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Article

Managing Procedural Expectations in Small Claims ODR

Journal International Journal of Online Dispute Resolution, Issue 1 2019
Keywords fair trial, procedural justice, natural justice, waiver, small claims, consumer disputes, proportionality
Authors Fabien Gélinas
AbstractAuthor's information

    In this article, the author reflects on the appropriate place of traditional procedural guarantees in the resolution of consumer and small claims disputes using online tools. After examining the key aspects of procedural justice that constitute the right to a fair trial and analysing its effects on procedures designed for low-value disputes, the article argues for a flexible approach that takes procedural proportionality seriously.


Fabien Gélinas
Fabien Gélinas is Sir Wiliam C. Macdonald Professor of Law, McGill University, Co-Founder of the Montreal Cyberjustice Laboratory and Head of the Private Justice and the Rule of Law Research Team. The preparation of this article was made possible by grants from the SSHRC and the FQRSC. Thanks go to Dr Giacomo Marchisio and Ms Leyla Bahmany for their kind assistance. This article was originally published in Immaculada Barral (ed.) La resolución de conflictos con consumidores: de la mediation a las ODR (Madrid: Editorial Reus, 2018).
Article

Access_open Constitutional Norms for All Time?

General Entrenchment Clauses in the History of European Constitutionalism

Journal European Journal of Law Reform, Issue 3 2019
Keywords constitutional amendments, constitutional law, constitutional politics, constitutionalism, entrenchment clauses, eternity clauses
Authors Michael Hein
AbstractAuthor's information

    ‘General entrenchment clauses’ are constitutional provisions that make amendments to certain parts of a constitution either more difficult to achieve than ‘normal’ amendments or even impossible, i.e., legally inadmissible. This article examines the origins of these clauses during the American Revolution (1776-77), their migration to the ‘Old World’, and their dissemination and differentiation on the European continent from 1776 until the end of 2015. In particular, the article answers three questions: (1) When, and in which contexts, did general constitutional entrenchment clauses emerge? (2) How have they migrated to and disseminated in Europe? (3) Which constitutional subjects do such clauses protect, and thus, which main functions do they aim to fulfil?


Michael Hein
Adult Education Center Altenburger Land, Altenburg, Germany. Email: mail@michaelhein.de. All cited websites were visited on June 18, 2018. Unless stated otherwise, all references to constitutions in this article are taken from M. Hein, The Constitutional Entrenchment Clauses Dataset, Göttingen 2018, http://data.michaelhein.de. All translations are by the author.
Article

Ethical Principles for Online Dispute Resolution

A GPS Device for the Field

Journal International Journal of Online Dispute Resolution, Issue 1 2016
Keywords ODR, ethics, alternative dispute resolution, technology
Authors Leah Wing
AbstractAuthor's information

    The disruptive force of technology has led to innovative dispute resolution practices that increase access to justice and also raise new ethical considerations. In response, there have been assertions about the importance of applying to online dispute resolution (ODR) the shared values already enshrined within alternative dispute resolution (ADR) as well as calls to more carefully assess ways they may be insufficient or need refining to adequately address the new ethical challenges emerging in ODR. As ODR is increasingly incorporated into legislation, regulation and a wide variety of sectors in society, it is timely to explore the importance of ethical principles specifically for ODR. In the hope of contributing to these efforts, this article examines the benefits and challenges of articulating a set of ethical principles to guide the development and implementation of ODR systems, technology and processes.


Leah Wing
Leah Wing is Co-Director, National Center for Technology and Dispute Resolution, and Senior Lecturer, Legal Studies Program, Department of Political Science, University of Massachusetts at Amherst (USA).
Article

The New Handshake: Where We Are Now

Journal International Journal of Online Dispute Resolution, Issue 2 2016
Keywords consumers, consumer protection, online dispute resolution (ODR), remedies, e-commerce
Authors Amy J. Schmitz and Colin Rule
AbstractAuthor's information

    The internet has empowered consumers in new and exciting ways. It has opened more efficient avenues for consumers to buy just about anything. Want proof? Just pull out your smartphone, swipe your finger across the screen a few times, and presto – your collector’s edition Notorious RBG bobblehead is on its way from China. Unfortunately, however, the internet has not yet delivered on its promise to improve consumer protection.


Amy J. Schmitz
Amy J. Schmitz is the Elwood L. Thomas Missouri Endowed Professor at the University of Missouri School of Law and Center for the Study of Dispute Resolution, and the founder of MyConsumertips.info.

Colin Rule
Colin Rule is co-founder and Chairman of Modria.com and the former Director of Online Dispute Resolution for eBay and PayPal.
Article

A More Forceful Collective Redress Schemes in the EU Competition Law

What Is the Potential for Achieving Full Compensation?

Journal European Journal of Law Reform, Issue 4 2016
Keywords full compensation, private enforcement, damages actions, collective actions, deterrence
Authors Žygimantas Juška
AbstractAuthor's information

    The damages actions reform of the European Union is predetermined to fail in achieving its stated goal of full compensation. There are two main reasons for this. First, the Directive on damages actions fails to maintain a balance between the claims of direct and indirect purchasers. Second, the EU policy is not designed to collect a large group of antitrust victims, who have suffered only a low-value harm (e.g., end consumers). The only way to achieve compensation effectiveness is to overstep the bounds of the EU compensatory regime, which is trapped in the grip of conservatism. In such circumstances, this article will explore three forceful scenarios of collective redress that include different types of deterrence-based remedies. The principal aim is to assess the chances of these scenarios in achieving full compensation. After assessing them, the best possible mechanism for compensating victims will be designed. In turn, it will allow the evaluation of to what extent such a scheme can ensure the achievement of full compensation.


Žygimantas Juška
PhD candidate at Leiden University. The author was the EU Fulbright Schuman grantee at Stanford University and the University of Michigan (2015-2016). Hence, this article is based on the study performed in the United States.
Article

Access_open Corporate Social Responsibility via Shareholders’ Proposals

Journal The Dovenschmidt Quarterly, Issue 1 2015
Keywords corporate social responsibility, shareholders, Rule 14a-8, social proposals, strategy
Authors Maria Paz Godoy Uson
AbstractAuthor's information

    Can shareholders’ proposals be considered as a mainstream alternative to incorporate social and environmental policies into the core businesses strategy? Proposing non-financial resolutions at the general meeting of shareholders is a form of shareholders’ activism that is shaping company’s direction. The American court case Lovenheim v. Iroquois Brands, Ltd. confirms that social and environmental issues, when significantly related to the core business, can give rise to new business directions firmly promoted by shareholders, resting authorial power to the board of directors in conducting the company’s direction. The US SEC Rule 14a-8 is widely used by social activists and institutional investors to influence the direction of business in becoming more sustainable. In virtue of the American Rule 14a-8, shareholders may include proposals in the company’s proxy materials and, thereby, compel a vote on the issue at the annual shareholders’ meeting. The result is that American shareholders’ proposals are being considered as an effective gateway to improve corporations’ social and environmental behaviour. This article examines, from a comparative perspective, the further developments of shareholders’ social proposals with the attempt to incorporate social and environmental policies into the core business. The article also suggests that the increasing demand of social proposals promoted by American shareholders versus the limited activity of shareholders’ proposals in Continental European jurisdictions is precipitating the process of converge between the main corporate governance models; the shareholder-oriented model and the stakeholder-oriented model, respectively. The issue of CSR via shareholders’ proposals as presented here is primarily based on literature and various cases related to SEC 14a-8, more in particular on lessons drawn from Lovenheim v. Iroquois Brands, Ltd.


Maria Paz Godoy Uson
PhD Fellow Maastricht University.
Article

Un-Constitutionality of the Dodd-Frank Act

Journal European Journal of Law Reform, Issue 1 2015
Keywords Dodd-Frank Act, enforcement games, systemic risk, financial services regulation, constitutional law
Authors Michael I.C. Nwogugu
AbstractAuthor's information

    ‘Restoring American Financial Stability Act’ of 2010 (‘RAFSA’ or the ‘Dodd-Frank Act’) was the first set of statutes in any country that attempted to simultaneously address the Global Financial Crisis, the national securities law framework, the structure of the executive branch of the federal government, and delegation of powers to federal government agencies (to the detriment of state governments). Other countries have enacted statutes that are similar to RAFSA. However, RAFSA and similar statutes in many countries are inefficient and have failed to address the fundamental problems in financial systems, and parts of RAFSA are unconstitutional.


Michael I.C. Nwogugu
Address: Enugu, Enugu State, Nigeria. E-mail: mcn2225@gmail.com; mcn2225@aol.com. Phone: 234-909-606-8162.
Article

Beyond Financialisation?

Transformative Strategies for More Sustainable Financial Markets in the European Union

Journal European Journal of Law Reform, Issue 4 2014
Keywords financialisation, financial market integration, financial reform, financial innovation, financial crisis
Authors Dieter Pesendorfer
AbstractAuthor's information

    The global financial crisis has led many regulators and lawmakers to a rethinking about current versus optimum financial market structures and activities that include a variety and even radical ideas about deleveraging and downsizing finance. This paper focuses on the flaws and shortcomings of regulatory reforms of finance and on the necessity of and scope for more radical transformative strategies. With ‘crisis economics’ back, the most developed countries, including the EU member states, are still on the edge of disaster and confronted with systemic risk. Changes in financial regulation adopted in the aftermath of the financial meltdown have not been radical enough to transform the overall system of finance-driven capitalism towards a more sustainable system with a more embedded finance. The paper discusses financialisation in order to understand the development trends in finance over the past decades and examines various theories to describe the typical trends and patterns in financial regulation. By focusing on a limited number of regulatory reforms in the European Union, the limitations of current reforms and the need for additional transformative strategies necessary to overcome the finance-driven accumulation regime are explored. Finally, the regulatory space for such transformative strategies and for taming finance in times of crisis, austerity, and increased public protest potential is analysed.


Dieter Pesendorfer
Queen’s University Belfast, School of Law, d.pesendorfer@qub.ac.uk.
Article

Access_open The EU Response to the Trade in Conflict Minerals from Central Africa

Journal The Dovenschmidt Quarterly, Issue 1 2014
Keywords corporate social responsibility, conflict minerals, private regulation, public regulation, European Union
Authors Tomas Königs, Sohail Wahedi and Tjalling Waterbolk
AbstractAuthor's information

    The trade in conflict minerals has led to the eruption and conservation of conflicts and gross violations of human rights, in particular in the central African region. In response, various public and private entities have taken measures to counter this development. The purpose of this essay is to analyze how the European Union, in light of its promotion of corporate social responsibility, should regulate the behaviour of multinational companies dealing with minerals from conflict-ridden areas. In light of recent initiatives taken by the UN, the United States and the mineral-extraction industry, it is examined whether the EU should adopt public regulation or whether it should continue its promotion of private self-regulatory regimes. The authors argue that the EU should promote regulation at the level that provides the strongest incentive for companies to comply with their duties. This article shows that both private and public regulation have their limitations in regulating the trade in conflict minerals and that the EU should thus adopt a mix of both. In doing so, the development of transparency norms can be delegated to companies, stakeholders and other affected parties, while the EU could provide for an effective accountability mechanism to enforce these norms.


Tomas Königs
Tomas Königs is a graduate student of the Legal Research Master (LLM) at Utrecht University.

Sohail Wahedi
Sohail Wahedi is a graduate student of the Legal Research Master (LLM) at Utrecht University.

Tjalling Waterbolk
Tjalling Waterbolk is a graduate student of the Legal Research Master (LLM) at Utrecht University.
Article

Access_open Business and Human Rights

The Next Chapter

Journal The Dovenschmidt Quarterly, Issue 4 2013
Authors John G. Ruggie
Author's information

John G. Ruggie
John G. Ruggie is the Berthold Beitz professor in human rights and international affairs at Harvard’s Kennedy School of Government, faculty chair of the Kennedy School’s Corporate Social Responsibility Initiative, and affiliated professor in international legal studies at Harvard Law School. From 2005 to 2011, he was the UN Secretary-General’s Special Representative for Business and Human Rights. He now chairs the boards of two non-profits, New York-based Shift: Putting Principles into Practice, and the London-based Institute on Human Rights and Business.
Article

Access_open The OECD Guidelines for Multinational Enterprises on Responsible Business Conduct

Soft Law with Hard Consequences

Journal The Dovenschmidt Quarterly, Issue 4 2013
Keywords Corporate Social Responsibility, Responsible Business Conduct, Supply chain responsibility, Labor standards, Human rights
Authors Roel Nieuwenkamp
AbstractAuthor's information

    OECD Guidelines for Multinational Enterprises are the most comprehensive international public standard on all areas of CSR with 46 adherent governments. The unique feature of the Guidelines is its grievance mechanism. The National Contact Points for the OECD Guidelines serve as a complaints and problem solving mechanism for trade unions and NGO’s related to for example human rights and labor standards. Since 2011 the Guidelines apply not only to investments but also to global supply chains. The concept of CSR Due Diligence in the supply chains is now a key pillar of CSR.


Roel Nieuwenkamp
Prof. Dr. Roel Nieuwenkamp is Chair of the OECD Working Party on Responsible Business Conduct. In this capacity, he supervises the corporate responsibility work of the OECD, invests in outreach to non-adherent countries and provides leadership to CSR programmes, e.g. on the financial sector, mining sector, etc. Since 2010, he is part-time professor of public administration at the University of Amsterdam.
Article

Access_open Business Enterprises and the Environment

Corporate Environmental Responsibility

Journal The Dovenschmidt Quarterly, Issue 4 2013
Keywords Corporate Environmental Responsibility, Environmental Due Diligence, Environmental CSR, Business enterprises and the environment, Environmental complement to Ruggie Framework
Authors Katinka D. Jesse and Erik V. Koppe
AbstractAuthor's information

    In 2011, following his 2005 initial mandate of the UN Commission on Human Rights and his extended 2008 mandate of the UN Human Rights Council, the Special Representative of the Secretary-General (SRSG) on the issues of human rights and transnational corporations and other business enterprises, Professor John Ruggie, issued the final text of the ‘Guiding Principles for the Implementation of the United Nations “Protect, Respect and Remedy Framework”‘. The 2008 Framework on Business and Human Rights and the complementing 2011 Guiding Principles consist of three pillars: the duty of states to protect human rights, the responsibility of business enterprises to respect human rights, and access to remedies for victims of human rights abuses. They currently qualify as the dominant paradigm in the corporate social responsibility (CSR) discourse, also because they now form part of various soft law and self-regulation initiatives. The Framework and Guiding Principles do not, however, specifically focus on environmental issues, but their systematic approach and structure do provide a model to address state duties and business responsibilities to care of the environment. This article is intended to complement the UN Framework and Guiding Principles on business and human rights with principles in the field of business and the environment. Hence, it is submitted that states have a customary duty to care for the environment; it is similarly submitted that business enterprises have a responsibility to care for the environment; and it is submitted that stakeholders must have access to remedies in relation to breaches of these duties and responsibilities.


Katinka D. Jesse
Dr. Katinka D. Jesse is post-doctoral research fellow at North-West University, South Africa.

Erik V. Koppe
Dr. Erik V. Koppe is assistant professor of public international law at Leiden Law School, The Netherlands. This article is partly based on research conducted by Jesse and Koppe as HUGO Fellows at the Netherlands Institute for Advanced Studies in Wassenaar in the fall of 2011.
Article

Access_open The Conflict Minerals Rule

Private Alternatives?

Journal The Dovenschmidt Quarterly, Issue 3 2013
Keywords corporate social responsibility, conflict minerals, codes of conduct, contract law
Authors A.L. Vytopil
AbstractAuthor's information

    This article discusses Section 1502 of the Dodd Frank Act in respect of the transparency certain American companies are to provide in respect of conflict minerals and the Rule drawn up by the Securities and Exchange Commission following this legislation. It explains the requirements it poses on companies. Moreover, it highlights some of the societal criticism in respect of the Securities and Exchange Commission Rule, the legal challenge of this Rule and the subsequent court verdict by the District Court for the District of Columbia. Finally, it elaborates upon private regulatory initiatives that could provide viable alternatives to conflict minerals legislation, and it concludes that for the Netherlands, private regulation would probably be more effective than legislation comparable to Section 1502 of the Dodd Frank Act.


A.L. Vytopil
Louise Vytopil, LL.B MA MSc, is a Ph.D.-candidate and assistant-professor at Utrecht University’s Molengraaff Institute for Private Law.
Article

Access_open Corporate Governance of Banks

Is More Board Independence the Solution?

Journal The Dovenschmidt Quarterly, Issue 2 2013
Authors Edyta M. Dorenbos and Alessio M. Pacces
Author's information

Edyta M. Dorenbos
Research fellow, Tilburg Law School, Department of Business Law and European Banking Center, Tilburg School of Economics and Management, Tilburg University, the Netherlands.

Alessio M. Pacces
Professor of Law and Finance, Erasmus School of Law, Erasmus University Rotterdam and Research Associate, European Corporate Governance Institute. We thank Sarah van den Brand for valuable research assistance.
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