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Article

Performing the COVID-19 Crisis in Flemish Populist Radical-Right Discourse

A Case Study of Vlaams Belang’s Coronablunderboek

Journal Politics of the Low Countries, Issue 2 2021
Keywords populism, COVID-19, crisis, discourse
Authors Jens Meijen
AbstractAuthor's information

    In June 2020, the Flemish populist radical right party Vlaams Belang (VB) published the Corona Blunder Book (CBB; Coronablunderboek in Dutch), detailing the government’s mistakes in handling the COVID-19 crisis. Populist parties can ‘perform’ crisis by emphasising the mistakes made by opponents (Moffitt, 2015) and may use a specifically populist discursive style, consisting largely of aggressive and sarcastic language (Brubaker, 2017). This paper takes the CBB as a case study in the populist performance of crisis and the populist style, finding that the book is, first, a clear example of populist ‘everyman’ stylistics and the performance of crisis, and, second, that VB uses the book to shift the COVID-19 crisis from a public health crisis to a crisis of governance, seeking to blame Belgium’s federal structure for the government’s alleged mismanagement of the COVID-19 pandemic and hence arguing for Flemish independence, one of the party’s main agenda points.


Jens Meijen
Jens Meijen is a PhD candidate at Leuven International and European Studies (LINES) at KU Leuven. His research focuses on nationalism, populism, and diplomacy.
Article

The Reform of Contract Rules in China’s New Civil Code

Successes or Pitfalls

Journal European Journal of Law Reform, Issue 2 2021
Keywords Civil Code of the People’s Republic of China, Contracts of the Civil Code, Chinese legal system, legislative history
Authors Peng Guo and Linxuan Li
AbstractAuthor's information

    The Civil Code of the People’s Republic of China (Civil Code) came into force on 1 January 2021. Book III on Contracts of the Civil Code has adopted significant changes compared to the old Chinese Contract Law (Contract Law). This article provides a comprehensive and systemic analysis of those changes from structure to content, from legislative technics to values underpinning the Civil Code. It evaluates all the factors in the context of the development of Chinese society, Chinese culture and Chinese legal system.
    This article first outlines the historical background of the development of the Contract Law and the Civil Code. It then moves on to compare the Civil Code and the Contract Law, highlighting the changes in structure, the incorporation of new provisions and the amendments to old provisions in light of contemporary Chinese society and culture. Finally, it argues that the Civil Code is a significant milestone in China’s legislative history; that it reflects the legislative experience and judicial practice in China; that it adds provisions which are innovative and of Chinese characteristics to meet the needs of China’s changing society and legal system; and that it keeps pace with the development of the global law reform and harmonization.


Peng Guo
Peng Guo is a Lecturer in Law, Graduate School of Business and Law, RMIT University, Australia.

Linxuan Li
Linxuan Li, LL.M. University of International Business and Economics, LL.B. Shandong University, China.
Article

Compensation for Victims of Disasters

A Comparative Law and Economic Perspective

Journal European Journal of Law Reform, Issue 2 2021
Keywords victim compensation, disaster risk reduction, government relief, insurance, moral hazard, public private partnership
Authors Qihao He and Michael Faure
AbstractAuthor's information

    This article provides a critical analysis of the compensation awarded for victims of disasters. First, general guiding principles of compensation are discussed. Next, various ways of government provided victim compensation, both during the disaster and ex post are critically reviewed. Then the article focuses on ex ante insurance mechanisms for victim compensation, arguing that insurance can play a role in disaster risk reduction. Finally, the article explains how the government can cooperate with insurers in a public-private partnership for victim compensation, thus facilitating the availability of disaster insurance.


Qihao He
Qihao He is Associate Professor of Law, China University of Political Science and Law, College of Comparative Law. Beijing, China. Qihao He acknowledges the financial support of China Ministry of Education Research Program on Climate Change and Insurance (No. 18YJC820024), and Comparative Private Law Innovation Project of CUPL (No. 18CXTD05).

Michael Faure
Michael Faure is Michael G. Faure, Professor of Comparative and International Environmental Law, Maastricht University, and Professor of Comparative Private Law and Economics, Erasmus University Rotterdam, The Netherlands. The authors thank the participants in the symposium of Regulating Disasters through Private and Public Law: Compensation and Policy held in University of Haifa, and the comments from Suha Ballan.
Article

Reducing Ethnic Conflict in Guyana through Political Reform

Journal European Journal of Law Reform, Issue 1 2021
Keywords Guyana, race, ethnic conflict, political power, constitutional reform
Authors Nicola Pierre
AbstractAuthor's information

    This article discusses using constitutional reform to reduce ethnic conflict in Guyana. I start by exploring the determinants of ethnic conflict. I next examine Guyana’s ethnopolitical history to determine what factors led to political alignment on ethnic lines and then evaluate the effect of the existing political institutions on ethnic conflict. I close with a discussion on constitutional reform in which I consider a mix of consociationalist, integrative, and power-constraining mechanisms that may be effective in reducing ethnic conflict in Guyana’s ethnopolitical circumstances.


Nicola Pierre
Nicola Pierre is Commissioner of Title and Land Court Judge in Guyana.
Article

What’s Good for ODR?

AI or AI

Journal International Journal of Online Dispute Resolution, Issue 1 2021
Keywords Augmented Intelligence, Artificial Intelligence, algorithms, ODR
Authors Graham Ross
AbstractAuthor's information

    Whilst the coronavirus epidemic saw mediators turn to web conferencing in numbers to ensure mediations continued to take place, it is believed that the rate at which individual mediators, as opposed to organizations handling volumes of disputes, began to use online dispute resolution (ODR)-specific tools and platforms remained comparatively slow. Mediators may have felt that, in using web conferencing, they had made the move to ODR. Another hurdle standing in the way of generating confidence in ODR-specific tools is that exciting developments used the less were powered by artificial intelligence (AI) and yet mention of AI and algorithms would create its own barrier, in no small part due to examples of shortcomings with AI and algorithms outside of ODR. The writer feels that the future lies in developments in ODR that benefit from AI. However that is less the traditional meaning of the acronym being Artificial Intelligence but more as Augmented Intelligence. The paper explains the difference with Artificial Intelligence leaving the machine in control whilst Augmented Intelligence retains control and decision-making with the human but assisted by the machine to a degree or in a format not possible by the human alone. The paper highlights examples of two ODR systems applying Augmented Intelligence.


Graham Ross
Graham Ross is a UK lawyer and mediator with over 20 years of experience in IT and the law. Graham is the author of lthe original QUILL egal application software (accounts and time recording) and the founder of LAWTEL, the popular webbased legal information update service. Graham co-founded the first ODR service in the UK, WeCanSettle, designing the blind bidding software at the heart of the system. Graham subsequently founded TheMediationRoom.com, for whom he designed their online mediation platform. Graham speaks regularly at international conferences on the application of technology to ADR. Graham was host of the 5th International Conference on Online Dispute Resolution held in Liverpool, UK, in 2007 and has organised two other ODR conferences. Graham was a member of the EMCOD project which created a tool for the European Union for the measurement of justice through ODR. Graham was a member of the UK Civil Justice Council’s Advisory Group on Online Dispute Resolution, whose recommendations led to the creation of an online court for small claims. Graham is a Board Member of ICODR. Graham is also a leading trainer in ODR having created the accredited distance training course at www.ODRtraining.com.
Article

Access_open A future agenda for environmental restorative justice?

Journal The International Journal of Restorative Justice, Issue 1 2021
Keywords restorative justice, restorative practice, environmental justice, environmental regulation
Authors Miranda Forsyth, Deborah Cleland, Felicity Tepper e.a.
AbstractAuthor's information

    The challenges of developing meaningful environmental regulation to protect communities and the environment have never been greater. Environmental regulators are regularly criticised for failing to act hard and consistently, in turn leading to demands for harsher punishments and more rigorous enforcement. Whilst acknowledging the need for strong enforcement to address wantonly destructive practices threatening communities and ecosystems, we argue that restorative approaches have an important role. This article explores a future agenda for environmental restorative justice through (1) situating it within existing scholarly and practice-based environmental regulation traditions; (2) identifying key elements and (3) raising particular theoretical and practical challenges. Overall, our vision for environmental restorative justice is that its practices can permeate the entire regulatory spectrum, going far beyond restorative justice conferences within enforcement proceedings. We see it as a shared and inclusive vision that seeks to integrate, hybridise and build broader ownership for environmental restorative justice throughout existing regulatory practices and institutions, rather than creating parallel structures or paradigms.


Miranda Forsyth
Miranda Forsyth is Associate Professor at the School of Regulation and Governance in the College of Asia and Pacific in the Australian National University, Australia.

Deborah Cleland
Deborah Cleland is a Postdoctoral Fellow at the School of Regulation and Governance in the College of Asia and Pacific in the Australian National University, Australia.

Felicity Tepper
Felicity Tepper is a Senior Research Officer at the School of Regulation and Governance in the College of Asia and Pacific in the Australian National University, Australia.

Deborah Hollingworth
Deborah Hollingworth is a Principal Solicitor at the Environment Protection Authority Victoria, Australia.

Milena Soares
Milena Soares is a public servant at the Técnica de Desenvolvimento e Administração,Brazil.

Alistair Nairn
Alistair Nairn is Senior Engagement Advisor at the Environment Protection Authority Victoria, Australia.

Cathy Wilkinson
Cathy Wilkinson is Professor of Practice at Monash Sustainable Development, Australia. Contact author: miranda.forsyth@anu.edu.au.
Article

Increased Uptake of Surveillance Technologies During COVID-19

Implications for Democracies in the Global South

Journal European Journal of Law Reform, Issue 4 2020
Keywords surveillance technology, platform economy, COVID-19, democracy, global south, belt and road initiative
Authors Alex Read
AbstractAuthor's information

    Social change and introduction of new technologies have historically followed crises such as pandemics, and COVID-19 has seen increasing public tracking through the use of digital surveillance technology. While surveillance technology is a key tool for enhancing virus preparedness and reducing societal risks, the speed of uptake is likely to raise ethical questions where citizens are monitored and personal data is collected. COVID-19 has occurred during a period of democratic decline, and the predominant surveillance-based business model of the ‘platform economy’, together with the development and export of artificial intelligence (AI)-powered surveillance tools, carries particular risks for democratic development in the countries of the Global South. Increased use of surveillance technology has implications for human rights and can undermine the individual privacy required for democracies to flourish. Responses to these threats must come from new regulatory regimes and innovations within democracies and a renewed international approach to the threats across democracies of the Global North and South.


Alex Read
Alex Read, democratic governance consultant for organisations including UNDP, Inter-Parliamentary Union, Westminster Foundation for Democracy.
Article

Access_open Alternative Dispute Resolution in the Digital Sector

A Dejurisdictionalization Process?

Journal International Journal of Online Dispute Resolution, Issue 2 2020
Keywords European legislation, Alternative Dispute Resolution, civil procedure
Authors Rebecca Berto
AbstractAuthor's information

    Alternative Dispute Resolution (=ADR) is a generic reference to consensus-based processes that provide an alternative to litigation and to binding arbitration procedures. Analysing European provisions, the European legislator pushes Alternative Dispute Resolution methods as a means of resolving not only consumer-to-business disputes but also business-to-business. This may determine over the long term a sort of ‘dejurisdictionalization’ process, moving disputes from tribunals to Alternative Dispute Resolution methods. Procedural rights, however, such as raising interpretative questions to the European Court of Justice, may only be exercised before a court.
    Therefore, Alternative Dispute Resolution and national civil procedure are separated by a sort of procedural ‘Chinese wall’: this legislator’s forma mentis, repeated also in more recent directives, hinders the development of cross-border procedural provisions capable of tackling the legal and procedural questions posed by communication services and new technologies, such as blockchain, whose technical features are not limited by geographical boundaries.
    This article argues that, in the light of technological advancements, the European internal market needs new common procedural legislation fit for the cross-border economic and legal relationships carried out within it.


Rebecca Berto
Rebecca Berto is a lawyer with ECC-Italy: d.jur. University of Padua, Pg. Dipl. International Dispute Resolution (Arbitration) Queen Mary University – London, admitted to the Italian Bar. The views expressed herein are solely the author’s and represent neither that of ECC Italy nor of its host structures or any other of its public financiers. All opinions and errors are of the author. The author did not receive private or public funds for this article.
Article

Towards Online Dispute Resolution-Led Justice in China

Journal International Journal of Online Dispute Resolution, Issue 2 2020
Keywords Online Dispute Resolution, smart court, internet court, access to justice, China
Authors Carrie Shu Shang and Wenli Guo
AbstractAuthor's information

    The use of online dispute resolution (ODR) in courts is a growing topic of interest. By focusing on the recent development of ODR-connected smart courts in China, this article explores ODR’s potential impact on Chinese legal systems from three aspects: role of courts and the legal profession, due process rights, and information safety. By focusing on changing dispute resolution theories – from emphasizing on conflict resolution to dispute prevention – the article argues that ODR-led court reforms rose to the centre because the reform caters to specific purposes of the recent series of reforms conducted under the auspices of the Rule of Law campaign, by prioritizing efficiency goals and attempting to enhance individualist justice experiences. In this article, we define the meaning of ODR in China and describe and categorize ODR technologies that are currently in use in China. Based on these general findings and promising technological options of ODR, we also recommend ways to better implement ODR in Chinese courts to take full advantage of technological advancements.


Carrie Shu Shang
Carrie Shu Shang, Assistant Professor, Coordinator, Business Law program, California State Polytechnic University, Pomona,

Wenli Guo
Wenli Guo, Ph.D., Assistant President, Beiming Software Co. Ltd., President, Internet Nomocracy Institute of Beiming Software Co. Ltd.,

    States apply different material conditions to attract or restrict residence of certain types of migrants. But states can also make use of time as an instrument to design more welcoming or more restrictive policies. States can apply faster application procedures for desired migrants. Furthermore, time can be used in a more favourable way to attract desired migrants in regard to duration of residence, access to a form of permanent residence and protection against loss of residence. This contribution makes an analysis of how time is used as an instrument in shaping migration policy by the European Union (EU) legislator in the context of making migration more or less attractive. This analysis shows that two groups are treated more favourably in regard to the use of time in several aspects: EU citizens and economic- and knowledge-related third-country nationals. However, when it comes to the acquisition of permanent residence after a certain period of time, the welcoming policy towards economic- and knowledge-related migrants is no longer obvious.


Gerrie Lodder
Gerrie Lodder is lecturer and researcher at the Europa Institute of Leiden University.
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

Crimes Against Humanity in the “Western European & Other” Group of States

A Continuing Tradition

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords crimes against humanity, Western Europe and Other Group of States, WEOG, Draft Articles on the Prevention and Punishment of Crimes Against Humanity
Authors Beth Van Schaack
AbstractAuthor's information

    The Western Europe and Other Group of states have a long history with crimes against humanity. They were pivotal in the juridical creation of this concept, in launching prosecutions in both international and national courts, and in formulating the modern definition of the crime. However, some members have expressed concerns around the International Law Commissions Draft Articles on the Prevention and Punishment of Crimes Against Humanity. This article provides a summary of the history of crimes against humanity in the Western Europe and Other Group of states, as well as the current status of crimes against humanity in their legal systems. It argues that although these states have successfully incorporated crimes against humanity into their legal frameworks, it would be beneficial for them to embrace the proposed Crimes Against Humanity Convention.


Beth Van Schaack
Leah Kaplan Visiting Professor of Human Rights, Stanford Law School.
Article

An Analysis of State Reactions to the ILC’s Work on Crimes Against Humanity

A Pattern of Growing Support

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords crimes against humanity, Sixth Committee, International Law Commission, Draft Articles, International Criminal Court
Authors Leila N. Sadat and Madaline George
AbstractAuthor's information

    The international community has been engaged with the topic of crimes against humanity since the International Law Commission (ILC) began work on it in 2013, with a view to draft articles for a future convention. Between 2013 and 2019, 86 States as well as several entities and subregional groups made comments on the ILC’s work at the United Nations Sixth Committee or through written comments to the ILC. This article is the culmination of the Whitney R. Harris World Law Institute’s work cataloguing and analysing States’ comments by assigning each statement to one of five categories – strong positive, positive, neutral, negative, and strong negative – examining both specific words and the general tenor of the comments. This article analyses the development of States’ reactions to the ILC’s work over time, as well as specific issues that frequently arose, observing that there is a pattern of growing support from States to use the ILC’s Draft Articles on Prevention and Punishment of Crimes Against Humanity as the basis for a new convention.


Leila N. Sadat
Leila Nadya Sadat is the James Carr Professor of International Criminal Law, and Director, Whitney R. Harris World Law Institute, Washington University School of Law. This work could not have been accomplished without the extraordinary efforts of several Harris Institute Fellows, including Fizza Batool, Evelyn Chuang, Tamara Slater, and Kristin Smith and Research Fellows Kate Falconer, Sam Rouse, and Ke (Coco) Xu.

Madaline George
Madaline George, JD, is the Senior Fellow at the Whitney R. Harris World Law Institute at Washington University School of Law.
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.
Editorial

Editorial Comments: The Relevance of Foreign Investment Protection in International and EU Law

Foreword to Vol. 8 (2020) of the Hungarian Yearbook of International Law and European Law

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Authors Marcel Szabó
Author's information

Marcel Szabó
Marcel Szabó: editor-in-chief; professor of law, Pázmány Péter Catholic University, Budapest; justice, Constitutional Court of Hungary, Budapest.
Article

Artificial Intelligence in the Courtroom

Increasing or Decreasing Access to Justice?

Journal International Journal of Online Dispute Resolution, Issue 1 2020
Keywords artificial intelligence, robojudge, separation of powers, algorithm, due proces
Authors Analisa Morrison
AbstractAuthor's information

    Jurisdictions around the world are experimenting with the use of artificially intelligent systems to help them adjudicate cases. With heavily overloaded dockets and cases that go on for years, many courts in the U.S. are eager to follow suit. However, American authorities should be slow to substitute human judges with automated entities. The uniqueness of the U.S. Constitution has demands that artificially intelligent “judges” may not be able to meet, starting with a machine’s lack of what may be called “true intelligence”. Philosopher John Searle wrote about the distinction between true intelligence and artificial intelligence in his famous “Chinese Room” analogy, which is applicable to the discussion of artificial intelligence in the courtroom. Former Navy Reserves officer, robotics engineer, and current patent lawyer Bob Lambrechts analyzed the idea of robots in court in his article, May It Please the Algorithm. Other scholars have started to explore it, too, but the idea of robots as judges remains a vast legal frontier that ought to be excavated thoroughly before it is inhabited by the American legal system.


Analisa Morrison
Juris Doctor Candidate, 2021, University of the Pacific, McGeorge School of Law
Article

‘Firewalls’ to Justice

Can Barriers in Censorship Practices Lead to Advancements in Online Dispute Resolution?

Journal International Journal of Online Dispute Resolution, Issue 1 2020
Keywords online dispute resolution, system design, access to justice, artificial intelligence, intellectual property, blockchain, information communication technology, COVID-19
Authors Shirin Ghafary
AbstractAuthor's information

    This article will discuss how we can learn from barriers of internet censorship to create opportunities for better access to the justice system through newer and more reliable Online Dispute Resolution technology. These advancements in technology can help in the application of security measures for materials disclosed in the use of online dispute resolution (ODR) platforms and reduce people’s fears of privacy concerns. This in turn will promote the use of ODR and provide greater access to the justice system, especially for those people who cannot afford more traditional forms of legal services by making more convenient platforms that are less costly, less time consuming, and more readily available to people via their laptops. Technology is advancing and it is advancing fast, we choose whether we advance with it or stay behind. The COVID-19 pandemic has shown us the vulnerabilities of our society and how technologically far behind we are, perhaps it was just the push that we needed.


Shirin Ghafary
Juris Doctor, McGeorge School of Law, University of the Pacific, Bachelor of Science, York University.

Albert Dzur
Albert Dzur is Distinguished Research Professor, Departments of Political Science and Philosophy, Bowling Green State University, USA.

    This article relies on the premise that to understand the significance of Open Access Repositories (OARs) it is necessary to know the context of the debate. Therefore, it is necessary to trace the historical development of the concept of copyright as a property right. The continued relevance of the rationales for copyright interests, both philosophical and pragmatic, will be assessed against the contemporary times of digital publishing. It follows then discussion about the rise of Open Access (OA) practice and its impact on conventional publishing methods. The present article argues about the proper equilibrium between self-interest and social good. In other words, there is a need to find a tool in order to balance individuals’ interests and common will. Therefore, there is examination of the concept of property that interrelates justice (Plato), private ownership (Aristotle), labour (Locke), growth of personality (Hegel) and a bundle of rights that constitute legal relations (Hohfeld). This examination sets the context for the argument.


Nikos Koutras
Postdoctoral Researcher, Faculty of Law, University of Antwerp.
Article

Where Have All the Lawyers Gone?

The Empty Chair at the ODR Justice Table

Journal International Journal of Online Dispute Resolution, Issue 2 2019
Keywords legal profession ODR, system design, courts, legal practice
Authors Noam Ebner and Elayne E. Greenberg
AbstractAuthor's information

    We are currently witnessing a revolution in access to justice and a parallel revolution in justice delivery, design and experience. As dispute resolution design scholars tell us, the implementation of any new dispute intervention plan in a system should involve all of its stakeholders from the beginning. In our justice system there are three primary stakeholders, who have been traditionally involved in processes of innovation and change: the courts, the parties and the lawyers. Courts and parties have been involved in the development of online dispute resolution (ODR). However, one significant justice stakeholder, the legal profession, has been relatively absent from the table thus far – whether by lack of awareness, by lack of will or innovative spirit or by lack of invitation: lawyers.


Noam Ebner
Noam Ebner is Professor of Negotiation and Conflict Resolution, Creighton University.

Elayne E. Greenberg
Elayne E. Greenberg is Assistant Dean for Dispute Resolution Programs, Professor of Legal Practice and Director of Hugh H. Carey Center for Dispute Resolution.
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