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Part II Private Justice

Reputational Feedback Systems and Consumer Rights

Improving the European Online Redress System

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords reputational feedback systems, consumer’s protection, dispute resolution, ADR, ODR, enforceability, ecommerce, European redress system small claims
Authors Aura Esther Vilalta Nicuesa
AbstractAuthor's information

    The European Union single market needs to tackle an outstanding issue to boost competitiveness and growth: a trust-based redress framework that ensures the effectiveness of consumers’ rights. The current disparities among dispute resolution mechanisms, added to the fact that in practice many do not guarantee participation and enforceability, are serious obstacles to this goal. Trust and the integration of certain dispute avoidance tools added to the regulation of some common enforcement mechanisms are key issues in the field of consumer protection. The goal of this article is to offer some insights within the context of the European Union legislative proposals aimed at improving the current redress system.


Aura Esther Vilalta Nicuesa
Aura Esther Vilalta Nicuesa is Professor of Law, Universitat Oberta de Catalunya (UOC) and member of the National Center or Technology and Dispute Resolution, Massachusetts, Amherst.
Part II Private Justice

Decentralized Justice in the Era of Blockchain

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords ODR, blockchain, arbitration, decentralization, crowdsourcing
Authors James Metzger
AbstractAuthor's information

    ODR that is built on blockchain technology and infrastructure is championed by supporters as being capable of revolutionizing dispute resolution. Kleros is a decentralized dispute resolution platform built on the Ethereum blockchain that uses cryptoeconomic theories and game theory to recruit and incentivize a worldwide pool of ‘jurors’ to decide the cases arbitrated through the platform. This article discusses some early evaluations of whether this kind of decentralized ODR is likely to succeed by viewing the model through a normative framework, including considering whether crowdsourcing of justice on a decentralized platform is a viable way to conduct ODR. The article then discusses the likelihood of the success of the sub-court model, including whether choice-of-law issues might be problematic for a worldwide, decentralized system. Finally, the article considers whether the cryptoeconomic and game theories that provide the foundation for the Kleros platform are likely to result in a jury pool, much less an actual jury, that could be considered ‘fair.’ The article is informed by the author’s experience with the Kleros platform through participation in its interactive initial coin offering and engaging in its beta-testing phase.


James Metzger
Dr. James Metzger is a lecturer at the University of New South Wales Faculty of Law.
Part I Courts and ODR

Ethical Concerns in Court-Connected Online Dispute Resolution

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords court ODR, fourth party, ethics, access to justice, confidentiality, transparency, informed participation, accessibility, accountability, empowerment, trust
Authors Dorcas Quek Anderson
AbstractAuthor's information

    This article examines the burgeoning trend of creating court ODR systems, focusing on the design aspects that are likely to raise ethical challenges. It discusses four salient questions to be considered when designing a court ODR system, and the resulting ethical tensions that are brought to the fore. As a fourth party, the ODR system not only replaces existing court functions, but enlarges the scope of the courts’ intervention in disputes and increases the courts’ interface with the user. Furthermore, certain ethical principles such as transparency, accountability, impartiality and fairness take on greater significance in the court context than in private ODR, because of the association of the courts with substantive and procedural justice. As in any dispute resolution system, a coherent and effective court ODR system should be guided by dispute system design principles, which includes having clarity of the system’s underlying values and purposes. It is therefore pertinent for each court to resolve the key ethical tensions in order to articulate the foundational values that will undergird the design of its ODR system.


Dorcas Quek Anderson
Dorcas Quek Anderson is an Assistant Professor in the Singapore Management University School of Law. This research is supported by the National Research Foundation, Prime Minister’s Office, Singapore (NRF), and the Infocomm Media Development Authority (IMDA) under a grant to the Singapore Management University School of Law to helm a 5-year Research Program on the Governance of Artificial Intelligence and Data Use.
Part II Private Justice

Making ODR Human

Using Human-Centred Design for ODR Product Development

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords online dispute resolution, courts and tribunals, human-centred design, legal tech, legal design, user testing, user-centred design, machine learning, alternative dispute resolution, product development
Authors Luke Thomas, Sarah Kaur and Simon Goodrich
AbstractAuthor's information

    This article discusses what we as human-centred design practitioners have learnt from researching and designing online dispute resolution (ODR) products both for clients and as part of our internal research and development initiatives.


Luke Thomas
Luke Thomas is Design Strategist/Legal Researcher at Portable.

Sarah Kaur
Sarah Kaur is Chief Operating Officer at Portable.

Simon Goodrich
Simon Goodrich is Managing Director at Portable.
Article

The Rome Statute Complementarity Principle and the Creation of the African Court of Justice and Human and Peoples’ Rights

Journal African Journal of International Criminal Justice, Issue 1-2 2018
Keywords Rome Statute, International Criminal Court, complementarity, African Court of Justice and Human and Peoples’ Rights, unwillingness and inability
Authors Muyiwa Adigun LLB, LLM PhD
AbstractAuthor's information

    The Rome Statute places the responsibility of prosecuting crimes recognized under the Statute on state parties and the International Criminal Court (ICC) and will only intervene when such states are unwilling or unable. This is called the principle of complementarity. Thus, African state parties to the Statute are expected to prosecute crimes recognized under the Statute. However, these African state parties and their counterparts who are not parties have decided to create the African Court of Justice and Human and Peoples’ Rights, which, like the ICC, will prosecute the crimes recognized under the Rome Statute if they are unwilling and unable. This study therefore examines the question of whether the creation of the African Court of Justice and Human and Peoples’ Rights is compatible with the obligation of the African state parties under the Rome Statute to prosecute. The study argues that the creation of the Court can be reconciled with the obligation to prosecute under the Rome Statute if the African Union, of which the Court is its judicial organ, is considered to be the agent of the African state parties, which invariably implies that the African state parties are the ones carrying out the prosecution as principals.


Muyiwa Adigun LLB, LLM PhD
LLB, LLM (Ibadan); PhD (Witwatersrand); Lecturer, Faculty of Law, University of Ibadan, Ibadan, Nigeria.

Marcell Horváth
PhD candidate, University of Pécs.

Írisz E. Horváth
Associate professor, Pázmány Péter Catholic University, Budapest.

Ágota Török
Legal counsel, accredited public procurement consultant, National Infocommunications Service Company Ltd.

Albert Dzur
Albert Dzur is Professor, Departments of Political Science and Philosophy, Bowling Green State University, USA. Contact author: awdzur@bgsu.edu.
Article

Keeping complexity alive: restorative and responsive approaches to culture change

Journal The International Journal of Restorative Justice, Issue 3 2018
Keywords Restorative justice, responsive regulation, relational governance, complexity
Authors Gale Burford
AbstractAuthor's information

    The human services are fraught with history of failure related to grasping oversimplified, across-the-board solutions that are expected to work in all situations for all groups of people. This article reviews some of the long-standing and current challenges for governance of programmes in maintaining cultures that safeguard restorative and responsive standards, principles and values, thereby amplifying and enhancing their centrality to relational engagement within families, groups, communities and organisations. Despite their potential for helping groups of people grapple with the complex dynamics that impact their lives, restorative justice approaches are seen as no less vulnerable to being whittled down to technical routines through practitioner and sponsor colonisation than other practices. This article explores some of the ways culture can work to erode and support the achievement of restorative standards, and why restorative justice and regulation that is responsive to the ongoing experiences of affected persons offers unique paths forward for achieving justice. Included in this exploration are the ways that moral panic and top-down, command-and-control management narrow relational approaches to tackling complex problems and protect interests that reproduce social and economic inequality.


Gale Burford
Gale Burford is Emeritus Professor of Social Work, University of Vermont, Burlington, USA. Contact author: gburford@uvm.edu. Disclosure statement: There are no financial conflicts of interest.
Article

Access_open ‘A Continuous Process of Becoming’: The Relevance of Qualitative Research into the Storylines of Law

Journal Erasmus Law Review, Issue 2 2018
Keywords storylines of law, qualitative research, law in action, law in books
Authors Danielle Antoinette Marguerite Chevalier
AbstractAuthor's information

    The maxim ‘law in books and law in action’ relays an implicit dichotomy, and though the constitutive nature of law is nowadays commonly professed, the reflex remains to use law in books as an autonomous starting point. Law however, it is argued in this article, has a storyline that commences before its institutional formalisation. Law as ‘a continuous process of becoming’ encompasses both law in books and law in action, and law in action encompasses timelines both before and after the formal coming about of law. To fully understand law, it is necessary to understand the entire storyline of law. Qualitative studies in law and society are well equipped to offer valuable insights on the facets of law outside the books. The insights are not additional to doctrinal understanding, but part and parcel of it. To illustrate this, an ethnographic case study of local bylaws regulating an ethnically diverse public space of everyday life is expanded upon. The case study is used to demonstrate the insights qualitative data yields with regard to the dynamics in which law comes about, and how these dynamics continue for law in action after law has made the books. This particular case study moreover exemplifies how law is one of many truths in the context in which it operates, and how formalised law is reflective of the power constellations that have brought it forth.


Danielle Antoinette Marguerite Chevalier
Dr. mr. Danielle Antoinette Marguerite Chevalier, PhD, is assistant professor at Leiden University, The Netherlands.

Peter Mascini
Erasmus University Rotterdam, Erasmus School of Law. Corresponding author. Sanders building, 7 West, P.O. Box 1738, 3000 DR, Rotterdam, The Netherlands, pmascini@gmail.com.

Wibo van Rossum
Erasmus University Rotterdam, Erasmus School of Law.
Article

Access_open Making Sense of the Law and Society Movement

Journal Erasmus Law Review, Issue 2 2018
Keywords law and society, sociology of law, sociolegal, empirical legal studies
Authors Daniel Blocq and Maartje van der Woude
AbstractAuthor's information

    This article aims to deepen scholarly understanding of the Law and Society Movement (L&S) and thereby strengthen debates about the relation between Empirical Legal Studies (ELS) and L&S. The article departs from the observation that ELS, understood as an initiative that emerged in American law schools in the early 2000s, has been quite successful in generating more attention to the empirical study of law and legal institutions in law schools, both in- and outside the US. In the early years of its existence, L&S – another important site for the empirical study of law and legal institutions – also had its center of gravity inside the law schools. But over time, it shifted towards the social sciences. This article discusses how that happened, and more in general explains how L&S became ever more diverse in terms of substance, theory and methods.


Daniel Blocq
Daniel Blocq is assistant professor at Leiden Law School.

Maartje van der Woude
Maartje van der Woude is professor at Leiden Law School.
Article

Access_open Empirical Legal Research in Europe: Prevalence, Obstacles, and Interventions

Journal Erasmus Law Review, Issue 2 2018
Keywords empirical legal research, Europe, popularity, increase, journals
Authors Gijs van Dijck, Shahar Sverdlov and Gabriela Buck
AbstractAuthor's information

    Empirical Legal research (ELR) has become well established in the United States, whereas its popularity in Europe is debatable. This article explores the popularity of ELR in Europe. The authors carried out an empirical analysis of 78 European-based law journals, encompassing issues from 2008-2017. The findings demonstrate that a supposed increase of ELR is questionable (at best).
    Moreover, additional findings highlight:

    • An increase for a few journals, with a small number of other journals showing a decrease over time;

    • A higher percentage of empirical articles for extra-legal journals than for legal journals (average proportion per journal is 4.6 percent for legal journals, 18.9 percent for extra-legal journals);

    • Criminal justice journals, environmental journals, and economically oriented journals being more likely to publish empirical articles than other journals;

    • More prestigious journals being more likely to publish empirical articles than less-prestigious journals;

    • Older journals being more likely to publish empirical work than younger journals, but not at an increasing rate;

    • Journals being legal/extra-legal, journals in a specific field, journal ranking, or the age of the journal not making it more (or less) likely that the journal will publish empirical articles at an increasing (or decreasing) rate.
      Considering the lack of convincing evidence indicating an increase of ELR, we identify reasons for why ELR is seemingly becoming more popular but not resulting in more empirical research in Europe. Additionally, we explore interventions for overcoming the obstacles ELR currently faces.


Gijs van Dijck
Professor of Private Law at Maastricht University, the Netherlands.

Shahar Sverdlov
Law student at the Vrije Universiteit Amsterdam, the Netherlands.

Gabriela Buck
Law student at Maastricht University, the Netherlands.
Article

Access_open Evidence-Based Regulation and the Translation from Empirical Data to Normative Choices: A Proportionality Test

Journal Erasmus Law Review, Issue 2 2018
Keywords evidence-based, regulation, proportionality, empirical law studies, law and society studies
Authors Rob van Gestel and Peter van Lochem
AbstractAuthor's information

    Studies have shown that the effects of scientific research on law and policy making are often fairly limited. Different reasons can be given for this: scientists are better at falsifying hypothesis than at predicting the future, the outcomes of academic research and empirical evidence can be inconclusive or even contradictory, the timing of the legislative cycle and the production of research show mismatches, there can be clashes between the political rationality and the economic or scientific rationality in the law making process et cetera. There is one ‘wicked’ methodological problem, though, that affects all regulatory policy making, namely: the ‘jump’ from empirical facts (e.g. there are too few organ donors in the Netherlands and the voluntary registration system is not working) to normative recommendations of what the law should regulate (e.g. we need to change the default rule so that everybody in principle becomes an organ donor unless one opts out). We are interested in how this translation process takes place and whether it could make a difference if the empirical research on which legislative drafts are build is more quantitative type of research or more qualitative. That is why we have selected two cases in which either type of research played a role during the drafting phase. We use the lens of the proportionality principle in order to see how empirical data and scientific evidence are used by legislative drafters to justify normative choices in the design of new laws.


Rob van Gestel
Rob van Gestel is professor of theory and methods of regulation at Tilburg University.

Peter van Lochem
Dr. Peter van Lochem is jurist and sociologist and former director of the Academy for Legislation.
Article

Smart Enforcement

Theory and Practice

Journal European Journal of Law Reform, Issue 4 2018
Keywords regulatory inspections, regulatory enforcement, environmental regulations, smart regulation
Authors Dr. Florentin Blanc and Prof. Michael Faure
AbstractAuthor's information

    There is an increasing attention both on how inspections and enforcement efforts with respect to regulatory breaches can be made as effective as possible. Regulatory breaches refer to violations of norms that have been prescribed in public regulation, such as, for example, environmental regulation, food safety regulation or regulation aiming at occupational health and safety. The enforcement of this regulation is qualified as regulatory enforcement. It has been claimed that inspections should not be random, but based on risk and target-specific violators and violations. Such a “smart” enforcement policy would be able to increase the effectiveness of enforcement policy. Policy makers are enthusiastic about this new strategy, but less is known about the theoretical foundations, nor about the empirical evidence. This article presents the theoretical foundations for smart enforcement as well as some empirics. Moreover, the conditions under which smart enforcement could work are identified, but also a few potential limits are presented.


Dr. Florentin Blanc
Dr. Florentin Blanc is a consultant to the World Bank Group, OECD, and governments on investment climate and business environment.

Prof. Michael Faure
Prof. Michael Faure is Academic Director Maastricht European institute for Transnational Legal Research (METRO), Maastricht University, Professor of Comparative and International Environmental Law, Maastricht University and Academic Director of Ius Commune Research School, Maastricht University. He is also Professor of Comparative Law and Economics at Erasmus Law School (Rotterdam).
Article

Access_open Sustainable Enjoyment of Economic and Social Rights in Times of Crisis

Obstacles to Overcome and Bridges to Cross

Journal European Journal of Law Reform, Issue 4 2018
Keywords social and economic rights, austerity measures, Euro crisis, defaulting countries
Authors Dr. Natalie Alkiviadou
AbstractAuthor's information

    In 2008, the European Union was hit by the most severe financial downturn since the Great Recession of the 1930s. One of the major consequences of this phenomenon was the deterioration in the enjoyment of human rights, in particular economic and social rights. While it is indisputable that the crisis itself was directly correlated to the erosion of such rights, the conditions attached to the loan agreements between defaulting countries and the three lending institutions, namely the International Monetary Fund (IMF), the European Central Bank and the European Commission, have negatively affected the rights under consideration. Loans came with strict austerity measures, such as public expenditure cuts in the realm of, inter alia, public services, benefits and social security. This article considers the deterioration in the enjoyment of economic and social rights by Union inhabitants and particularly the anti-crisis strategy adopted by the European Union, which, as will be demonstrated, directly contributed to this deterioration. The stance of the three institutions was facilitated by the less than proactive, but improving, positioning of the Court of Justice of the European Union in case law, which will be assessed. It must be noted that it is not the three institutions acting alone in this process; the Member States are the ones who agree to the loans and their conditions and implement austerity measures on the ground. However, as will be reflected, the practical role and actual input of the countries themselves in this procedure is limited. The central theoretical tenet of the article is that the European Union is re-shifting its direction to the almost absolute adoption of an economic constitution, with little regard to its social counterpart. Within the aforementioned framework, this article seeks to assess the status of economic and social rights in a crisis-hit Union, provide a theoretical explanation for this occurrence and put forth possibilities for positive change, placing the protection and promotion of economic and social rights at the heart of any responses to crisis as a method to ensure their sustainable protection effectively.


Dr. Natalie Alkiviadou
Dr Natalie Alkiviadou is a Lecturer at the University of Central Lancashire Cyprus.
Article

Plain Language

A Promising Tool for Quality Legislation

Journal European Journal of Law Reform, Issue 4 2018
Keywords plain language, clarity, precision, accessibility, interpretation
Authors Kally K.L. Lam LLB
AbstractAuthor's information

    The hypothesis of this article is that plain language drafting with innovative drafting techniques can improve the quality of legislation. Further to this, the article tries to prove that quality legislation can also make the law more accessible to its general audience. With regard to quality, the article assesses plain language drafting with innovative drafting techniques using Helen Xanthaki’s criteria of quality in legislation, i.e. that it should be clear, precise and unambiguous. With regard to accessibility, it is defined broadly as to include readability. I will first assess whether plain language drafting with innovative drafting techniques can meet the expectations of its general audience and second discuss whether legislation drafted in plain language with innovative techniques passes the usability tests.


Kally K.L. Lam LLB
Kally K.L. Lam, LLB (University of Hong Kong), LLM (University of London) is Solicitor (Hong Kong).
Article

The adventure of the institutionalisation of restorative justice in Belgium

Journal The International Journal of Restorative Justice, Issue 2 2018
Keywords Restorative justice, institutionalisation, penal change, Belgium
Authors Anne Lemonne
AbstractAuthor's information

    At first glance, the adventure of restorative justice (RJ) in Belgium can be considered a real success story. At the turn of the 21st century, programmes oriented towards this justice model officially determined the criminal justice agenda. What were the key ideas that led to the conceptualisation of restorative justice in Belgium? Who were the main actors and agencies that carried them out? What were the main issues that led to the institutionalisation of restorative justice? What are the effects of its implementation on the Belgian criminal justice system in general? This article strives to present the main findings of a study on the basis of an extensive data collection effort and analysis targeting discourses and practices created by actors from the Belgian academic, scientific, political, administrative, social work and judicial spheres from the 1980s to 2015.


Anne Lemonne
Anne Lemonne is a researcher at the Department of Criminology, National Institute for Criminalistics and Criminology (NICC) and a member of the Centre de recherches criminologiques at the Université Libre de Bruxelles (ULB), Brussels, Belgium. Contact author: Anne.Lemonne@just.fgov.be.

Marie Keenan
Marie Keenan is a lecturer and researcher at the School of Social Policy, Social Work and Social Justice, University College Dublin, a forensic and systemic psychologist and a restorative justice practitioner, Dublin, Ireland. Contact author: marie.keenan@ucd.ie.
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