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Bas van Zelst
Prof. dr. Bas van Zelst is professor of Dispute Resolution & Arbitration at Maastricht University. He practices law at Van Doorne N.V. in Amsterdam, the Netherlands.
Article

Access_open Evaluative Mediation (Part II), Deployment

How to Deploy Evaluative Mediation?

Journal Corporate Mediation Journal, Issue 2 2021
Keywords evaluative mediation, deployment, hybrids
Authors Martin Brink
AbstractAuthor's information

    Part II of this article addresses the question of how evaluative mediation may be used in practice. What guidelines are available to a mediator who considers crossing the line between facilitation and evaluation?


Martin Brink
Martin Brink PhD is Editor in Chief of this Journal, mediator and arbitrator at Utrecht and The Hague, The Netherlands.
Article

Access_open Dispute Resolution in the Chinese Belt and Road Initiative

The Role of Mediation

Journal Corporate Mediation Journal, Issue 2 2021
Keywords international commercial mediation, Belt and Road Initiative, Singapore Convention, China, international dispute resolution
Authors Henneke Brink
AbstractAuthor's information

    With unfaltering determination, China continues to expand its Belt and Road Initiative (BRI). This article focuses on the preference that is given to mediation for the resolution of BRI-related disputes. China, Hong Kong and Singapore proclaim that this approach better fits with ‘Asian’ cultural values than adversarial processes like arbitration and litigation. The BRI can be seen as an innovative field lab where mechanisms for international commercial conflict management and resolution are being developed and put to action - and where legitimacy is tested.


Henneke Brink
Henneke Brink is a Dutch lawyer, mediator, and owner of Hofstad Mediation. She carries out research and writes about topics concerning the relation between mediation and (inter)national formal justice systems.
Article

Access_open Global Solidarity and Collective Intelligence in Times of Pandemics

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Keywords Global solidarity, Pandemics, Global Existential Threats, Collective Intelligence, CrowdLaw
Authors José Luis Martí
AbstractAuthor's information

    Some of the existential threats we currently face are global in the sense that they affect us all, and thus matter of global concern and trigger duties of moral global solidarity. But some of these global threats, such as the COVID-19 pandemic, are global in a second, additional, sense: discharging them requires joint, coordinated global action. For that reason, these twofold global threats trigger political – not merely moral – duties of global solidarity. This article explores the contrast between these two types of global threats with the purpose of clarifying the distinction between moral and political duties of global solidarity. And, in the absence of a fully developed global democratic institutional system, the article also explores some promising ways to fulfill our global political duties, especially those based on mechanisms of collective intelligence such as CrowdLaw, which might provide effective solutions to these global threats while enhancing the democratic legitimacy of public decision-making.


José Luis Martí
José Luis Martí is Associate Professor of Legal and Political Philosophy, Department of Law, Pompeu Fabra University of Barcelona.
Article

Access_open Welcoming the Other in a Pandemic Society

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Keywords Discourse, Solidarity, Poststructuralism, Levinas, Derrida
Authors Thomas Jacobus de Jong and Carina van de Wetering
AbstractAuthor's information

    This contribution explores the meaning and scope of solidarity with the emergence of the coronavirus discourse as formulated by politicians in order to make sense of the virus. It offers a poststructuralist account drawing on discourse theory together with insights from Levinas and Derrida. This leads to a critical reflection on the prevailing view of solidarity as secondary and derivative to corona policies, because solidarity is often subjugated to hegemonic meanings of efficiency. Instead, the argument is made that solidarity refers to the unique responsibility to which the other as wholly other commands me. This appeal for responsibility, that is presented in the face of the other, is to be assumed in the distance between the rules and the singularity of the situation. Accordingly, solidarity is described as a paradox of dependence (calculability) and independence (beyond calculation), that appears in a moment of undecidability, for it can never be overcome.


Thomas Jacobus de Jong
Thomas Jacobus de Jong is senior parketsecretaris at the Netherlands Public Prosecution Service (OM).

Carina van de Wetering
Carina van de Wetering is Lecturer in International Relations at the Institute of Political Science at Leiden University.

    Terms-of-service based actions against political and state actors as both key subjects and objects of political opinion formation have become a focal point of the ongoing debates over who should set and enforce the rules for speech on online platforms.
    With minor differences depending on national contexts, state regulation of platforms creating obligations to disseminate such actors’ information is considered dangerous for the free and unhindered discursive process that leads to the formation of public opinions.
    Reactions to the suspension of Trump as not the first, but the most widely discussed action of platform companies against a politician (and incumbent president) provide a glimpse on the state of platform governance debates across participating countries.
    Across the countries surveyed politicians tend to see the exercise of content moderation policies of large platform companies very critically
    The majority of politicians in European countries seem to be critical of the deplatforming of Trump, emphasizing fundamental rights and calling for such decisions to be made by states, not private companies
    These political standpoints stand in an unresolved conflict with the constitutional realities of participating countries, where incumbents usually cannot invoke fundamental rights when acting in their official capacities and where laws with “must carry” requirements for official information do not exist for social media and would likely only be constitutional for narrowly defined, special circumstances such as disaster prevention.
    Facebooks’ referral of the Trump-decision to its Oversight Board sparked a larger debate about institutional structures for improving content governance. The majority of participating countries has experience with self- or co-regulatory press-, media- or broadcasting councils to which comparisons can be drawn, foreshadowing the possible (co-regulatory) future of governing online speech.
    Media commentators in participating countries interpreted the deplatforming of Trump as a signal that far-right parties and politicians around the world may face increasing scrutiny, while conservative politicians and governments in multiple participating countries instrumentalized the actions against Trump as supposed proof of platform’s bias against conservative opinions.
    Even without specific legal requirements on content moderation, submissions from several countries refer to a general – often: constitutional – privileging of speech of politicians and office holders. This could potentially support or even compel the decisions of platforms to leave content of political actors up even if it violates their terms of service.


Martin Fertmann
Martin Fertmann is a PhD student at the Leibniz-Institut für Medienforschung | Hans-Bredow-Institut’s research programme “Regulatory Structures and the Emergence of Rules in Online Spaces”

Matthias C. Kettemann
Prof. dr. Matthias C. Kettemann, LL.M. (Harvard) is head of the research programme “Regulatory Structures and the Emergence of Rules in Online Spaces” at the Leibniz Institute for Media Research | Hans-Bredow-Institut.
Article

Legal Tradition and Human Rights

A Quantitative Comparative Analysis of Developing Countries

Journal European Journal of Law Reform, Issue 3 2021
Keywords comparative law, comparative constitutional analysis, human rights, legal traditions, quantitative constitutional analysis, economic rights, social and family rights, civil and political rights
Authors Dhanraj R. Singh
AbstractAuthor's information

    This analysis examines the relationship between legal tradition and constitutional human rights. It experiments with a quantitative comparative methodology to compare economic rights, social and family rights, and civil and political rights between countries with common law, civil law and mixed law legal traditions. The results show that developing countries with a civil law legal tradition provide more constitutional human rights than their counterparts with a common law legal tradition. Although preliminary and imperfect, the results challenge the notion of superiority of the common law legal tradition and human rights. The quantitative comparative framework used offers a new methodological frontier for comparative constitutional law researchers to examine relationships between legal traditions.


Dhanraj R. Singh
Dhanraj R. Singh is a graduate student at the Institute of Advanced Legal Studies, University of London.
Article

Sustainability in Global Supply Chains Under the CISG

Journal European Journal of Law Reform, Issue 3 2021
Keywords CISG, sustainability, supply chains, UN Global Compact, Codes of Conduct, conformity of the goods
Authors Ingeborg Schwenzer and Edgardo Muñoz
AbstractAuthor's information

    In this article, the authors assert that the United Nations Convention for the International Sale of Goods (CISG) can contribute to tackling gaps in statutory legislation and defective business conduct that have been associated with unsustainable trade in Global Supply Chains (GSCs). The authors provide evidence that the CISG contains rules enabling a general legal framework for establishing uniform sustainable standards for goods concerning suppliers, sellers and buyers located in different countries. For instance, the CISG provisions on contract formation ease the incorporation of joint codes of conduct for sustainable trade in GSCs. In addition, the contracting parties’ circumstances and current trade usages are now more relevant to determine what constitutes conformity of the goods under the contract and the default warranties in Article 35 CISG. On the level of remedies, the authors show that best-efforts provisions, possibly included in a code of conduct or inferred from standards applicable to the goods, may redefine the notion of impediment in Article 79 CISG, which could lead to exoneration of liability for the seller. They also demonstrate why fundamental breach and the calculation of damages are at the centre of the discussion regarding the remedies for breach of an obligation to deliver sustainable goods.


Ingeborg Schwenzer
Ingeborg Schwenzer is Dean of the Swiss International Law School (SiLS), Professor emerita of Private Law at the University of Basel (Switzerland) and past Chair of the CISG Advisory Council. Dr. iur. (Freiburg i.Br.), LLM (UC Berkeley).

Edgardo Muñoz
Edgardo Muñoz is Professor of Law, Universidad Panamericana. Facultad de Derecho. Calzada Álvaro del Portillo 49, Zapopan, Jalisco, 45010, México. PhD (Basel), LLM (UC Berkeley), LLM (Liverpool), LLB (UIA Mexico), DEUF (Lyon). This research has been funded by Universidad Panamericana through the grant ‘Fomento a la Investigación UP 2020’, under project code UP-CI-2020-GDL-04-DER.
Hungarian State Practice

The Public Trust Doctrine, the Non-Derogation Principle and the Protection of Future Generations

The Hungarian Constitutional Court’s Review of the Forest Act

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords public trust, non-derogation, Article P, Constitutional Court of Hungary, future generations
Authors Katalin Sulyok
AbstractAuthor's information

    This article analyzes the doctrinal findings of the Hungarian Constitutional Court with respect to the constitutional protection afforded to future generations in the Fundamental Law. It focuses on Decision No. 14/2020. (VII. 6.) AB in which the Constitutional Court abolished an amendment to the Forest Act for infringing the right to a healthy environment and the environmental interests of future generations as enshrined in Article P of the Fundamental Law. On this occasion, the Constitutional Court for the first time explicitly recognized that Article P embodies the public trust doctrine; and stressed that it confers fiduciary duties on the State to act as a trustee over the natural heritage of the nation for the benefit of future generations, which limits the executive’s discretion to exploit and regulate such resources. This article puts the Hungarian constitutional public trust in a comparative perspective by exploring the origins, role and functioning of similar constitutional public trust provisions in other jurisdictions. This is followed by setting out the normative principles derived by the Hungarian Constitutional Court in its previous practice from Article P, such as the non-derogation principle, the principle of inter-generational equity, the imperative of long-term planning, economical use of resources and the precautionary principle. The article then sets out the legal bases featured in the ex post constitutional challenge brought against the amendment of the Forest Act by the Ombudsman, and the Constitutional Court’s reasoning. It concludes with offering some wider lessons for the judicial enforcement of long-term environmental goals vis-á-vis short-term economic private interests.


Katalin Sulyok
Katalin Sulyok: senior lecturer, ELTE Law School, Budapest; chief legal advisor, Office of the Hungarian Ombudsman for Future Generations, Budapest.

Fernanda Fonseca Rosenblatt
Fernanda Fonseca Rosenblatt is Professor of Law at the Catholic University of Pernambuco (UNICAP), Brazil and Assistant Professor at the International Institute for Restorative Practices (IIRP), USA, and Book Review Editor of this journal.

Kennedy Anderson Domingos de Farias
Kennedy Anderson Domingos de Farias is an undergraduate law student at UNICAP, Brazil. Contact author: fernanda.rosenblatt@unicap.br.
Article

Access_open Big Data Ethics: A Life Cycle Perspective

Journal Erasmus Law Review, Issue 1 2021
Keywords big data, big data analysis, data life cycle, ethics, AI
Authors Simon Vydra, Andrei Poama, Sarah Giest e.a.
AbstractAuthor's information

    The adoption of big data analysis in the legal domain is a recent but growing trend that highlights ethical concerns not just with big data analysis, as such, but also with its deployment in the legal domain. This article systematically analyses five big data use cases from the legal domain utilising a pluralistic and pragmatic mode of ethical reasoning. In each case we analyse what happens with data from its creation to its eventual archival or deletion, for which we utilise the concept of ‘data life cycle’. Despite the exploratory nature of this article and some limitations of our approach, the systematic summary we deliver depicts the five cases in detail, reinforces the idea that ethically significant issues exist across the entire big data life cycle, and facilitates understanding of how various ethical considerations interact with one another throughout the big data life cycle. Furthermore, owing to its pragmatic and pluralist nature, the approach is potentially useful for practitioners aiming to interrogate big data use cases.


Simon Vydra
Simon Vydra is a Researcher at the Institute for Public Administration, Leiden University, the Netherlands.

Andrei Poama
Andrei Poama is Assistant Professor at the Institute for Public Administration, Leiden University, the Netherlands.

Sarah Giest
Sarah Giest is Assistant Professor at the Institute for Public Administration, Leiden University, the Netherlands.

Alex Ingrams
Alex Ingrams is Assistant Professor at the Institute for Public Administration, Leiden University, the Netherlands.

Bram Klievink
Bram Klievink is Professor of Digitization and Public Policy at the Institute for Public Administration, Leiden University, the Netherlands.
Conversations on restorative justice

A talk with Rob White

Journal The International Journal of Restorative Justice, Issue 1 2021
Authors Albert Dzur
Author's information

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

Why an atmosphere of transhumanism undermines green restorative justice concepts and tenets

Journal The International Journal of Restorative Justice, Issue 1 2021
Keywords green restorative justice, transhumanism, technological progress, animals, bioethics
Authors Gema Varona
AbstractAuthor's information

    Arising from the notions of green criminology and green victimology, green restorative justice can be defined as a restorative justice focused on environmental harm. Harm in this case is understood as criminalised and non-criminalised, and as individual and collective behaviours damaging the ecosystems and the existence of human and non-human beings. Impacts of environmental harm affect health, economic, social and cultural dimensions, and will be experienced in the short, medium and long term. Within this framework, after linking restorative justice to green criminology and green victimology, I will argue that the current weight of the cultural and social movement of transhumanism constitutes an obstacle to the development of restorative justice in this field. The reason is that it fosters individual narcissism, together with the idea of an absence of limits in what is considered technological progress. This progress is seen as inevitable and good per se, and promotes the perception of a lack of social and moral accountability. This reasoning will lead to some final reflections on how restorative justice has to constantly reinvent itself in order to keep creating a critical and inclusive justice of ‘otherness’. By doing so, restorative justice must join the current interdisciplinary conversation on biopolitics and bioethics.


Gema Varona
Gema Varona is a Senior Researcher at the Basque Institute of Criminology, University of the Basque Country, Donostia/San Sebastián, Spain. Contact author: gemmamaria.varona@ehu.eus.
Article

A maximalist approach of restorative justice to address environmental harms and crimes

Analysing the Brumadinho dam collapse in Brazil

Journal The International Journal of Restorative Justice, Issue 1 2021
Keywords environmental law, maximalist approach, restorative justice principles and concepts, decision-making process, sanctioning rules
Authors Carlos Frederico Da Silva
AbstractAuthor's information

    In this article, the author analyses court cases arising from the rupture of the mining tailings dam in the city of Brumadinho, Brazil, on 25 January 2019. In a civil lawsuit context, legal professionals recognised damage to people and the environment during hearings involving a judge, prosecutors, lawyers and corporate representatives. The centrality of the victims’ interests and the need for remedial measures prevailed in the agreements signed mainly to provide urgent relief and restore damage to the ecosystem. In the criminal lawsuit dealing with the same facts, there have not yet been acquittals, non-prosecution agreements or convictions. By employing a socio-legal approach to contrast different types of legal reasoning, this article explores the possibilities of restorative responses in civil proceedings and explains the lack of them in criminal justice. In highlighting some characteristics of punishment theories that hinder a possible restorative justice approach, the article offers a critique of a penal system mostly linked to argumentative competition rather than persuasive conflict resolution. The author argues that jurisprudence should address transdisciplinary concepts, such as responsive regulation, restorative efforts, proportionality and individualisation of punishment. The discussion can shed light on the decision-making process to allow environmental restorative justice responses to crimes.


Carlos Frederico Da Silva
Carlos Frederico Braga Da Silva is a PhD researcher associated to the Graduate School of Sociology at the Federal University of Minas Gerais, Brazil, and to the Canadian Chair of Legal Traditions and Penal Rationality, Faculty of Social Sciences, Department of Criminology, University of Ottawa, Canada. He also works as a state judge in Belo Horizonte, Minas Gerais, Brazil. Contact author: carlosfrebrasilva@gmail.com.
Article

Environmental justice movements and restorative justice

Journal The International Journal of Restorative Justice, Issue 1 2021
Keywords restorative justice, environmental conflicts, environmental justice movements
Authors Angèle Minguet
AbstractAuthor's information

    The worldwide existing environmental conflicts have also given rise to worldwide environmental justice movements. Using a diversity of tools that range from petitions to legal actions, what such movements have often shown is that environmental conflicts rarely find a satisfactory resolution through criminal judicial avenues. Given this reality, the important question then is whether there is a place within environmental justice movements for a restorative justice approach, which would lead to the reparation or restoration of the environment and involve the offenders, the victims and other interested parties in the conflict transformation process. Based on the analysis of environmental conflicts collected by the Environmental Justice Organizations, Liabilities and Trade project (EJOLT), and more specifically on two emblematic environmental conflict cases in Nigeria and in Ecuador, the argument will be made that it is essentially due to the characteristics of environmental conflicts, and due to the fact that they almost never find a satisfactory resolution through traditional judicial avenues, that environmental justice movements ask for a restorative approach, and that restorative justice is a sine qua non condition to truly repair environmental injustices, as long as the worldview and nature of the victims is taken into consideration.


Angèle Minguet
Angèle Minguet is a researcher at the Research Centre in Political Science, Université Saint-Louis – Bruxelles (CReSPo), Belgium. Contact author: angele.minguet@gmail.com.

Brunilda Pali
Brunilda Pali is a Senior Researcher at the Leuven Institute of Criminology, KU Leuven, Belgium, and a Lecturer at the Department of Political Sciences, University of Amsterdam, the Netherlands.

Ivo Aertsen
Ivo Aertsen is Emeritus Professor of Criminology, Leuven Institute of Criminology, KU Leuven, Belgium. Contact author: Brunilda.pali@kuleuven.be.
Article

Access_open States of Emergency

Analysing Global Use of Emergency Powers in Response to COVID-19

Journal European Journal of Law Reform, Issue 4 2020
Keywords coronavirus, emergency law, emergency powers, autocratization, democratic deconsolidation, state of emergency, rule of law, transparency, accountability, legislative scrutiny
Authors Joelle Grogan
AbstractAuthor's information

    The measures taken in response to the coronavirus pandemic have been among the most restrictive in contemporary history, and have raised concerns from the perspective of democracy, human rights, and the rule of law. Building on a study of the legal measures taken in response to pandemic in 74 countries, this article considers the central question of the use of power during an emergency: is it better or worse for democracy and the rule of law to declare an emergency or, instead, to rely on ordinary powers and legislative frameworks? The article then considers whether the use of powers (ordinary or emergency) in response to the pandemic emergency has ultimately been a cause, or catalyst of, further democratic deconsolidation. It concludes on a note of optimism: an emerging best practice of governmental response reliant on public trust bolstered by rationalized and transparent decision-making and the capacity to adapt, change and reform measures and policies.


Joelle Grogan
Dr. Joelle Grogan is Senior Lecturer in Law, Middlesex University London.
Article

Space Tourism and Space Law: Approach Based on the Law Applicable to Astronauts

Journal International Institute of Space Law, Issue 1 2020
Keywords astronauts, space tourism, space law
Authors Jonathan Campos Percivalle de Andrade
AbstractAuthor's information

    Although space tourism is still an embryonic activity and has been gradually developing through private companies, it is a subject that soon, contrary to what has been happening, should occupy the great international forums that are dedicated to the space theme, such as the United Nations Committee for the Peaceful Uses of Space (COPUOS). The present work has the objective, from the existing legal regime for astronauts, especially the Agreement on the Rescue of Astronauts and Restitution of Astronauts and Objects Launched into Cosmic Space of 1968, outlining some rights that may be granted to space tourists recognized either from a specific international convention or from the analogous application of the 1968 Rescue Agreement, which, under the rules of the Vienna Convention on the Law of Treaties of 1969, proves to be more difficult in international law to occur. In any case, it seems incontestable, as observed in the 1968 Rescue Agreement, that space tourists be guaranteed the right (and at the same time the duty of States) to be saved, assisted and restored in case of problems in re-entry from the cooperation of the State that carry out these efforts jointly with the company responsible for the flight. Thus, the need to construct a regime for space tourists emerges, especially through an international convention that provides for its minimum rights, as well as the obligations of companies and States.


Jonathan Campos Percivalle de Andrade
Jonathan Campos Percivalle de Andrade, Peruíbe College, Brazil.
Article

The Militarization of Outer Space as a Factor of Innovation of International Humanitarian Law

A Comparative Research

Journal International Institute of Space Law, Issue 7 2020
Keywords international humanitarian law, outer space
Authors Alexsandro Souza de Lima
AbstractAuthor's information

    Humanity, in more recent years, has witnessed a dramatic acceleration of changes in various aspects of life. The various technological advances throughout history have their effects in many different fields of science, among which International Humanitarian Law (IHL) is not exempt. In addition to customary norms, IHL has been codified in various treaties. It should be also noted that other normative instruments have been dynamically inserted within the scope of IHL, with the purpose of following the evolution of war technology, linked to the reception of humanitarian issues by States, standing as additional protocols. However, there is controversy about the need to update IHL in the face of certain new technologies, even though they may make belligerence possible in other environments, such as cyber and outer space. At this point, some theorists argue that the principles enshrined in that branch of law are sufficient to cope with the aforementioned developments. However, practice has shown that these new war like scenarios have raised doubts in the international community as to the applicability of IHL in certain circumstances that were previously unexplored. For this reason, efforts have been made to understand the topic, resulting in documents that, if not binding, at least bring a guiding character to the issue. It is, therefore, this theme that this research project addresses, seeking to identify the need to update the IHL due to the novelty of the considered environment.


Alexsandro Souza de Lima
Alexsandro Souza de Lima, Outer Space Affairs Monitoring Department, Institutional Security Office of The Presidency of The Republic of Brazil.
Article

Access_open New Sales and Contract Law in Argentina and France

Models for Reform Inspired by the CISG and the PICC?

Journal European Journal of Law Reform, Issue 3 2020
Keywords contracts, sales, law reform, CISG, UNIDROIT Principles, Argentina, France, comparative law
Authors Edgardo Muñoz and Inés Morfín Kroepfly
AbstractAuthor's information

    The Argentine and the French civil codes have recently undergone substantial modifications to their contract law provisions. These novel statutes could serve as models for future B2B contract law reforms in Latin American jurisdictions and beyond, as former Argentine and French laws have done in the past. The authors offer a contribution that paves the way in that direction with a systematic comparative analysis. As a starting point, this article unveils the influence that the modern unified laws on contracts (UNIDROIT Principles on International Commercial Contracts (PICC) and United Nations Convention on Contracts for the International Sale of Goods of 1980 (CISG)) have in Argentina’s and France’s new contract law. It also highlights the most obvious similarities and differences in both sets of rules. This contribution goes beyond simple tertium comparisons; the authors analyse which of the two laws offers better, or more effective, rules to achieve the desired contract law functions in various matters. Readers are provided with the best rule or solution to address the problem in question and, as the authors hope, they should conclude that both models provide for a range of complementary solutions for modern contract law reforms.


Edgardo Muñoz
Professor of Law, Universidad Panamericana. School of Law. Calzada Álvaro del Portillo 49, Zapopan, Jalisco, 45010, Mexico. Ph.D. (Basel), LL.M. (UC Berkeley), LL.M. (Liverpool), LL.B. (UIA Mexico), DEUF (Lyon), emunoz@up.edu.mx.

Inés Morfín Kroepfly
Ines Morfin Kroepfly, J.D., Universidad Panamericana, Guadalajara.
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