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Article

Access_open Requirements upon Agreements in Favour of the NCC and the German Chambers – Clashing with the Brussels Ibis Regulation?

Journal Erasmus Law Review, Issue 1 2019
Keywords international commercial courts, the Netherlands Commercial Court (NCC), Chambers for International Commercial Disputes (Kammern für internationale Handelssachen), Brussels Ibis Regulation, choice of court agreements, formal requirements
Authors Georgia Antonopoulou
AbstractAuthor's information

    In recent years, the Netherlands and Germany have added themselves to the ever-growing number of countries opting for the creation of an international commercial court. The Netherlands Commercial Court (NCC) and the German Chambers for International Commercial Disputes (Kammern für internationale Handelssachen, KfiH) will conduct proceedings entirely in English and follow their own, diverging rules of civil procedure. Aspiring to become the future venues of choice in international commercial disputes, the NCC law and the legislative proposal for the establishment of the KfiH allow parties to agree on their jurisdiction and entail detailed provisions regulating such agreements. In particular, the NCC requires the parties’ express and in writing agreement to litigate before it. In a similar vein, the KfiH legislative proposal requires in some instances an express and in writing agreement. Although such strict formal requirements are justified by the need to safeguard the procedural rights of weaker parties such as small enterprises and protect them from the peculiarities of the NCC and the KfiH, this article questions their compliance with the requirements upon choice of court agreements under Article 25 (1) Brussels Ibis Regulation. By qualifying agreements in favour of the NCC and the KfiH first as functional jurisdiction agreements and then as procedural or court language agreements this article concludes that the formal requirements set by the NCC law and the KfiH proposal undermine the effectiveness of the Brussels Ibis Regulation, complicate the establishment of these courts’ jurisdiction and may thus threaten their attractiveness as future litigation destinations.


Georgia Antonopoulou
PhD candidate at Erasmus School of Law, Rotterdam.
Article

Alternative Forms of Regulation: Are They Really ‘Better’ Regulation?

A Case Study of the European Standardization Process

Journal European Journal of Law Reform, Issue 1-2 2017
Keywords Better Regulation, co-regulation, standardization, judicial review
Authors Mariolina Eliantonio
AbstractAuthor's information

    One of the commitments of the Better Regulation Package is to consider ‘both regulatory and well-designed non-regulatory means’. Such mechanisms include co-regulation, i.e. administrative processes which involve the participation of private parties, such as the social partners or the standardization bodies, as (co-)decision makers. While the involvement of private parties in European Union (EU) administrative governance has the clear advantage of delivering policies which are based on the expertise of the regulatees themselves, private-party rule-making raises significant concerns in terms of its legitimacy. This article aims to discuss the gaps of judicial protection which exist in co-regulation mechanisms, by taking the case study of the standardization process. After an introduction to the issue of co-regulation and the rationale for the involvement of private parties in EU administrative governance, the standardization process will be examined and the mechanisms of judicial supervision will be reviewed in order to establish the possible gaps of judicial protection.


Mariolina Eliantonio
Dr. M. Eliantonio is an associate professor of European Administrative Law at the Law Faculty of Maastricht University, The Netherlands.
Article

Mondiale standaarden of race-to-the-bottom?

Een analyse van regelgevende samenwerking in de onderhandelingen over een Trans-Atlantisch Vrijhandels- en Investeringsakkoord (TTIP)

Journal Res Publica, Issue 3 2015
Keywords trade, European Union, TTIP, regulatory convergence, global standards, race-to-the-bottom
Authors Ferdi De Ville and Niels Gheyle
AbstractAuthor's information

    Since the summer of 2013, the European Union (EU) and the United States (US) are negotiating the Transatlantic Trade and Investment Partnership (TTIP). Especially for the EU, this is one of the policy priorities for the present term. TTIP is supposed to bring much-needed growth and jobs and to enable the EU to remain a global standardsetter, all without lowering EU levels of regulatory protection. Opponents of the agreement, however, fear that TTIP would lead to a regulatory race-to-the-bottom. This article scrutinizes these claims through a detailed document analysis complemented with a number of interviews. It is embedded in the political-economic literature on the trade-regulation nexus as well as on exporting standards and secondary literature on past EU-US regulatory cooperation attempts. We argue that the effects of TTIP are dependent on the concrete mode of regulatory convergence chosen in the agreement. If, as seems presently most plausible, the negotiators opt for bilateral mutual recognition as their preferred mode for regulatory convergence, the plausibility that TTIP would lead to global standards is reduced. The risk of running into a regulatory race-to-the-bottom increases in that case, but will ultimately depend on the number of sectors where this mode is applicable and under which conditions this is applied. We conclude that the probability is low that the TTIP agreement being negotiated will lead either to a significant increase in global standards or to a direct large-scale race-to-the-bottom.


Ferdi De Ville
Ferdi De Ville is docent Europese Politiek aan het Centrum voor EU-Studies van de Universiteit Gent. Zijn onderzoeksbelangstelling gaat voornamelijk uit naar Europees handelsbeleid en de politiek-economische gevolgen van de eurocrisis.

Niels Gheyle
Niels Gheyle is als doctoraatsonderzoeker verbonden aan het Centrum voor EU-Studies. Zijn onderzoek richt zich op de politisering van Europees handelsbeleid, met een specifieke focus op het vrijhandelsverdrag tussen de VS en de EU (TTIP).
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.

Jacques Pelkmans
Council Member of the WRR (Netherlands Scientific Council for Government Policy) in The Hague, as well as Norsk-Hydro/Jan Tinbergen Chair and Director of the Economic Studies Department of the College of Europe, Brugge.
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