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Article

Access_open Joinder of Non-Consenting Parties: The Singapore International Commercial Court Approach Meets Transnational Recognition and Enforcement

Journal Erasmus Law Review, Issue 1 2019
Keywords international commercial courts, international business courts, third parties, third party joinder, recognition and enforcement
Authors Drossos Stamboulakis and Blake Crook
AbstractAuthor's information

    In this article we explore the approach of the Singapore International Commercial Court (the ‘SICC’) to jurisdiction and joinder of non-consenting parties, and way that any resulting judgments are likely to be treated by foreign enforcing courts. This novel juncture arises as international commercial courts, such as the SICC, rely predominantly upon party autonomy to enliven their jurisdiction over disputants. This does not require any territorial link of the parties or the dispute to the host jurisdiction (Singapore). At the same time, however, the SICC is granted a mandate under Singaporean law to join non-consenting parties, again with no necessary territorial link. Where such joinder occurs, any resulting judgment is likely to face significant difficulties if recognition and enforcement is sought outside of Singapore. To support this argument, we first set out the ways in which non-consenting disputants may be joined to proceedings before the SICC, and offer some initial thoughts on how these powers are likely to be exercised. Second, we argue that any such exercise of jurisdiction – that lacks either territorial or consent-based jurisdiction grounds – is unlikely to gain support internationally, by reference to transnational recognition and enforcement approaches, and the SICC’s most likely recognition and enforcement destinations. Finally, we offer some concluding remarks about the utility of international commercial court proceedings against non-consenting parties, including the possibility they may impact on domestic recognition and enforcement approaches in foreign States.


Drossos Stamboulakis
B.Com, LLB (Hons) (Monash); LLM (EMLE); Law Lecturer, USC School of Law (University of the Sunshine Coast, Australia)

Blake Crook
PhD Candidate, Faculty of Law (University of Melbourne, Australia), B.Com (Acc), LLB (Hons) (Sunshine Coast).
Editorial

Access_open International Business Courts in Europe and Beyond: A Global Competition for Justice?

Journal Erasmus Law Review, Issue 1 2019
Keywords international business courts, justice innovation, justice competition, global commercial litigation, private international law
Authors Xandra Kramer and John Sorabji
Author's information

Xandra Kramer
Xandra Kramer, Professor of Private Law at Erasmus University Rotterdam, and of Private International Law, Utrecht University.

John Sorabji
John Sorabji, Senior Teaching Fellow, UCL, London/Principal Legal Adviser to the Lord Chief Justice and the Master of the Rolls.
Article

Access_open On the Humanity of the Enemy of Humanity

A Response to My Critics

Journal Netherlands Journal of Legal Philosophy, Issue 2 2018
Keywords hostis generis humani, humanity, International criminal justice, piracy
Authors David Luban
AbstractAuthor's information

    Antony Duff, Marc de Wilde, Louis Sicking, and Sofia Stok offer several criticisms of my “The Enemy of All Humanity,” but central to all of them is concern that labeling people hostis generis humani dehumanizes them, and invites murder or extrajudicial execution. In response I distinguish political, legal, and theoretical uses of the ancient label. I agree with the critics that the political use is toxic and the legal use is dispensable. However, the theoretical concept is crucial in international criminal law, which rests on the assumptions that the moral heinousness of core crimes makes them the business of all humanity. Furthermore, far from dehumanizing their perpetrators, calling them to account before the law recognizes that they are no different from the rest of humanity. This response also offers rejoinders to more specific objections raised by the critics.


David Luban
David Luban is University Professor in Law and Philosophy at Georgetown University.
Article

Access_open The Enemy of All Humanity

Journal Netherlands Journal of Legal Philosophy, Issue 2 2018
Keywords hostis generis humani, piracy, crimes against humanity, universal jurisdiction, radical evil
Authors David Luban
AbstractAuthor's information

    Trationally, the term “enemy of all humanity” (hostis generis humani) referred to pirates. In contemporary international criminal law, it refers to perpetrators of crimes against humanity and other core. This essay traces the evolution of the concept, and then offers an analysis that ties it more closely to ancient tyrants than to pirates. Some object that the label is dehumanizing, and justifies arbitrary killing of the “enemy of humanity.” The essay admits the danger, but defends the concept if it is restricted to fair trials. Rather than dehumanizing its target, calling the hostis generis humani to account in a court of law is a way of recognizing that radical evil can be committed by humans no different from any of us.


David Luban
David Luban is University Professor in Law and Philosophy at Georgetown University.
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.

    Artificial intelligence is an emerging technology which is anticipated to revolutionize society and industry. Artificial intelligence also presents a potential technological component to ensure the cyber and physical security of space assets. However, the use of artificial intelligence in space assets may conflict with certain legal obligations or duties imposed by the space law treaty regime.
    Outer Space Treaty Article VIII obligates a State to retain control over a space object it launches. Using artificial intelligence in space assets presents the question of whether such reliance abdicates a State’s obligation to retain control over a space object it launched or which is registered to it. If so, then issues will exist regarding how a State may balance the use of artificial intelligence in space assets with its obligations under the Outer Space Treaty. For instance, in the emerging autonomous or driverless motor vehicle technology, some jurisdictions in the United States are contemplating laws which mandate human ability to override or otherwise intervene in decision making by artificial intelligence in certain circumstances.
    Similarly, Article III of the Liability Convention imposes liability based on a State’s fault or fault of persons for whom the State is responsible. The use of artificial intelligence in space assets presents the possibility of negating Article III’s fault-based concept. The unsettled liability issues associated with autonomous motor vehicles may very well foreshadow liability and fault allocation issues arising from the use of artificial intelligence in space assets.
    This paper will examine whether the use of artificial intelligence in space assets conforms with a State’s obligation under Outer Space Treaty Article VIII and Liability Convention Article III and analyze what measures, if any, may be necessary to ensure that the provisions are not undermined by the use of artificial intelligence in space assets.


George Anthony Long
Managing Member, Legal Parallax, LLC, United States. gal@legalparallax.com.

Stewart McCulloch
Stewart McCulloch is Managing director of NuvaLaw UK Limited.

    Ongeveer 20% van de echtscheidingen loopt uit op een zogenaamde conflict- of vechtscheiding. Om deze complexe echtscheidingszaken effectief aan te pakken, dienen professionals in het veld te beschikken over wetenschappelijk onderbouwde kennis over werkzame interventies. Mediation wordt vaak beschouwd als dé oplossing voor conflictscheidingen. Wetenschappelijk onderzoek laat echter een beperkte effectiviteit zien van mediation bij conflictscheidingen. Dit heeft onder andere te maken met de hoge prevalentie (rond 40%) van huiselijk geweld in conflictscheidingsgezinnen.
    In dit onderzoek is de visie van Nederlandse professionals over conflictscheidingen onderzocht en vergeleken met de kennis uit de wetenschappelijke literatuur. Met behulp van een online vragenlijst testten we het kennisniveau van 863 professionals die werken met conflictscheidingsgezinnen. Dit waren advocaten, professionals uit de jeugdzorg/-bescherming, mediators en professionals uit de GGZ.
    Professionals behaalden een gemiddelde score van 6,5 correcte antwoorden op een totaal van 11, waarbij juridische professionals significant beter scoorden dan sociale professionals. Slechts 17% van de professionals wist dat in bijna de helft van de conflictscheidingen huiselijk geweld een rol speelt. 55% van de professionals adviseerde in een geval van een al 7 jaar durende conflictscheiding mediation als effectieve interventie. 46% van de respondenten overschatte de prevalentie van valse beschuldigingen van huiselijk geweld en kindermishandeling bij conflictscheidingen.
    In opleidingen voor Nederlandse juridische en sociale professionals die werken met conflictscheidingsgezinnen dient meer aandacht besteed te worden aan wetenschappelijke kennis, zodat professionals handelen op basis van kennis in plaats van persoonlijke opvattingen en mythen.
    ---
    High conflict divorces are among the 20% of divorce cases that continue to escalate over time. In order to help solve these complex divorce cases, it is important that professionals in the field possess evidence-based knowledge to provide effective interventions. One of these possible interventions is mediation, which is often seen as a panacea for high-conflict divorce (HCD) cases. However, scientific research has shown limited effectiveness of mediation in HCD cases. This is partially associated with the high prevalence (around 40%) of domestic violence in HCD.
    The present study examined professionals’ perspectives on high conflict-divorce cases and compared their views with the available scientific evidence. By means of a web-survey, we tested the knowledge of different professional groups (N = 863) who work with HCD families. The sample consisted of lawyers, child welfare/child protection professionals, mediators and mental health professionals.
    The results showed that professionals on average gave 6.5 correct responses out of 11 questions in total and that legal professionals scored significantly better than social professionals. Only 17% of the professionals were aware that in almost half of all high-conflict divorce cases domestic violence is a problem. For a high-conflict divorce case spanning 7 years, mediation was advised as an effective intervention by 55% of professionals. 46% of respondents overestimated the prevalence of false allegations of child abuse in HCD cases.
    More attention to scientific knowledge on HCD in the educational curricula for Dutch legal and social professionals is needed, in order to assure that their professional activities and decision making are based on scientific evidence instead of personal biases and myths.


Prof. dr. Corine de Ruiter
Prof. dr. Corine de Ruiter is a licensed clinical psychologist (BIG) in The Netherlands. She serves as professor of Forensic Psychology at Maastricht University. She also has a private practice. Her research focuses on the interface between psychopathology and crime. She has a special interest in the prevention of child abuse and intimate partner violence because they are both very common and often overlooked in practice.

Brigitte van Pol Msc
Brigitte van Pol studied Psychology and Law at Maastricht University. Her involvement in this research dates from her Master’s thesis on the role of mediation in high conflict divorce. The authors would like to thank the participants for their time and effort in completing our websurvey.
Article

Access_open Religion Ain’t Sacrosanct

How to Fight Obsolete Accounts of Religious Freedom

Journal Netherlands Journal of Legal Philosophy, Issue 3 2015
Keywords Hobby Lobby, Hosanna-Tabor, tolerance-leaning liberalism, equality-leaning liberalism
Authors Roland Pierik
AbstractAuthor's information

    This paper is largely an endorsement and a further elaboration of Cohen’s critical discussion of the Hobby Lobby and Hosanna-Tabor cases and the conceptual overstretch of religious freedom they embody. I disagree with Cohen, however, on the proper interpretation of this debate. Cohen construes the ominous Court cases as an anti-liberal attack on the liberal state order. My main thesis is that the root of this dispute can be traced back to a fault line within liberalism between a more tolerance-leaning and a more equality-leaning tradition. I argue that the ominous cases are instances of the tolerance-leaning tradition in liberalism, which once was characteristic of the liberal tradition. Still, I agree with Cohen that this tradition should be rejected because it reverts to an obsolete interpretation of religious freedom that defends unwarranted privileges for certain groups that are out of sync with the egalitarian underpinnings of contemporary liberal political orders.


Roland Pierik
Roland Pierik is Associate Professor of Legal Philosophy at the University of Amsterdam Law School.
Article

Access_open The Role of Private International Law in Corporate Social Responsibility

Journal Erasmus Law Review, Issue 3 2014
Keywords CSR, conflicts of law, Kiobel, Shell
Authors Geert Van Calster Ph.D.
AbstractAuthor's information

    This contribution firstly reviews developments in the EU and in the United States on corporate social responsibility and conflict of laws. It concludes with reference to some related themes, in particular on the piercing of the corporate veil and with some remarks on compliance strategy, and compliance reality, for corporations.


Geert Van Calster Ph.D.
Geert van Calster is professor at the University of Leuven and Head of Leuven Law's department of European and international law.

    Under the Kafala system, which applies in all Arab countries, migrant workers must attain a work entry visa and residential permit, which is possible only if they are working for a domestic institution or corporation or a citizen of the respective country. Each and every employer is required, based on the Kafala system, to adopt all legal and economic responsibilities for all of the employer's workers during their contractual period. By giving wide-ranging powers and responsibilities unilaterally to employers, the Kafala system subjects workers to abysmal and exploitative working conditions, violence, and human rights abuses. Some of these problems have recently made headlines in the United States and in Europe in connection with the campus being built by New York University in Abu Dhabi. While NYU imposed a code of labor standards on its direct contractual partners, it claimed to have no means of controlling subcontractors. Nor did NYU try very hard, it seems, to verify compliance even by its direct contractual partners.
    Migrant workers make up at least 30 percent of the population of Saudi Arabia and 49 percent of Saudi Arabia's entire workforce. Employers control Saudi Arabia's Kafala system, in which migrant workers are the weakest link. Studies and international organizations report that foreigners employed in Saudi Arabia have returned home with many complaints. In 2006, Saudi Arabia re-examined all laws including its labor law. This re-examination resulted in abolishing some terms used in labor law, such as the kafala system, but the system remains as is. The new labor law includes many positive changes, but not enough according to the assessment of local and international scholars and observers. In this paper, I will reveal laws, practices and patterns that essentially cause the vulnerability of migrant workers, and I will suggest effective alternative strategies. This paper should contribute to our growing understanding of issues of concern for migrant workers in Saudi Arabia and other Arab countries and help to develop specific and necessary legal and institutional responses.


Majed M. Alzahrani
LL.M, Indiana University, Robert H. McKinney School of Law. The author would like to thank Professor Frank Emmert for advice and guidance in the production of this article.
Article

Access_open A Turn to Legal Pluralism in Rule of Law Promotion?

Journal Erasmus Law Review, Issue 3/4 2013
Keywords legal pluralism, rule of law promotion, legal reform, customary law, non-state legal systems, donor policy
Authors Dr.mr Ronald Janse
AbstractAuthor's information

    Over the past 25 years, international organizations, NGOs and (mostly Western) states have spent considerable energy and resources on strengthening and reforming legal systems in developing countries. The results of these efforts have generally been disappointing, despite occasional successes. Among donors, one of most popular explanations of this failure in recent years is that rule of law promotion has wrongly focused almost exclusively on strengthening the formal legal system. Donors have therefore decided to 'engage' with informal justice systems. The turn to legal plu‍ra‍lism is to be welcomed for various reasons. But it is also surprising and worrisome. It is surprising because legal pluralism in developing countries was a fact of life before rule of law promotion began. What made donors pursuing legal reform blind to this reality for so long? It is worrisome because it is not self-evident that the factors which have contributed to such cognitive blindness have disappeared overnight. Are donors really ready to refocus their efforts on legal pluralism and 'engage' with informal justice systems? This paper, which is based on a review of the literature on donor engamenet with legal pluralism in so-called conflict affected and fragile states, is about these questions. It argues that 7 factors have been responsible for donor blindness regarding legal pluralism. It questions whether these factors have been addressed.


Dr.mr Ronald Janse
Ronald Janse is Associate Professor of Law, University of Amsterdam, The Netherlands.

George Anthony Long
Scottsdale, Arizona, USA, gal@spacejurist.com.
Article

Access_open De liberale canon: argumenten voor vrijheid

Journal Netherlands Journal of Legal Philosophy, Issue 2 2012
Keywords enforcement of morals, liberalism, liberty, political liberalism, Rawls
Authors Alex Bood
AbstractAuthor's information

    This article examines how a liberal public morality can be most successfully defended against perfectionism. First of all the five most important liberal arguments for freedom are taken from what is called the liberal canon: a number of characteristic works of John Locke, Immanuel Kant, John Stuart Mill, Isaiah Berlin, Joseph Raz, Ronald Dworkin, and John Rawls. These five arguments are identified as: social and political realism, respect for autonomy, fallibility of ideas, pluralism, and respect for reasonableness. Next, the persuasiveness of these arguments is assessed, starting with the argument of respect for reasonableness, which is at the heart of Rawls’s political liberalism. It is concluded that in itself this argument is not strong enough to persuade perfectionists. A powerful defence of a liberal public morality needs the other arguments for freedom as well. Finally, the paper outlines how these other arguments can strengthen the argument of respect for reasonableness in a coherent manner.


Alex Bood
Alex Bood is Research Manager at the Dutch Public Prosecution’s Office for Criminal Law Studies (WBOM).

Federico Ferretti
Avvocato and Lecturer, Brunel Law School, Brunel University, UK.

Barry Rider
Director, Institute of Advanced Legal Studies, University of London, Professor of Law, University of London and Fellow of Jesus College, Cambridge.

Nikos Passas
Nikos Passas, Philadelphia. The author of this article would like to acknowledge the financial support of Temple University, which allowed him to concentrate exclusively on his research activities during a sabbatical leave.
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