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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

Corporate Mediation and Company Law

State of the Art, Recent Trends and New Opportunities

Journal Corporate Mediation Journal, Issue 1 2021
Keywords corporate dispute, enforcement, mediation clause, stakeholders, sustainability, sustainable development
Authors Valentina Allotti
AbstractAuthor's information

    This article describes the legal framework on corporate mediation in Italy with a particular focus on the effects of the mediation clauses included in company by-laws. The available data on the use of corporate mediation indicate that such clauses are not commonly used. There is still resistance among the parties in a dispute to engage in dialogue through mediation, not only where corporate disputes are concerned. The author suggests that one way to expand the use of mediation would be to promote the introduction of mediation clauses in the articles of association of companies. She also suggests that recent trends in company law, notably the emergence of sustainability issues, related to the impact of business activity on the environment and society, and more broadly on human rights, may create new opportunities for the use of mediation to prevent and solve corporate-related disputes.


Valentina Allotti
Valentina Allotti is a Senior Legal Policy Officer, Capital Markets and Listed Companies Area, Assonime. Views expressed by the author are her own and do not necessarily represent those of Assonime.
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

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.
Article

Building Legislative Frameworks

Domestication of the Financial Action Task Force Recommendations

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

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


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

Regional Differentiation in Europe, between EU Proposals and National Reforms

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

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


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

Investment Arbitration and the Public Interest

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords BIT, ILA, ISDS, unclean hands, regulatory chill
Authors Gábor Hajdu
AbstractAuthor's information

    The study focuses on analyzing conflicts between (international) investment arbitration and the public interest, dividing its contents into five substantive sections. First, it summarizes the common characteristics of international investment arbitration (distinguishing procedural and substantive elements), followed by its most pressing issues (including frequent criticism such as lack of consistency, asymmetrical proceedings, regulatory chill, etc.). Afterwards, selected investment arbitration cases are examined, grouped based on which areas of public interest they affected (environmental protection, employee rights, public health). These cases all hold relevance and offer different insights into the workings of investment arbitration, which serve to illuminate the complex interplay between foreign investor and public interest. The cases also provide the foundation for the study’s conclusions, where key observations are made on the central subjects.


Gábor Hajdu
Gábor Hajdu: PhD student, University of Szeged.

    The central question in this case was what was the objectively applicable law to an employment contract concluded between a Turkish airline and a Dutch co-pilot, in accordance with Article 8 Rome I. The ruling is particularly interesting for the relation between the habitual place of work and the exception clause and points to the elements that should be taken into account.


Amber Zwanenburg
Amber Zwanenburg is a PhD candidate at the Erasmus University in Rotterdam and member of the editorial board of EELC.

Jan-Pieter Vos
Jan-Pieter Vos is a teacher and PhD candidate at Erasmus University Rotterdam, and member of the editorial board of EELC.

    The recent spread of the Covid-19 pandemic has shown how economic vulnerability varies considerably across European Member States (MSs), and so does social protection in the European Union (EU). The social and economic consequences of the pandemic have impacted asymmetrically national labour markets and exacerbated existing disparities and contradictions. A measure that most governments have introduced in the immediate aftermath has been that of making financial support available to those self-employed workers who lost fully or in part their income. Most MSs have employed quantitative thresholds to identify those self-employed more in need of public subsidies and have proportioned them according to the pre-pandemic levels of income, on the condition that they have been officially recorded as taxable revenues.
    Despite their heterogeneity, we can reasonably affirm that the self-employed have been one of the most exposed clusters of the labour market to in-work poverty and economic uncertainty, which proved to be particularly problematic in periods of unforeseeable crisis, such as that of 2008 and even more so that of 2020. This article explores the range of EU-level measures designed for the self-employed and questions their potential impact on MSs’ legislation.


Luca Ratti
Luca Ratti is a professor at the University of Luxembourg.
Article

Access_open Ship Recycling Financial Instruments: A Tax or Not a Tax?

Some Brief Reflections

Journal Erasmus Law Review, Issue 2 2020
Keywords Ship Recycling Fund, Ship Recycling License, green ship scrapping, EU concept of tax, earmarked tax
Authors Han Kogels and Ton Stevens
AbstractAuthor's information

    In this article the question is reviewed whether two by the EU Commission proposed financial instruments to stimulate ‘green’ ship scrapping, (i) a Ship Recycling Fund (SRF) and (ii) a Ship Recycling License (SRL), might be qualified as a ‘tax’ under Article 192(2) TFEU. Qualification as such a “tax” would mean that the EU Commission can only introduce such a financial instrument with unanimity voting. The authors first explore the concept of ‘tax’ in the TFEU in general and in Article 192(2) TFEU in particular. Based on this analysis, the authors conclude that levies paid to an SRF might be qualified as an ‘earmarked tax’ falling within the definition of a ‘fiscal provision’ in the meaning of Article 192(2) TFEU, which means that levies to such a fund can only be introduced by unanimity voting. The SRL fee consists of two elements: (i) a fee to cover administrative expenses and (ii) a contribution to a savings account. The fee to cover administrative expenses is qualified by the authors as a retribution that should not be qualified as a fiscal provision in the meaning of Article 192(2) TFEU. The contribution to a blocked savings account can neither be qualified as a tax nor as a retribution. Therefore, the SRL fee can be introduced without unanimity voting by the EU Council.


Han Kogels
H.A. Kogels is Emeritus professor of European tax law Erasmus School of Law.

Ton Stevens
A.J.A. Stevens is Professor of corporation tax law Tilburg University and of counsel Loyens & Loeff, Rotterdam. He was previously holding the chair of international tax law at Erasmus School of Law and initially involved in the ship recycling financial instrument project but did not participate in the drafting of the final report.
Article

Social Impact Assessment and Mediation

Journal Corporate Mediation Journal, Issue 1 2020
Keywords Social impact, Business to Community mediation
Authors Eelco De Groot
AbstractAuthor's information

    A Social Impact Assessment is often a formal requirement to determine and prevent social risks at greenfield development of complex infrastructural projects. This article discusses the background and building blocks with the different tiers of Business to Community mediation; a neutral, facilitated, dialogue and information sharing, negotiation, joint fact-finding and formal mediation.


Eelco De Groot
Eelco de Groot is an advisor at Social License and senior lecturer Social Risk Management at the TU Delft.
Article

Access_open The Effectiveness Paradigm in Financial Legislation – Is Effectiveness Measurable?

Journal Erasmus Law Review, Issue 2 2020
Keywords effectiveness, effectiveness measurement methodologies, financial legislation, legislative objective, product approval governance
Authors Jeroen Koomans
AbstractAuthor's information

    How can you determine if financial legislation is effective? This article seeks to identify three characteristics that make up the basis for an effectiveness review, being the determination what the legislative objective is, who is it aimed at and what approach is taken to achieve this objective. Determining the legislative objective may prove to be a challenging undertaking, and the uncertainties that come with that affect the other two characteristics as well. And even if a clear legislative objective can be established, how can you be sure that its achievement was in fact attributable to the legislation under review? What do you compare your results to absent a baseline measurement and how can the vast number of variables that affect the effectiveness of the legislation under review be accounted for, if at all? Is effectiveness in financial legislation at all measurable and, when measured, what is its value in practice?


Jeroen Koomans
Jeroen Koomans is affiliated to the University of Amsterdam FEB Academy for Banking and Insurance and employed by ABN AMRO Bank N.V.
Article

Access_open Age Limits in Youth Justice: A Comparative and Conceptual Analysis

Journal Erasmus Law Review, Issue 1 2020
Keywords youth justice, age limits, minimum age of criminal responsibility, age of criminal majority, legal comparison
Authors Jantien Leenknecht, Johan Put and Katrijn Veeckmans
AbstractAuthor's information

    In each youth justice system, several age limits exist that indicate what type of reaction can and may be connected to the degree of responsibility that a person can already bear. Civil liability, criminal responsibility and criminal majority are examples of concepts on which age limits are based, but whose definition and impact is not always clear. Especially as far as the minimum age of criminal responsibility (MACR) is concerned, confusion exists in legal doctrine. This is apparent from the fact that international comparison tables often show different MACRs for the same country. Moreover, the international literature often seems to define youth justice systems by means of a lower and upper limit, whereas such a dual distinction is too basic to comprehend the complex multilayer nature of the systems. This contribution therefore maps out and conceptually clarifies the different interpretations and consequences of the several age limits that exist within youth justice systems. To that extent, the age limits of six countries are analysed: Argentina, Austria, Belgium, the Netherlands, New Zealand and Northern Ireland. This legal comparison ultimately leads to a proposal to establish a coherent conceptual framework on age limits in youth justice.


Jantien Leenknecht
Jantien Leenknecht is PhD Fellow of the Research Foundation Flanders (FWO) at KU Leuven, Institute of Social Law and Leuven Institute of Criminology.

Johan Put
Johan Put is Full Professor at KU Leuven, Institute of Social Law and Leuven Institute of Criminology.

Katrijn Veeckmans
Katrijn Veeckmans is PhD Fellow at KU Leuven, Institute of Social Law and Leuven Institute of Criminology.
Article

Access_open On the Eve of Web-Harvesting and Web-Archiving for Libraries in Greece

Journal Erasmus Law Review, Issue 2 2019
Keywords web harvesting, data analysis, text & data mining, TDM: Proposal EU Copyright Directive
Authors Maria Bottis, Marinos Papadopoulos, Christos Zampakolas e.a.
AbstractAuthor's information

    This conference paper submitted on the occasion of the 8th International Conference on Information Law and Ethics (University of Antwerp, December 13-14, 2018) that focused on modern intellectual property governance and openness in Europe elaborates upon the Text and Data Mining (TDM) issue in the field of scientific research, which is still-by the time of composition of this paper-in the process of discussion and forthcoming voting before the European Parliament in the form of provision(s) included in a new Directive on Copyright in the Digital Single Market. TDM is included in the proposal for a Directive of the European parliament and of the Council on copyright in the Digital Single Market-Proposal COM(2016)593 final 2016/0280(COD) that was submitted to the European Parliament.


Maria Bottis
Associate Professor, Department of Archives, Library Science and Museology, Ionian University, Corfu, Greece.

Marinos Papadopoulos
Attorney-at-Law, Independent Researcher, PhD, MSc, JD, Athens, Greece.

Christos Zampakolas
Archivist/Librarian, Independent Researcher, PhD, MA, BA, Ioannina, Greece.

Paraskevi Ganatsiou
Educator, MA, BA, Prefecture of Ionian Islands, Corfu, Greece.
Article

Access_open Access and Reuse of Machine-Generated Data for Scientific Research

Journal Erasmus Law Review, Issue 2 2019
Keywords machine-generated data, Internet of Things, scientific research, personal data, GDPR
Authors Alexandra Giannopoulou
AbstractAuthor's information

    Data driven innovation holds the potential in transforming current business and knowledge discovery models. For this reason, data sharing has become one of the central points of interest for the European Commission towards the creation of a Digital Single Market. The value of automatically generated data, which are collected by Internet-connected objects (IoT), is increasing: from smart houses to wearables, machine-generated data hold significant potential for growth, learning, and problem solving. Facilitating researchers in order to provide access to these types of data implies not only the articulation of existing legal obstacles and of proposed legal solutions but also the understanding of the incentives that motivate the sharing of the data in question. What are the legal tools that researchers can use to gain access and reuse rights in the context of their research?


Alexandra Giannopoulou
Institute for Information Law (IViR) – University of Amsterdam.

    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

Law Reform in Ireland

Implementation and Independence of Law Reform Commission

Journal European Journal of Law Reform, Issue 4 2019
Keywords law reform, statute law revision, better regulation, access to legislation, lawyer’s law
Authors Edward Donelan
AbstractAuthor's information

    This article describes the origins and work of the Law Reform Commission in Ireland. The model follows that in Common Law countries. Its work includes both substantive law reform and statute law revision (weeding out spent or unused statutes and undertaking consolidation or other work to make statute law more accessible.) The work of the Commission focuses on ‘lawyers’ law’ and, therefore, avoids subjects that could be politically controversial. Consequentially, the bulk of its recommendations are accepted and translated into legislation.


Edward Donelan
Edward Donelan, PhD, M.A., Barrister-at-Law (Kings Inns, Dublin, Middle Temple, London), Dip. Eur. Law, Dip. Arb. Better Regulation and Legislative Drafting Expert, currently working on projects with the Attorney General in Botswana to develop a programme of law reform for the newly established Law Reform Unit in the Chambers of the Attorney General.
Article

The New Regulation Governing AIR, VIR and Consultation

A Further Step Forward Towards ‘Better Regulation’ in Italy

Journal European Journal of Law Reform, Issue 4 2019
Keywords regulation, RIA, regulatory impact analysis, impact assessment, evaluation, consultation
Authors Victor Chimienti
AbstractAuthor's information

    This article describes the scope and contents of the newly adopted regulation governing regulatory impact analysis (RIA) and ex post evaluation of regulation (ExPER) in the Italian legal system. The article shows that this regulation has the potential to improve regulatory governance in Italy. Not only does it introduce innovations designed to increase transparency and participation, especially through strengthened consultation and communication mechanisms, but it also aims to improve the quality and effectiveness of regulatory analysis and evaluation activities. How the new regulation will be applied in practice, however, remains to be seen. In the meantime, the new set of rules are a welcome addition to Italy’s Better Regulation policy.


Victor Chimienti
Victor Chimienti is an international and EU lawyer currently working as a free-lance consultant on donor funded projects. In 1997, he graduated in Law with full marks at the University of Bari “Aldo Moro” (Italy), and, in 2006, obtained his Ph.D in International and EU Law from the same university. Meanwhile, he had attended post-graduate legal studies at LUISS University in Rome, Italy, specialising in international and EC business law. Dr. Chimienti has also served as Lecturer in International and Trade Law at the University of Foggia, Italy, and as Research Scholar in International & Comparative Law at the University of Michigan, USA. Among others, he specialises in Better Regulation tools and procedures, such as Regulatory Impact Analysis (RIA), Ex-Post Evaluation of Legislation, Monitoring, and Public Consultation.
Article

ODR as a Public Service

The Access to Justice-Driven Canadian Experience

Journal International Journal of Online Dispute Resolution, Issue 2 2019
Keywords ODR, access to justice, courts, legal process, sense of fairness
Authors Nicolas Vermeys and Jean-François Roberge
AbstractAuthor's information

    Canadian courts and tribunals are successfully incorporating online dispute resolution (ODR) mechanisms into their processes in order to offer user-centric dispute resolution systems aimed at increasing access to justice. Although they use different approaches, three such examples, British Columbia’s Civil Resolution Tribunal, Ontario’s Condominium Authority Tribunal, and Quebec’s PARLe-OPC platform, have all demonstrated how public ODR can increase litigants’ sense of justice while respecting basic legal tenets. This article serves as a short introduction to this user-centric Canadian approach.


Nicolas Vermeys
Nicolas Vermeys is the Associate Dean of Programs at the Université de Montréal’s Faculty of law, the Associate director of the Cyberjustice Laboratory, and a Researcher at the Centre de recherche en droit public (CRDP).

Jean-François Roberge
Jean-François Roberge is a Professor and the Director of the Dispute Prevention and Resolution programmes at the Université de Sherbrooke Faculty of law.
Article

Fiscal Equalization among the Hungarian Local Governments – Autonomy v. Equity

Decision No. 3383/2018. (XII. 14.) AB of the Constitutional Court of Hungary

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords European Charter of Local Self-Government, financial resources of local authorities, fiscal equalization, solidarity levy, Constitutional Court of Hungary
Authors Gábor Kecső
AbstractAuthor's information

    The 2017 budget of Hungary contains a regime on fiscal equalization among local governments that distracts funds from the municipalities with relatively high taxing power within the country. The respective norms were reviewed by the Constitutional Court from the perspective of international law, since Hungary is one of the member parties to the European Charter of Local Self-Government. This note highlights the essence of the abovementioned decision and discusses some underlying issues of allocating public tasks and funds between the governmental layers in a unitary country where the per capita revenue of local taxes is very divergent.


Gábor Kecső
Senior lecturer, ELTE Law School, Budapest; counselor, Constitutional Court of Hungary.
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