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Stephan Parmentier
Stephan Parmentier is a Professor of Sociology of Law, Crime and Human Rights at the Faculty of Law, KU Leuven, Belgium. Contact author: stephan.parmentier@kuleuven.be.

    On 12 October 2020, the Labour Court of Appeal of Ghent ruled that there was no indirect discrimination in the case of Mrs. Achbita, because a policy of neutrality does not disadvantage Muslim women who want to wear a headscarf more than any other worker. The Labour Court of Appeal was also of the opinion that the employer should not examine alternative job positions.


Gautier Busschaert
Gautier Busschaert is an attorney-at-law at Van Olmen & Wynant.

    In a recent case, the Danish Supreme Court addressed the question of what constitutes a comparable permanent employee in relation to discrimination against fixed-term employees. The Supreme Court ruled that even though the two groups of fixed-term and permanent singers at the Royal Opera Chorus of the Royal Danish Theatre performed almost the same tasks, their positions were not comparable as the singers’ qualifications and skills were different and, for this reason, the difference in terms and conditions was not discriminatory.


Christian K. Clasen
Christian K. Clasen is a partner at Norrbom Vinding, Copenhagen.
Article

Access_open Curbing Drug Use in the Seychelles through Regulation beyond Legislation

Journal European Journal of Law Reform, Issue 1 2021
Keywords Seychelles, legislative drafting, drug abuse, drug abuse legislation
Authors Amelie Nourrice
AbstractAuthor's information

    This article was written with the intention of figuring out why the Seychelles has been unable to douse the drug epidemic despite apparent vigorous efforts on the part of the government and of finding a new way of curtailing drug abuse without relying entirely on legislation, which although in some ways are necessary, has on its own, been incapable serving efficacy.
    The article introduces a four step pyramid giving effect to a responsive approach which Braithwaite suggests lays ‘emphasis on the pyramidal regulatory structure, on regulation through engagement and dialogue rather than by dictat, on bringing third parties into what had been previously characterized as a binary regulator/regulatee interaction, and on the concept of the benign big gun.’
    Thus, by building a drug user’s capacity and providing the apt restorative treatment before labelling him as an offender and subjecting him to incapacitation, the drug user is offered an opportunity at restoration.
    The criteria featuring in the pyramid must work in conjunction with the law as this combination and the use of various actors at each tier is a significant way to effectively execute government policies without that strict and direct regulator/regulatee relationship whereby the former would otherwise lord it over the latter.


Amelie Nourrice
Amelie Nourrice is Legislative Drafter, Office of the Attorney General, The Seychelles.

    In 2014, the ECJ was presented with a preliminary reference from the District Court in Kolding on the matter of whether EU law provides protection against discrimination on grounds of obesity with regard to employment and occupation. Following the ECJ’s ruling, first the District Court and later the High Court found that an employee’s obesity as such did not constitute a disability within the meaning of Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation since his obesity had not constituted a limitation or inconvenience in the performance of his job.


Christian K. Clasen
Christian K. Clasen is a partner at Norrbom Vinding.

    According to German law, leave entitlements of an employee shall in principle expire at the end of the calendar year or a permissible carryover period. However, based on the case law of the ECJ, this shall only apply if the employer has previously enabled and summoned the employee to take leave and the employee has nevertheless not taken it. But what happens if an employee is incapacitated for work for a longer period of time and therefore is unable to take his or her annual leave? Does the employer also have to inform this employee about their leave entitlement? The Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) recently had to deal with this question in two cases and now the ECJ will have to address this matter. This is because the BAG has asked the ECJ to decide whether and when an employee’s entitlement to paid leave can expire if an employee loses their ability to work during the course of the leave year, while the employee could have taken at least part of the annual leave before becoming incapacitated for work, but the employee was not properly informed by the employer about their leave entitlement.


Katharina Gorontzi
Katharina Gorontzi is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.

Nina Stephan
Nina Stephan is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.

Jule Rosauer
Jule Rosauer is a legal trainee at Luther Rechtsanwaltsgesellschaft mbH.
Case Reports

2021/2 Warning strike timing (HU)

Journal European Employment Law Cases, Issue 1 2021
Keywords Collective Agreements, Unions, Other Fundamental Rights
Authors Zsófia Oláh and Ildikó Rácz
AbstractAuthor's information

    This case involved an employer who claimed that a trade union organised an unlawful warning strike. The Curia (the highest judicial authority in Hungary) found that the trade union violated its obligation to cooperate with the employer according to Act No. 7 of 1989 on Strikes. The Curia and also the Regional Courts made some clear points on the question of the timing of a warning strike. The employer must be notified of a planned strike in sufficient time, which requirement also applies in the case of warning strikes. The time can be considered as sufficient if the employer is able to fulfil its rights to protect its property, prevent damage resulting from the strike, to carry out its duties to protect life and property, and to organise work accordingly. Failing this obligation, the warning strike is unlawful. The notice shall state the date and time that such action will commence.


Zsófia Oláh
Zsófia Oláh is a Partner at OPL Law Firm.

Ildikó Rácz
Ildikó Rácz is a Junior Associate at OPL Law Firm.

    Following ECJ case law, the Supreme Court of the Republic of Slovenia has ruled that a worker is entitled to compensation for unused annual leave in the event that the termination of employment has occurred 15 months after the end of the transfer period (i.e. the period for the transfer of the right to use annual leave) provided for in national legislation. The relevant transposition period is therefore three months longer than the transposition period set out in the Slovenian law.


Petra Smolnikar
Petra Smolnikar is the founder and manager at PETRA SMOLNIKAR LAW.

Tjaša Marinček
Tjaša Marinček is a student assistant at PETRA SMOLNIKAR LAW.

Chris Draper
Chris Draper, Ph.D., P.E., helps humans make fewer errors when using technology. This expertise was gained through a career of analysing and reducing the operational risk of how humans interface with technology systems in industries including automotive, aerospace, biofuels, petrochemical, commercial real estate, law enforcement and academia. Chris has been at the intersection of technology and dispute resolution since 2011 with roles including Managing Director of Trokt in Des Moines, Iowa, and as a Venture Partner with VU Venture Partners in San Francisco, California. With Trokt, Chris oversees the development and delivery of technologies that help equitably resolve and avoid disputes ranging from labour relations to construction arbitration, financial compliance to special needs education. As a Venture Partner, Chris evaluates the utility, viability and investability of innovative or unproven technologies as a partner to the FrontierTech evaluation team. Chris serves on numerous startup and non-profit boards, and has led initiatives that include his service as Chairman of the American Bar Association’s Online Dispute Resolution Task Force Working Group One, Co-Chair of the American Bar Association’s Section of Dispute Resolution Technology Committee and as a Fellow of the National Center for Technology and Dispute Resolution. Chris received a Bachelor of Science in Mechanical Engineering from the University of California at Berkeley and a Doctor of Philosophy from the University of Glasgow.
Article

Sustained restorative dialogue: exploring a proactive restorative process to help address campus sexual harm

Journal The International Journal of Restorative Justice, Issue Online First 2021
Keywords restorative justice, restorative dialogue, campus sexual violence, sexual harm, sociolinguistics
Authors Amy Giles-Mitson
AbstractAuthor's information

    Campus sexual harm is a widespread problem that demands approaches that focus on prevention, alongside those that respond to specific incidents of harm. This article presents the outcomes of a proactive initiative – a sustained restorative dialogue – that uses restorative circle practice in the university setting to better understand the issue of sexual harm, and identify practical steps that focus on its reduction. Speech data from post hoc interviews with participants of the dialogue is analysed in order to demonstrate the outcomes of the process, and highlight the value of using a dialogic model to address the issue on campus. Findings suggest that the process has very real potential for enhancing understanding and awareness and increasing communication on the topic, these being important precursors to transforming the cultural norms and campus climates that foster sexual harm.


Amy Giles-Mitson
Amy Giles-Mitson, PhD, is a researcher in linguistics and restorative justice at Victoria University of Wellington, New Zealand. Contact author: Amy Giles-Mitson at amyjo_gm@yahoo.com.


Claire Toumieux
Claire Toumieux and Susan Ekrami is partner at Allen & Overy LLP in Paris, www.allenovery.com.

Susan Ekrami
Susan Ekrami is a senior associate with Allen & Overy LLP in Paris, www.allenovery.com.
Article

Smart Contracts and Smart Dispute Resolution

Just Hype or a Real Game Changer?

Journal International Journal of Online Dispute Resolution, Issue 2 2020
Keywords smart contracts, blockchain, arbitration, dispute resolution, contract law, distributed ledger technology, internet of things, cyber law, technology, innovation
Authors Mangal Chauhan
AbstractAuthor's information

    This article explains the functioning of smart contracts and technology underlying blockchain. This contribution aims to compare smart contracts with traditional contracts and discuss their situation under the present contract law. It further discusses possible issues that may arise out of the application of smart contracts, for instance, coding errors and programming defects. It studies the possible application of smart contracts to specific fields, such as e-commerce and consumer transactions and possible disputes arising out of this application. It divides the smart contracts into categories based on their form and discusses legal issues in regard to their application.
    Against the common perception that smart contracts will replace the judicial enforcement of traditional contracts, it argues that smart contracts will not replace the system but are rather another form of contracts to be governed by it. In fact, the interplay of smart contracts and contractual law creates possible legal issues as to their validity, recognition and enforcement. It provides possible solutions as to the legal issues arising out of the application of smart contracts under present contract law. The study concludes that a robust and ‘smart’ dispute resolution mechanism is required for dealing with disputes arising out of the application of new technology. Online or blockchain arbitration and other online dispute resolution mechanisms are argued to be better suited to dealing with such disputes.


Mangal Chauhan
Mangal Chauhan is Risk Analyst (Global Entity Management) at TMF Group, Amsterdam, Netherlands. Master of Laws (LL.M.) in Comparative and International Dispute Resolution from Queen Mary University of London, United Kingdom.
Article

Access_open A Positive State Obligation to Counter Dehumanisation under International Human Rights Law

Journal Erasmus Law Review, Issue 3 2020
Keywords Dehumanisation, International Human Rights Law, Positive State obligations, Framework Convention for the Protection of National Minorities, International Convention on the Elimination of all forms of Racial Discrimination
Authors Stephanie Eleanor Berry
AbstractAuthor's information

    International human rights law (IHRL) was established in the aftermath of the Second World War to prevent a reoccurrence of the atrocities committed in the name of fascism. Central to this aim was the recognition that out-groups are particularly vulnerable to rights violations committed by the in-group. Yet, it is increasingly apparent that out-groups are still subject to a wide range of rights violations, including those associated with mass atrocities. These rights violations are facilitated by the dehumanisation of the out-group by the in-group. Consequently, this article argues that the creation of IHRL treaties and corresponding monitoring mechanisms should be viewed as the first step towards protecting out-groups from human rights violations. By adopting the lens of dehumanisation, this article demonstrates that if IHRL is to achieve its purpose, IHRL monitoring mechanisms must recognise the connection between dehumanisation and rights violations and develop a positive State obligation to counter dehumanisation. The four treaties explored in this article, the European Convention on Human Rights, the International Covenant on Civil and Political Rights, the Framework Convention for the Protection of National Minorities and the International Convention on the Elimination of all forms of Racial Discrimination, all establish positive State obligations to prevent hate speech and to foster tolerant societies. These obligations should, in theory, allow IHRL monitoring mechanisms to address dehumanisation. However, their interpretation of the positive State obligation to foster tolerant societies does not go far enough to counter unconscious dehumanisation and requires more detailed elaboration.


Stephanie Eleanor Berry
Stephanie Eleanor Berry is Senior Lecturer in International Human Rights Law, University of Sussex.
Article

Access_open How Far Should the State Go to Counter Prejudice?

A Positive State Obligation to Counter Dehumanisation

Journal Erasmus Law Review, Issue 3 2020
Keywords prejudice, soft paternalism, empathy, liberalism, employment discrimination, access to goods and services
Authors Ioanna Tourkochoriti
AbstractAuthor's information

    This article argues that it is legitimate for the state to practice soft paternalism towards changing hearts and minds in order to prevent behaviour that is discriminatory. Liberals accept that it is not legitimate for the state to intervene in order to change how people think because ideas and beliefs are wrong in themselves. It is legitimate for the state to intervene with the actions of a person only when there is a risk of harm to others and when there is a threat to social coexistence. Preventive action of the state is legitimate if we consider the immaterial and material harm that discrimination causes. It causes harm to the social standing of the person, psychological harm, economic and existential harm. All these harms threaten peaceful social coexistence. This article traces a theory of permissible government action. Research in the areas of behavioural psychology, neuroscience and social psychology indicates that it is possible to bring about a change in hearts and minds. Encouraging a person to adopt the perspective of the person who has experienced discrimination can lead to empathetic understanding. This, can lead a person to critically evaluate her prejudice. The paper argues that soft paternalism towards changing hearts and minds is legitimate in order to prevent harm to others. It attempts to legitimise state coercion in order to eliminate prejudice and broader social patterns of inequality and marginalisation. And it distinguishes between appropriate and non-appropriate avenues the state could pursue in order to eliminate prejudice. Policies towards eliminating prejudice should address the rational and the emotional faculties of a person. They should aim at using methods and techniques that focus on persuasion and reduce coercion. They should raise awareness of what prejudice is and how it works in order to facilitate well-informed voluntary decisions. The version of soft paternalism towards changing minds and attitudes defended in this article makes it consistent with liberalism.


Ioanna Tourkochoriti
Ioanna Tourkochoriti is Lecturer Above the Bar, NUI Galway School of Law.

Kristin Henrard
Kristin Henrard is Professor International Human Rights and Minorities, Erasmus School of Law, Rotterdam, the Netherlands.

    The dismissal of an employee for gross misconduct was unfair because the investigating officer failed to share significant new information with the manager conducting the disciplinary hearing who decided to dismiss, the Employment Appeal Tribunal has ruled.


Ludivine Gegaden
Ludivine Gegaden is an Associate at Lewis Silkin LLP.
Article

Investment Arbitration and the Public Interest

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords BIT, ILA, ISDS, unclean hands, regulatory chill
Authors Gábor Hajdu
AbstractAuthor's information

    The study focuses on analyzing conflicts between (international) investment arbitration and the public interest, dividing its contents into five substantive sections. First, it summarizes the common characteristics of international investment arbitration (distinguishing procedural and substantive elements), followed by its most pressing issues (including frequent criticism such as lack of consistency, asymmetrical proceedings, regulatory chill, etc.). Afterwards, selected investment arbitration cases are examined, grouped based on which areas of public interest they affected (environmental protection, employee rights, public health). These cases all hold relevance and offer different insights into the workings of investment arbitration, which serve to illuminate the complex interplay between foreign investor and public interest. The cases also provide the foundation for the study’s conclusions, where key observations are made on the central subjects.


Gábor Hajdu
Gábor Hajdu: PhD student, University of Szeged.
Article

The Temporal Effect and the Continuance in Force of the Treaty of Trianon

A Hundred Years Later

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords peace treaties, Trianon Peace Treaty, termination of treaties, temporal effect of international treaties, law of international treaties
Authors Norbert Tóth
AbstractAuthor's information

    The 1920 Trianon Peace Treaty ended World War I between Hungary and its belligerents. Nonetheless, one hundred years have passed since then, yet this peace treaty is still unsettling to many, causing misbelief, hatred, anger and misunderstanding both in Hungary and its neighboring countries. To unearth the temporal aspects of the Trianon Peace Treaty, more precisely, to identify exactly what obligations remain in force following this rather hectic century, it is indispensable to study the temporal effect of this agreement. The present article aims at arriving at a conclusion in relation to several misbeliefs held with respect to the Trianon Peace Treaty as well as the issue of its termination.


Norbert Tóth
Norbert Tóth: associate professor of law, National University of Public Service, Budapest.
Article

The CETA Investment Court and EU External Autonomy

Did Opinion 1/17 Broaden the EU’s Room for Maneuver in External Relations?

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords EU investment treaties, investment arbitration, EU external relations, EU treaty-making capacity, level of protection of public policy interests
Authors Wolfgang Weiss
AbstractAuthor's information

    The present contribution analyzes Opinion 1/17 of the CJEU on CETA, which, in a surprisingly uncritical view of conceivable conflicts between the competences of the CETA Investment Tribunal on the one hand and those of the CJEU on the other hand, failed to raise any objections. First reactions welcomed this opinion as an extension of the EU’s room for maneuver in investment protection. The investment court system under CETA, however, is only compatible with EU law to a certain extent. This was made clear by the Court in the text of the opinion, and the restrictions identified are likely to confine the leeway for EU external contractual relations. Owing to their fundamental importance, these restrictions, inferred by the CJEU from the autonomy of the Union legal order form the core of this contribution. In what follows, the new emphasis in the CETA Opinion on the external autonomy of Union law will be analyzed first (Section 2). Subsequently, the considerations of the CJEU regarding the delimitation of its competences from those of the CETA Tribunal will be critically examined. The rather superficial analysis of the CJEU in the CETA Opinion stands in stark contrast to its approach in earlier decisions as it misjudges problems, only seemingly providing for a clear delimitation of competences (Section 3). This is followed by an exploration of the last part of the CJEU’s autonomy analysis, in which the CJEU tries to respond to the criticism of regulatory chill (Section 4). Here, by referring to the unimpeded operation of EU institutions in accordance with the EU constitutional framework, the CJEU identifies the new restrictions for investment protection mechanisms just mentioned. With this, the CJEU takes back the earlier comprehensive affirmation of the CETA Tribunal’s jurisdiction with regard to calling into question the level of protection of public interests determined by the EU legislative, which raises numerous questions about its concrete significance, consequence, and scope of application.


Wolfgang Weiss
Wolfgang Weiss: professor of law, German University of Administrative Sciences, Speyer.
Article

The CETA Opinion of the CJEU

Redefining the Contours of the Autonomy of the EU Legal Order

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords CETA, settlement of investment disputes, autonomy of EU law, Achmea, multilateral investment court
Authors Tamás Szabados
AbstractAuthor's information

    In its Opinion 1/17, the CJEU confirmed that the investor-state dispute settlement mechanism of the Comprehensive Economic and Trade Agreement (CETA or the Agreement) entered into between Canada and the EU is compatible with EU law. In the view of the CJEU, the CETA does not have an adverse effect on the autonomy of the EU legal order; it does not violate the principle of equality, the effectiveness of EU law and the right of access to an independent tribunal. Some of the findings of the Opinion are, however, controversial. In particular, it is questionable whether the autonomy of EU law is indeed unaffected by the Agreement, because it seems that in certain situations an interpretation of EU law is hardly avoidable for the CETA Tribunal and the Appellate Tribunal to make. With its Opinion, the CJEU not only lends support to similar trade and investment protection agreements, but it also paves the way for the participation of the EU in creating a multilateral investment court as long as the limits set by the CJEU are observed.


Tamás Szabados
Tamás Szabados: associate professor of law, ELTE Law School, Budapest.
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