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Hungarian State Practice

An Institution for a Sustainable Future

The Hungarian Ombudsman for Future Generations

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords intergenerational equity, rights of future generations, ombudsman for future generations, Hungary, right to environment
Authors Kinga Debisso and Marcel Szabó
AbstractAuthor's information

    The purpose of this article is to give an insight into the process leading up to the establishment of the Hungarian Ombudsman for Future Generations and its tasks: an almost 15-year-old, unique legal institution aiming to protect the interests of future generations. The Ombudsman for Future Generations is an example for the institutionalization of the principle of intergenerational justice. The article aims to introduce the characteristics and strengths of the current institutional design and the structural features that allow for the successful operation of the Ombudsman for Future Generations in Hungary. Following an introduction to the political and historical context in which the institution was established, the article describes in detail the Ombudsman’s work, responsibilities, most important functions, elaborating on some examples of its best practices and achievements. Finally, the article touches upon how the example and experiences of the Hungarian institution may be valuable for other countries in Europe and beyond.


Kinga Debisso
Kinga Debisso: political advisor, Ministry of Justice, Budapest.

Marcel Szabó
Marcel Szabó: professor of law, Pázmány Péter Catholic University, Budapest; justice, Constitutional Court of Hungary, Budapest.
Public Health Emergency: National, European and International Law Responses

European State Aid Rules in Times of Pandemic

Distorting Competition Between European Airlines?

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords state aid, air transport, airlines, COVID-19 pandemic, Ryanair
Authors Mónika Papp
AbstractAuthor's information

    The outbreak of the COVID-19 pandemic had an immediate and profound impact on mobility and, more specifically, on air passenger transport: airlines were quickly stranded, and the Member States granted aid to air carriers subject to specific eligibility criteria. The Commission reacted swiftly to challenges posed by the COVID-19 pandemic and adopted its Temporary Framework under which vast amounts could be disbursed to market operators. The most controversial eligibility condition set by the Member States is the holding of a national license. This article’s research questions are, first, to explore the conditions under which Member States can grant large amounts of state aid to airlines, and second, to assess whether the requirement to hold a national license is compatible with EU law. By addressing these issues, this article seeks to improve our understanding of EU law’s capacity to tackle distortions of competition.


Mónika Papp
Mónika Papp: research fellow, Centre for Social Sciences, Eötvös Loránd Research Network, Budapest; senior lecturer, ELTE Law School, Budapest.
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.
Case Notes

The Hungarian Constitutional Court’s Decision on the Protection of Forests

Decision No. 14/2020. (VII. 6.) AB of the Constitutional Court of Hungary

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

    In its decision delivered on 15 June 2020, the Hungarian Constitutional Court stated that several provisions of the 2017 amendment of the Act XXXVII of 2009 on Forest, Forest Protection and Forest Management are unconstitutional. The case was also an opportunity for the Constitutional Court to adopt another milestone decision on the interpretation and application of the environment-related provisions of the Fundamental Law and the “non-derogation principle”. The progressive decision of the Constitutional Court entrusts the Hungarian State with trustee duties. The present Case Note is an analysis of Decision No. 14/2020. (VII. 6.) AB of the Constitutional Court.


Attila Pánovics
Attila Pánovics: senior lecturer, University of Pécs.
Article

Opposition in Times of COVID-19 – To Support or Not to Support?

Journal Politics of the Low Countries, Issue 2 2021
Keywords minority government, rally-around-the-flag, COVID-19, mainstream parties, challenger parties, opposition, party goals
Authors Britt Vande Walle, Wouter Wolfs and Steven Van Hecke
AbstractAuthor's information

    COVID-19 has hit many countries all over the world, and its impact on (party) politics has been undeniable. This crisis situation functions as an opportunity structure incentivising opposition forces to support the government. Not much is known about what drives opposition parties to (not) support the government in crisis situations. This article integrates the literature on rally-around-the-flag, political opportunity structures, party types and party goals. More specifically, we focus on the behaviour of opposition parties towards the government’s crisis response to the COVID-19 pandemic. We analyse whether and how the party type influences the position of the party vis-à-vis the governmental coalition, focusing on the case of Belgium. We categorise the seven opposition parties in Belgium as challenger or mainstream parties and explain their behaviour on the basis of policy-, office- or vote-seeking motives. Our analysis is based on party voting behaviour, elite interviews and an analysis of the main plenary debates.


Britt Vande Walle
Britt Vande Walle is PhD Researcher at the KU Leuven Public Governance Instituted, funded by a FWO fellowship ‘Fundamental Research’. Her research focuses on comparative politics, political parties, and political party think tanks. ORCID: https://orcid.org/0000-0002-9594-9897.

Wouter Wolfs
Wouter Wolfs is Senior Researcher at the KU Leuven Public Governance Institute. His research interests include the European Union, political finance, legislative studies and political parties. ORCID: https://orcid.org/0000-0002-6214-5972.

Steven Van Hecke
Steven Van Hecke is Associate Professor in Comparative and EU Politics at the KU Leuven Public Governance Institute. His research focuses on Europarties, EU institutions and European integration history. ORCID: https://orcid.org/0000-0003-0215-5463.
Article

Access_open Enhanced Contact Rights for Grandparents? A Critical View from Spanish and Catalan Laws

Journal Family & Law, September 2021
Keywords Contact with grandchildren, Best interest of the child, Parental responsibilities
Authors prof. dr. J. Ribot Igualada
AbstractAuthor's information

    This article examines how Spanish and Catalan laws deal with claims of grandparents who seek contact with their grandchildren against the will of one or both parents, and the scope given to their rights. It starts by explaining the content and the goals of the legal reforms enacted in Spain at the beginning of the 21st century to promote grandparents’ interests. Then, it presents the case law developed in the interpretation of the relevant legal rules. The resulting state of the law is assessed, taking into account the interests of all the parties involved (parents, grandparents, and grandchildren). The experience of more than twenty years of application of the specific provisions concerning grandparents’ contact rights sheds light on the impact of giving grandparents stronger legal rights. However, it also prompts the question of whether this legislative choice might have brought about useless and potentially harmful litigation.


prof. dr. J. Ribot Igualada
Jordi Ribot Igualada is Professor of Civil Law at the Institute of European and Comparative Law and Director of the Institute of European and Comparative Private Law (University of Girona).

Ian D. Marder
Ian D. Marder is a Lecturer in Criminology in the Department of Law at Maynooth University, Ireland.

Meredith Rossner
Meredith Rossner is a Professor of Criminology at the Centre for Social Research and Methods at Australia National University, Australia. Contact author: Ian.Marder@mu.ie.
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

Consensual Accommodation of Sharia Law and Courts in Greece

Journal European Journal of Law Reform, Issue 2 2021
Keywords choice architecture, law reform, Molla Sali v. Greece, Mufti, multicultural accommodation, Muslim minority, nomoi group, Sharia law
Authors Nikos Koumoutzis
AbstractAuthor's information

    Having been exempted from a massive population exchange that took place between Greece and Turkey under the Treaty of Lausanne (1923), the Muslim minority of Western Thrace enjoys ever since a special status providing for the application of the Sharia law in family and succession matters, as well as the jurisdiction of the Mufti for the resolution of relevant disputes. A reform introduced by Law 4511/2018 marks a watershed moment in this long history. From now on, the Sharia law and the Mufti cease to be mandatory; their intervention requires the consent of the members of the minority, who also have the alternative to subject to the civil law and courts. This article tries to explore key features of the new model providing for an accommodation of the Muslim personal legal system based on choice. It focuses on the technique employed to structure the right of choice, on the proper ways for the exercise of choice, on the possibilities offered (or not) to make a partial choice only and revoke a previously made choice. In the end, a further question is raised, concerning how effective the right of choice may prove in the hands of women insiders, given that these are the most likely to experience pressure to demonstrate loyalty and not ignore the traditions and values – including the nomos – of their collective.


Nikos Koumoutzis
Nikos Koumoutzis is Associate Professor Law School at the University of Nicosia, ORCID ID: https://orcid.org/0000-0003-4362-2320
Article

Access_open Het classicistische politieke denken van Van Hogendorp

Journal Netherlands Journal of Legal Philosophy, Issue 1 2021
Keywords classicistisch politiek denken, constitutie, Van Hogendorp, Grondwet, politieke filosofie
Authors Alban Mik
AbstractAuthor's information

    Gijsbert Karel van Hogendorp is the auctor intellectualis of the 1818 Dutch constitution. It was his sketch for a new constitution that was used as a starting point for the deliberations of its original drafting committee. Van Hogendorp justifies his constitution as a restoration of the Burgundian constitution that applied before the Dutch Republic. In recent literature Van Hogendorp’s restorational argument is presented as an invention of tradition. In this article an alternative explanation is presented, namely that it is part of a form of classicist political thought that was common during the ancien régime. Van Hogendorp describes his constitution as a moderate monarchy, in which the three principles of monarchy, aristocracy and democracy are properly balanced. And he mainly defends this mixed regime by pointing out that it is a restoration of the old Burgundian constitution of the Netherlands. This way of reasoning is, as will be shown, typically classicistic.


Alban Mik
Alban Mik is onderzoeker aan de Afdeling Metajuridica, vakgroep Rechtsfilosofie van de Universiteit Leiden.
Editorial

Access_open Where Were the Law Schools?

On Legal Education as Training for Justice and the Rule of Law (Against the ‘Dark Sides of Legality’)

Journal Netherlands Journal of Legal Philosophy, Issue 1 2021
Authors Iris van Domselaar
Author's information

Iris van Domselaar
Iris van Domselaar is associate professor in legal philosophy and legal ethics at the Amsterdam Law School, University of Amsterdam.
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

Unwrapping the Effectiveness Test as a Measure of Legislative Quality

A Case Study of the Tuvalu Climate Change Resilience Act 2019

Journal European Journal of Law Reform, Issue 1 2021
Keywords effectiveness test, legislative quality, drafting process, Tuvalu Climate Change Resilience Act 2019
Authors Laingane Italeli Talia
AbstractAuthor's information


Laingane Italeli Talia
Laingane Italeli Talia is Senior Crown Counsel, Attorney General’s Office of Tuvalu
Article

Comments and Content from Virtual International Online Dispute Resolution Forum

1-2 March 2021, Hosted by the National Center for Technology and Dispute Resolution (NCTDR)

Journal International Journal of Online Dispute Resolution, Issue 1 2021
Authors David Allen Larson, Noam Ebner, Jan Martinez e.a.
Abstract

    For the past 20 years, NCTDR has hosted a series of ODR Forums in locations around the world. For 2021, the Forum was held virtually, with live presentation over a web video platform, and recorded presentations available to participants. A full recording of the sessions can be found through http://odr.info/2021-virtual-odr-forum-now-live/. The following items are narrative notes from some of the presentations:

    • David Allen Larson – ODR Accessibility

    • Noam Ebner – Human Touch

    • Jan Martinez & Amy Schmitz – ODR and Innovation

    • Frank Fowlie – Online Sport Dispute Resolution

    • Larry Bridgesmith – AI Introductory Notes

    • Julie Sobowale – AI and Systemic Bias

    • Clare Fowler – DEODRISE

    • Michael Wolf – ODR 2.0 System Design

    • Chris Draper – Algorithmic ODR

    • Zbynek Loebl – Open ODR


David Allen Larson

Noam Ebner

Jan Martinez

Amy Schmitz

Frank Fowlie

Larry Bridgesmith

Julie Sobowale

Clare Fowler

Michael Wolf

Chris Draper

Zbynek Loebl
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.
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

Restorative justice conferencing in Australia and New Zealand

Application and potential in an environmental and Aboriginal cultural heritage protection context

Journal The International Journal of Restorative Justice, Issue 1 2021
Keywords restorative justice conferencing, environmental offending, Aboriginal cultural heritage offending, connection to the environment
Authors Mark Hamilton
AbstractAuthor's information

    Indigenous people may suffer harm when the environment, sacred places and sacred objects are destroyed or damaged. Restorative justice conferencing, a facilitated face-to-face dialogue involving victims, offenders, and pertinent stakeholders has the potential to repair that harm. This article explores the use of conferencing in this context with case law examples from New Zealand and New South Wales, Australia. As will be discussed, the lack of legislative support for conferencing in the Land and Environment Court of New South Wales means it is doubtful that such conferencing will develop past its current embryonic state. As well as using restorative justice conferencing to repair harm from past criminality, this article suggests that further research should explore the use of restorative justice to resolve present conflict, and prevent future conflict, where there is a disconnect between non-Indigenous use of the environment and Indigenous culture embedded in the environment.


Mark Hamilton
Mark Hamilton, PhD, is a lawyer and teaching fellow in the Criminology and Criminal Justice programme and the Law programme at the University of New South Wales, Sydney, Australia. Contact: mark.hamilton@unsw.edu.au.

Lawrence Kershen
Lawrence Kershen QC is a mediator and restorative justice facilitator in London, United Kingdom. Contact author: kershen@europe.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

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.
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