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Article

Access_open The Common Law Remedy of Habeas Corpus Through the Prism of a Twelve-Point Construct

Journal Erasmus Law Review, Issue 2 2021
Keywords Habeas corpus, common law, detainee, Consitution, liberty
Authors Chuks Okpaluba and Anthony Nwafor
AbstractAuthor's information

    Long before the coming of the Bill of Rights in written Constitutions, the common law has had the greatest regard for the personal liberty of the individual. In order to safeguard that liberty, the remedy of habeas corpus was always available to persons deprived of their liberty unlawfully. This ancient writ has been incorporated into the modern Constitution as a fundamental right and enforceable as other rights protected by virtue of their entrenchment in those Constitutions. This article aims to bring together the various understanding of habeas corpus at common law and the principles governing the writ in common law jurisdictions. The discussion is approached through a twelve-point construct thus providing a brief conspectus of the subject matter, such that one could have a better understanding of the subject as applied in most common law jurisdictions.


Chuks Okpaluba
Chuks Okpaluba, LLB LLM (London), PhD (West Indies), is a Research Fellow at the Free State Centre for Human Rights, University of the Free State, South Africa. Email: okpaluba@mweb.co.za.

Anthony Nwafor
Anthony O. Nwafor, LLB, LLM, (Nigeria), PhD (UniJos), BL, is Professor at the School of Law, University of Venda, South Africa. Email: Anthony.Nwafor@univen.ac.za.
Article

The Mediation Disruption

A Path to Better Conflict Resolution through Interdisciplinarity and Cognitive Diversity

Journal Corporate Mediation Journal, Issue 2 2021
Keywords interdisciplinarity, social psychology, diversity and inclusivity, disruption
Authors Mark T. Kawakami
AbstractAuthor's information

    As the COVID-19 pandemic continues to expose obsolete business practices and force companies into uncharted territories, a disruption worth (re)considering for companies is to replace their over-reliance on litigation with mediation. In order for mediators to make this transition more appetising for businesses, we must train mediators to: 1) think more holistically through interdisciplinary training; and 2) foster cognitive diversity amongst our pool.


Mark T. Kawakami
Mark T. Kawakami is assistant professor of Private Law at the Faculty of Law, Maastricht University.
Article

Access_open Can Non-discrimination Law Change Hearts and Minds?

Journal Erasmus Law Review, Issue 3 2020
Keywords law and society, social change, discrimination, non-discrimination law, positive action
Authors Anita Böcker
AbstractAuthor's information

    A question that has preoccupied sociolegal scholars for ages is whether law can change ‘hearts and minds’. This article explores whether non-discrimination law can create social change, and, more particularly, whether it can change attitudes and beliefs as well as external behaviour. The first part examines how sociolegal scholars have theorised about the possibility and desirability of using law as an instrument of social change. The second part discusses the findings of empirical research on the social working of various types of non-discrimination law. What conclusions can be drawn about the ability of non-discrimination law to create social change? What factors influence this ability? And can non-discrimination law change people’s hearts and minds as well as their behaviour? The research literature does not provide an unequivocal answer to the latter question. However, the overall picture emerging from the sociolegal literature is that law is generally more likely to bring about changes in external behaviour and that it can influence attitudes and beliefs only indirectly, by altering the situations in which attitudes and opinions are formed.


Anita Böcker
Anita Böcker is associate professor of Sociology of Law at Radboud University, Nijmegen.
Article

Access_open Positive State Obligations under European Law: A Tool for Achieving Substantive Equality for Sexual Minorities in Europe

Journal Erasmus Law Review, Issue 3 2020
Keywords Positive obligations, sexual minorities, sexual orientation, European law, human rights
Authors Alina Tryfonidou
AbstractAuthor's information

    This article seeks to examine the development of positive obligations under European law in the specific context of the rights of sexual minorities. It is clear that the law should respect and protect all sexualities and diverse intimate relationships without discrimination, and for this purpose it needs to ensure that sexual minorities can not only be free from state interference when expressing their sexuality in private, but that they should be given the right to express their sexuality in public and to have their intimate relationships legally recognised. In addition, sexual minorities should be protected from the actions of other individuals, when these violate their legal and fundamental human rights. Accordingly, in addition to negative obligations, European law must impose positive obligations towards sexual minorities in order to achieve substantive equality for them. The article explains that, to date, European law has imposed a number of such positive obligations; nonetheless, there is definitely scope for more. It is suggested that European law should not wait for hearts and minds to change before imposing additional positive obligations, especially since this gives the impression that the EU and the European Court of Human Rights (ECtHR) are condoning or disregarding persistent discrimination against sexual minorities.


Alina Tryfonidou
Alina Tryfonidou is Professor of Law, University of Reading.
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.
Article

Building Legislative Frameworks

Domestication of the Financial Action Task Force Recommendations

Journal European Journal of Law Reform, Issue 3 2020
Keywords domestication, legislative processes, functionality, efficacy
Authors Tshepo Mokgothu
AbstractAuthor's information

    As the international financial framework develops it has brought with it dynamic national legislative reforms. The article establishes how the domestication of the Financial Action Task Force (FATF) Recommendations directly affects national legislative processes as the FATF mandate does not have due regard to national legislative drafting processes when setting up obligations for domestication. The article tests the FATF Recommendations against conventional legislative drafting processes and identifies that, the proposed structures created by the FAFT do not conform to traditional legislative drafting processes. Due regard to functionality and efficacy is foregone for compliance. It presents the experience of three countries which have domesticated the FATF Recommendations and proves that the speed at which compliance is required leads to entropic legislative drafting practices which affects harmonisation of national legislation.


Tshepo Mokgothu
Tshepo Mokgothu, LLB (University of Botswana), LLM (University of Kent) is a recipient of the Joint Master in Parliamentary Procedures and Legislative Drafting and a Senior Legislative Drafter at The Attorney General’s Chambers in Botswana.
Article

Regional Differentiation in Europe, between EU Proposals and National Reforms

Journal European Journal of Law Reform, Issue 3 2020
Keywords regional differentiation, regional disparities, autonomy, regionalism, subsidiarity, European Union, multilevel governance
Authors Gabriella Saputelli
AbstractAuthor's information

    Regions and local governments play a very important role in the application of European law and in the implementation of European policies. The economic crisis of 2008 has accentuated territorial and social differentiation and highlighted the negative effects of globalization. This circumstance has created resentment among peripheral and marginal communities in the electoral results, but also a strong request for involvement, participation and sometimes independence from territories. These developments raise new questions about the relationship between the EU and the Regions and, more widely, about the role of subnational entities in the EU integration process, as they are the institutions nearest to citizens.
    The aim of this article is to contribute to that debate by exploring the following research question: ‘is subnational differentiation positive or negative for European integration?’ Towards a possible answer, two perspectives are examined from a constitutional law approach. From the top down, it examines the attitude of the EU towards regional differentiation, from the origins of the EU integration process and its development until recent initiatives and proposals. From the bottom up, it analyses the role of subnational entities by presenting the Italian experience, through the reforms that have been approved over the years until the recent proposal for asymmetric regionalism. The aim is to understand whether regional differentiation still represents a positive element for the European integration process, considering the role that subnational entities play in many policies and the challenges described earlier.


Gabriella Saputelli
Researcher of Public Law at the Institute for the Study of Regionalism, Federalism and Self Government (ISSiRFA) of the National Research Council (CNR).
Article

The ECB’s Independence and the Principle of Separation

Journal European Journal of Law Reform, Issue 3 2020
Keywords ECB, Banking Supervision, Banking Supervision Centralization, Prudential Supervision, European Union, EU Law, Banking Union, Central Banking Independence, SSMR, SSMR
Authors Pamela Nika
AbstractAuthor's information

    This article addresses the question of whether the European Central Bank’s (ECB’s) involvement in banking supervision is compatible with its independent status as provided by the European Union’s (EU’s) primary law, specifically with reference to the principle of separation between the ECB’s monetary policy and supervisory powers. It is found that the Single Supervisory Mechanism (SSM) Regulation provides the ECB with a set of prerequisites in pursuit of its supervisory objectives under a high level of independence. However, the article argues that the current EU regulatory framework poses risks to the overall independence of the ECB. In particular, the principle of separation, as one of the mechanisms aimed at safeguarding the ECB’s independence, is not fully achieved. In addition, the boundaries and application of macro-prudential operation of the ECB in both the SSM and European Systemic Risk Board (ESRB) remain blurry and uncertain. The article concludes by suggesting that the only way to safeguard the independence of the ECB is by carefully revising the ECB’s competencies, which may require treaty amendment.


Pamela Nika
Dr Pamela Nika is a lecturer in Corporate and Finance Law at Brunel University London.
Article

Access_open Voters of Populist Parties and Support for Reforms of Representative Democracy in Belgium

Journal Politics of the Low Countries, Issue 3 2020
Keywords Belgian politics, democratic reforms, elections, populist voters, representative democracy
Authors Lisa van Dijk, Thomas Legein, Jean-Benoit Pilet e.a.
AbstractAuthor's information

    Recently, studies have burgeoned on the link between populism and demands for democratic reforms. In particular, scholars have been debating the link between populist citizens or voters and support for referendums. In this article, we examine voters of populist parties (Vlaams Belang (VB) and Parti du Travail de Belgique-Partij van de Arbeid (PTB-PVDA)) in Belgium in 2019 and we look at their attitudes towards various types of democratic reforms. We find that voters of populist parties differ from the non-populist electorate in their support for different kinds of reforms of representative democracy. Voters of VB and PTB-PVDA have in common stronger demands for limiting politicians’ prerogatives, for introducing binding referendums and for participatory budgeting. While Vlaams Belang voters are not significantly different from the non-populist electorate on advisory referendums, citizens’ forums or technocratic reform, PVDA-PTB voters seem more enthusiastic.


Lisa van Dijk
Lisa van Dijk (corresponding author), KU Leuven.

Thomas Legein
Thomas Legein, Université libre de Bruxelles (ULB).

Jean-Benoit Pilet
Jean-Benoit Pilet, Université libre de Bruxelles (ULB).

Sofie Marien
Sofie Marien, KU Leuven.
Article

Why a Crimes Against Humanity Convention from a Perspective of Post-Soviet States?

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords crimes against humanity, criminal law, ICC Statute, implementation, post-Soviet States
Authors Sergey Sayapin
AbstractAuthor's information

    Most post-Soviet States have introduced penal responsibility for crimes against humanity, either explicitly or under alternative headings. As a rule, their respective criminal laws are modelled after relevant provisions of the Draft Code of Crimes against the Peace and Security of Mankind or the Rome Statute of the International Criminal Court. The International Law Commission’s adoption of the Draft Articles on Prevention and Punishment of Crimes Against Humanity represents an appropriate occasion for post-Soviet States that have not yet penalized crimes against humanity to bring their criminal laws into fuller conformity with customary international criminal law.


Sergey Sayapin
LLB, LLM, Dr. iur., PhD, Associate Professor of International and Criminal Law and Director of the LLB. in International Law Programme at the School of Law, KIMEP University (Almaty, Kazakhstan).
Article

Access_open The Obligation of Judges to Uphold Rules of Positive Law and Possibly Conflicting Ethical Values in Context

The Case of Criminalization of Homelessness in Hungary

Journal Netherlands Journal of Legal Philosophy, Issue 2 2020
Keywords Judicial independence, Rule of law, Judicial ethics, Hungary, Criminalization of homelessness
Authors Petra Gyöngyi
AbstractAuthor's information

    This article examines the tension between the constitutional obligation of judges to uphold rules of positive law and possibly conflicting standards of conduct arising from professional-ethical values. The theoretical analysis will be illustrated by the case of Hungary, an EU member state experiencing rule of law challenges since 2010 and where the 2018-2019 criminalization of homelessness exemplifies the studied tension. Inspired by the theories of Philip Selznick and Martin Krygier, rule of law will be viewed as a value that requires progressive realization and context-specific implementation. By contextualizing the relevant Hungarian constitutional framework with the content of the judicial code of ethics and judicial practice, it will be shown how the legitimate space for Hungarian judges to distance themselves from legislation possibly in conflict with rule of law values is reduced. Theoretical suggestions for addressing such rule of law regressions will be made.


Petra Gyöngyi
Petra Gyöngyi is postdoctoral fellow aan de University of Oslo.
Article

A New Aspect of the Cross-Border Acquisition of Agricultural Lands

The Inícia Case Before the ICSID

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords ICSID, investment law, free movement of capital, land tenure, land law
Authors János Ede Szilágyi and Tamás Andréka
AbstractAuthor's information

    The Inícia case concluded at the International Centre for Settlement of Investment Disputes (ICSID) on 13 November 2019 shows that international arbitration institutions may have a significant role even in the EU Member States’ disputes concerning the cross-border acquisition of agricultural lands. Taking the regulation concerning cross-border acquisition into consideration, the last decade was extremely eventful: (i) Following the expiration of transitional periods, the new Member States were obliged to adopt new, EU law-conform national rules concerning the cross-border acquisition of agricultural lands. (ii) The European Commission began to generally and comprehensively assess the national land law of the new Member States. (iii) The FAO issued the Voluntary Guidelines on the ‘Responsible Governance of Tenure of land, fisheries and forests in the context of national food security’ (VGGT), which is the first comprehensive, global instrument on this topic elaborated in the framework of intergovernmental negotiations. (iv) Several legal documents, which can be regarded as soft law, concerning the acquisition of agricultural lands have been issued by certain institutions of the EU; these soft law documents at EU level are as rare as the VGGT at international level. (v) The EU initiated numerous international investment treaties, regulations of which also affect numerous aspects of the cross-border acquisition of agricultural lands. (vi) The Brexit and its effect on the cross-border acquisition of agricultural lands is also an open issue. Taking the above-mentioned development into consideration, the Inícia case may have a significant role in the future of the cross-border transaction among EU Member States and beyond.


János Ede Szilágyi
János Ede Szilágyi: professor of law, University of Miskolc; director, Ferenc Mádl Institute of Comparative Law. ORCID ID: 0000-0002-7938-6860.

Tamás Andréka
Tamás Andréka: head of Department for Legislation, Ministry of Agriculture; PhD student, University of Miskolc.
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

Participation in the European Public Prosecutor’s Office

Member States’ Autonomous Decision or an Obligation?

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords European Public Prosecutor’s Office, EPPO, OLAF, European criminal law, Eurojust
Authors Ádám Békés
AbstractAuthor's information

    The aim of the present study is to examine recent developments concerning the European Public Prosecutor’s Office (EPPO), focusing on the conflict between the EU and the Member States not participating in the enhanced cooperation setting up the Prosecutor’s Office. To provide an overall picture about EPPO’s future operational relations, the study first presents the EPPO’s future cooperation with other EU bodies and draws some critical conclusions. Based on these reflections, the study aims to discuss the EU’s alleged intention and strategy to cope with and solve the problem of non-participating Member States, assessing the probable role of the Prosecutor’s Office and other related EU bodies, institutions and legal measures in this struggle, while also considering recent declarations of the leaders of EU institutions.


Ádám Békés
Ádám Békés: associate professor of law, Pázmány Péter Catholic University, Budapest; attorney-at-law.
Article

The Protection of the Right to Local Self-Government in the Practice of the Hungarian Constitutional Court

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords right to local self-government, protected powers, European Charter of Local Self-Government, Hungary, Constitutional Court of Hungary
Authors Ádám Varga
AbstractAuthor's information

    A specific trait of local self-governments is that they exercise public power, while public power is also exercised against them. This means that those functions and powers that are obligations on the side of local self-governments, can be construed as rights against central public bodies. For this reason, the protection of the right to local self-government is a priority. The Charter of Local Self-Government takes the view that the autonomy of local self-governments shall be guaranteed against central public bodies. It is necessary to establish a legal framework which ensures that strong central public bodies cannot enforce their own political or professional preferences against the will of local communities with different political or professional beliefs. In my opinion, the central issue, also in Hungary, is that local self-governments are entitled to the protection of the Constitutional Court. Decision No. 3311/2019. (XI. 21.) AB sets out that local self-governments are entitled to turn to the Constitutional Court in their own right by submitting a constitutional complaint if the law violates their rights guaranteed in the Fundamental Law (including powers enshrined in the Fundamental Law). While the decision is still very recent, nevertheless, thanks to its local self-governments may expect the substantive review of their petitions by the Constitutional Court in the future.


Ádám Varga
Ádám Varga: visiting lecturer, Pázmány Péter Catholic University, Budapest; assistant lecturer, National University of Public Service, Budapest; counselor, Constitutional Court of Hungary, Budapest.

Anett Pogácsás
Anett Pogácsás: senior lecturer, Pázmány Péter Catholic University, Budapest; member of the Hungarian Council of Copyright Experts.
Article

The Impact of the Achmea Ruling on Intra-EU BIT Investment Arbitration

A Hungarian Perspective

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords Achmea, Intra-EU BIT, investment arbitration, investment protection, Hungary
Authors Veronika Korom
AbstractAuthor's information

    The Achmea judgment of the CJEU brought the worlds of EU law and investment arbitration on a collision course. The judgment sent shockwaves through the EU investment arbitration community, which feared that Achmea would be the death knell of intra-EU BIT arbitration. In the years since Achmea, however, arbitral tribunals, ad hoc committees and national courts have found ways around Achmea, effectively eliminating its practical impact on intra-EU investment disputes. On 5 May 2020, the majority of EU Member States adopted a multilateral agreement that seeks to terminate intra-EU BITs and provides for a transitional regime for pending arbitrations in order to give effect to Achmea. This agreement, once ratified, will mark the end of intra-EU BIT arbitration in the future, although its impact on pending proceedings remains unclear. With its 22 intra-EU BITs and several arbitration proceedings pending under these treaties, Hungary has relied heavily (albeit unsuccessfully thus far) on Achmea in recent years as part of its defense strategy. The final termination of intra-EU BITs will be a win for Hungary in the short term, as no new investment arbitrations can be pursued by EU investors against Hungary. In the long term, however, the termination of intra-EU BITs will leave Hungarian companies who invest in the EU without sound legal protection and may even adversely impact Hungary’s standing as an attractive place for EU investment.


Veronika Korom
Veronika Korom: assistant professor of law, ESSEC Business School.
Article

The ECtHR’s Grand Chamber Judgment in Ilias and Ahmed Versus Hungary: A Practical and Realistic Approach

Can This Paradigm Shift Lead the Reform of the Common European Asylum System?

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords ECHR, Hungarian transit zone, deprivation of liberty, concept of safe third country, Common European Asylum System
Authors Ágnes Töttős
AbstractAuthor's information

    The judgment of the Grand Chamber of the ECtHR in Ilias and Ahmed v. Hungary reflected a big turn of the ECtHR towards a practical and realistic approach. Although the Grand Chamber found that Hungary by choosing to use inadmissibility grounds and expel the applicants to Serbia failed to carry out a thorough assessment of the Serbian asylum system, including the risk of summary removal, contrary to the Chamber it found that a confinement of 23 days in 2015 did not constitute a de facto deprivation of liberty. This paradigm shift is already visible in further decisions of the Court, and it could even serve as a basis for a new direction when reforming the Common European Asylum System.


Ágnes Töttős
Ágnes Töttős: lecturer, Pázmány Péter Catholic University, Budapest; JHA counselor responsible for migration and asylum issues at the Permanent Representation of Hungary to the EU, Brussels.

András Tóth
András Tóth: professor of law, Károli Gáspár University of the Reformed Church, Budapest; Chairman of the Competition Council, Hungarian Competition Authority.

    The Danish Western High Court recently found that an employee who had entered into a severance agreement – and who was represented by her professional organisation during this process – was barred from claiming compensation under the Danish Anti-Discrimination Act, implementing Directive 2000/78.


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