like to thank Alexandra Molitorisovà for her help in preparing this article.
Article

Reflections on the Rule of Law and Law Reform in the Arab Region

Journal European Journal of Law Reform, Issue 2 2020
Keywords rule of law, law reform, colonialism, authoritarianism, international development
Authors Dr Sara Razai
AbstractAuthor's information

    This article offers some preliminary thoughts on the issue of international development actors in the promotion of law in the Arab region. Specifically, it reflects on the rule of law concept as a universalizing notion, touted by international organizations and governments alike as a panacea for social ills. The article discusses the act of intervention and the use and promotion of law to achieve a rule of law order in post-conflict or fragile states. It argues that the use and promotion of law by international development actors (and the donors that fund them) – a proxy for building the rule of law – is by no means new to the region. It has also been the central focus of authoritarian and colonial rulers alike. Although they are by no means similar, the three actors are strikingly similar in that they use and promote law under the aegis of building the rule of law, to the general detriment of the masses


Dr Sara Razai
Sara Razai, UCL Judicial Institute.
Article

Access_open The Effectiveness Paradigm in Financial Legislation – Is Effectiveness Measurable?

Journal Erasmus Law Review, Issue 2 2020
Keywords effectiveness, effectiveness measurement methodologies, financial legislation, legislative objective, product approval governance
Authors Jeroen Koomans
AbstractAuthor's information

    How can you determine if financial legislation is effective? This article seeks to identify three characteristics that make up the basis for an effectiveness review, being the determination what the legislative objective is, who is it aimed at and what approach is taken to achieve this objective. Determining the legislative objective may prove to be a challenging undertaking, and the uncertainties that come with that affect the other two characteristics as well. And even if a clear legislative objective can be established, how can you be sure that its achievement was in fact attributable to the legislation under review? What do you compare your results to absent a baseline measurement and how can the vast number of variables that affect the effectiveness of the legislation under review be accounted for, if at all? Is effectiveness in financial legislation at all measurable and, when measured, what is its value in practice?


Jeroen Koomans
Jeroen Koomans is affiliated to the University of Amsterdam FEB Academy for Banking and Insurance and employed by ABN AMRO Bank N.V.
Article

Access_open Recht en politiek in de klimaatzaken

Een sleutelrol voor het internationaal recht in de argumentatie van de nationale rechter

Journal Netherlands Journal of Legal Philosophy, Issue 1 2020
Authors Vincent Dupont
AbstractAuthor's information

    Ever since it was published in 2015, the judgment of the The Hague court in the so-called Urgenda-case, and the subsequent decisions of the appellate and cassation courts confirming it, have been met with repeated and vivid critiques. By recognizing the necessity of the reduction in greenhouse gas emissions, and furthermore imposing a certain reduction level on the Dutch state, the judgments in the cases at hand gave rise to many questions concerning the position of the judiciary in the matter, and in Dutch society as a whole. This article attempts in the first place to situate the positions of the different actors intervening in the Urgenda-case within a legal-theoretical framework. The contribution subsequently explores the strategic possibilities that an alternative understanding of law could offer to the judges, focusing specifically on the use of legal instruments stemming from international law, brought into the reasoning of the national judge.


Vincent Dupont
Vincent Dupont studeerde in 2017 af als Master of Laws aan de KU Leuven en volgt momenteel een opleiding sociologie aan de Université libre de Bruxelles, Unicamp in São Paulo en de École des hautes études en sciences sociales in Parijs.
Rulings

ECJ 19 December 2019, case C-168/18 (Pensions-Sicherungs-Verein VVaG), Insolvency, pension

Pensions-Sicherungs-Verein VVaG – v – Günther Bauer, German case

Journal European Employment Law Cases, Issue 1 2020
Keywords Insolvency, Pension
Abstract

    A reduction of old-age pensions under Directive 2008/94 is manifestly disproportionate if the former employee lives or would have to leave below Eurostat’s at-risk-of-poverty threshold, even if s/he receives at least half of the amounts of the benefits from his/her acquired rights.

Noten


Thomas Dullinger
Univ.-Ass. Mag. Thomas Dullinger is associated with Institut für Arbeits- und Sozialrecht, Universität Wien.
Pending Cases

Case C-799/19, Insolvency

NI, OJ, PK – v – Sociálna poisťovňa, reference lodged by the Okresný súd Košice I (Slovakia) on 30 October 2019

Journal European Employment Law Cases, Issue 1 2020
Keywords Insolvency

Kathleen Daly
Kathleen Daly is Professor in the School of Criminology and Criminal Justice, Griffith University, Brisbane, Australia.

Susan Sharpe
Susan Sharpe is an adviser on restorative justice, University of Notre Dame, South Bend, Indiana, USA.

Lode Walgrave
Lode Walgrave is Professor Emeritus in Criminology at the University Leuven, Belgium, and member of the Editorial team of TIJRJ.

Miranda Forsyth
Miranda Forsyth is an Associate Professor at the College of Asia and the Pacific, Australian National University, Canberra, Australia.

Valerie Braithwaite
Valerie Braithwaite is Professor at the College of Asia and the Pacific, Australian National University, Canberra, Australia.

John Braithwaite
John Braithwaite is an Emeritus Professor, Australian National University, Canberra, Australia.

Albert Dzur
Albert Dzur is Distinguished Research Professor, Departments of Political Science and Philosophy, Bowling Green State University, USA.
Article

Gender and Language

A Public Law Perspective

Journal European Journal of Law Reform, Issue 1 2020
Keywords gender language, drafting, language, coercion, linguistic policies
Authors Maria De Benedetto
AbstractAuthor's information

    The article adopts a public law perspective in order to focus on Gender-Fair Language (GFL) policies and drafting, by considering both language neutralization and language differentiation in some legal systems characterized by different languages.
    The article argues that the real problem is whether it is possible to coerce legislative and administrative language as a tool for policies. In fact, coercion of language produces administrative costs and side effects on freedoms (such as freedom of speech and freedom to teach); controls and sanctions are needed for enforcement; but, overall, language (as an institution) is not a proper object of regulation.


Maria De Benedetto
Full Professor, Roma Tre University, Roma, Italy.
Article

Language and Gender

The Importance of Including a Gender Perspective in the Language of the Constitutional Reform in Spain

Journal European Journal of Law Reform, Issue 1 2020
Keywords language, gender, Constitution, reform, Spain
Authors Ana Marrades
AbstractAuthor's information

    Language is a reflection of culture, and at the same time it helps to build that culture. In the same way, it can be used to transform it. Language serves for describing a culture, to show what we see, but at the same time, it strengthens the relationships of power that exist on the basis of male power. In this way, we can use language to build other kinds of relationships based on equality.
    The Spanish Constitution is written in the masculine. Although it is based on equality, masculine language shows that the power relations lean towards men, and this hides women’s participation. When a text or a legal message uses structures or words that hide or discriminate against one gender, it can be said that linguistic sexism exists, and this violates the principle of equality. This is a reflection about what is happening in our society because language describes cultural values. This exclusion of women in the constitutional text is in itself a denial of them as subjects of rights and as citizens. This is not only a denial of the part of power that corresponds to them, but also the consolidation of a collective story of female subordination.
    Therefore this article aims to focus on the need to carry out a revision of the Spanish Constitution in female and inclusive language that, in parallel to the recognition and guarantee of parity democracy, makes women visible as autonomous subjects. In addition, it also breaks with the male universality of the language and the monopoly of male language to define the sources of the law, as well as rights, powers, institutions, values and policies.


Ana Marrades
Senior lecturer in Constitutional law, University of Valencia.
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