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Article

Access_open Grandparents’ and grandchildren's right to contact under the European Convention on Human Rights

Journal Family & Law, September 2021
Keywords Grandparents, Grandchildren, Family life, Contact, Best interests of the child, Child's views
Authors Prof. K. Sandberg
AbstractAuthor's information

    The article explores the extent of the right to family life under Article 8 ECHR with regard to contact between grandparents and grandchildren. An analysis of decisions from the European Court of Human Rights shows that although such a right may exist, it is not strong and depends heavily on the circumstances of the specific case. The article points to what seems to be an inconsistency in the Courts approach to these cases and questions the position of the children and their views and best interests.


Prof. K. Sandberg
Kirsten Sandberg is Professor of Law at the University of Oslo Faculty of Law.
Article

Access_open Using restorative justice to rethink the temporality of transition in Chile

Journal The International Journal of Restorative Justice, Issue 2 2021
Keywords temporality, transitional justice, restorative justice, Chile, ongoingness, multilayeredness & multidirectionality
Authors Marit de Haan and Tine Destrooper
AbstractAuthor's information

    Assumptions of linear progress and a clean break with the past have long characterised transitional justice interventions. This notion of temporality has increasingly been problematised in transitional justice scholarship and practice. Scholars have argued that a more complex understanding of temporalities is needed that better accommodates the temporal messiness and complexity of transitions, including their ongoingness, multilayeredness and multidirectionality. Existing critiques, however, have not yet resulted in a new conceptual framework for thinking about transitional temporalities. This article builds on insights from the field of restorative justice to develop such a framework. This framework foregrounds longer timelines, multilayered temporalities and temporal ecologies to better reflect reality on the ground and victims’ lived experiences. We argue that restorative justice is a useful starting point to develop such a temporal framework because of its actor-oriented, flexible and interactive nature and proximity to the field of transitional justice. Throughout this article we use the case of Chile to illustrate some of the complex temporal dynamics of transition and to illustrate what a more context-sensitive temporal lens could mean for such cases of unfinished transition.


Marit de Haan
Marit de Haan is a PhD researcher at the Human Rights Centre of Ghent University, Belgium.

Tine Destrooper
Tine Destrooper is Associate Professor of Transitional Justice at the Human Rights Centre of Ghent University, Belgium. Contact author: marit.dehaan@ugent.be.

Lukas van den Berge
Lukas van den Berge is assistent professor of legal theory at Utrecht University.

    In its decision rendered on 28 February 2019, the Luxembourg Court of Appeal (Cour d’appel de Luxembourg) examined under which circumstances on-call duty performed at the workplace qualifies as actual working time.
    The issue raised was whether the time spent at night by an employee (i.e. the presence of an employee at the workplace) performing the work of a live-in carer was to be considered as ‘actual working time’.
    The Court expressly referred to EU case law and decided that the concept of actual working time is defined by two criteria, namely (i) whether the employee during such a period must be at the employer’s disposal, and (ii) the interference with the employee’s freedom to choose their activities.
    In view of the working hours provided for in the employment contract and in the absence of evidence proving that the employee would not have been at the employer’s home during her working hours, the Court found that the employee stayed at the employer’s home at night and at the employer’s request. It was irrelevant in this respect whether it was for convenience or not. It was further established that the employee could not leave during the night and return to her home and go about her personal business, so that the hours she worked at night were to be considered as actual working time.
    Given that the employee’s objections regarding her salary were justified (as the conditions of her remuneration violated statutory provisions), the Court decided that the dismissal was unfair.


Michel Molitor
Michel Molitor is the managing partner of MOLITOR Avocats à la Cour SARL in Luxembourg, www.molitorlegal.lu.

    The Supreme Court (SC) has unanimously decided that drivers engaged by Uber are workers rather than independent contractors. It also decided that drivers are working when they are signed in to the Uber app and ready to work.


Colin Leckey
Colin Leckey is a partner at Lewis Silkin LLP.

    On 22 May 2020, fifty-two members of the Hungarian parliament petitioned the Constitutional Court which was requested to establish the unconstitutionality of Section 6(4) of Government Decree no. 47/2020 (III. 18), its conflict with an international treaty and to annul it with retroactive effect to the date of its entry into force. According to Section 6(4) of the Decree “in a separate agreement, the employee and the employer may depart from the provisions of the Labour Code” (i.e. ‘absolute dispositivity’). The petition, among other things, alleged the violation of equal treatment and the right to rest and leisure. The Constitutional Court rejected the motion to establish the unconstitutionality of Section 6(4) and its annulment, since it was repealed on 18 June 2020. The Constitutional Court may, as a general rule, examine the unconstitutionality of the legislation in force, however it was no longer possible to examine the challenged piece of legislation in the framework of a posterior abstract norm control.


Kristof Toth
Kristof Toth is PhD student at the Karoli Gaspar University in Hungary.
Pending Cases

Case C-120/21, Paid Leave

LB – v – TO, reference lodged by the Bundesarbeitsgericht (Germany) on 26 February 2021

Journal European Employment Law Cases, Issue 2 2021
Keywords Paid Leave

    The Bucharest Tribunal has ruled that the time spent by employees in isolation at work during a Covid-19 pandemic state of emergency represents working time. However, the time spent in isolation at home following the period of isolation at work does not constitute rest time.


Andreea Suciu
Andreea Suciu is Managing Partner of Suciu | The Employment Law Firm.

Teodora Manaila
Teodora Manaila is a Senior Associate at Suciu | The Employment Law Firm, Bucharest, Romania.
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.

    According to German law, leave entitlements of an employee shall in principle expire at the end of the calendar year or a permissible carryover period. However, based on the case law of the ECJ, this shall only apply if the employer has previously enabled and summoned the employee to take leave and the employee has nevertheless not taken it. But what happens if an employee is incapacitated for work for a longer period of time and therefore is unable to take his or her annual leave? Does the employer also have to inform this employee about their leave entitlement? The Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) recently had to deal with this question in two cases and now the ECJ will have to address this matter. This is because the BAG has asked the ECJ to decide whether and when an employee’s entitlement to paid leave can expire if an employee loses their ability to work during the course of the leave year, while the employee could have taken at least part of the annual leave before becoming incapacitated for work, but the employee was not properly informed by the employer about their leave entitlement.


Katharina Gorontzi
Katharina Gorontzi is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.

Nina Stephan
Nina Stephan is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.

Jule Rosauer
Jule Rosauer is a legal trainee at Luther Rechtsanwaltsgesellschaft mbH.
Case Law

Access_open 2021/1 EELC’s review of the year 2020

Journal European Employment Law Cases, Issue 1 2021
Authors Ruben Houweling, Daiva Petrylaitė, Marianne Hrdlicka e.a.
Abstract

    Various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks.


Ruben Houweling

Daiva Petrylaitė

Marianne Hrdlicka

Attila Kun

Luca Calcaterra

Francesca Maffei

Jean-Philippe Lhernould

Niklas Bruun

Jan-Pieter Vos

Luca Ratti

Andrej Poruban

Anthony Kerr

Filip Dorssemont
Pending Cases

Case C-574/20, Social Insurance

XO – v – Finanzamt Waldviertel, reference lodged by the Bundesfinanzgericht (Austria) on 3 November 2020

Journal European Employment Law Cases, Issue 1 2021
Keywords Social Insurance

    The UK failed properly to implement EU health and safety law by restricting protection from detriment on health and safety grounds to ‘employees’, the High Court (HC) ruled in a recent case. Such protection should be extended to the broader category of ‘workers’. Importantly, this ruling potentially increases employers’ exposure to Covid-19-related health and safety claims.


Shalina Crossley
Shalina Crossley is Partner at Lewis Silkin LLP.

    Following ECJ case law, the Supreme Court of the Republic of Slovenia has ruled that a worker is entitled to compensation for unused annual leave in the event that the termination of employment has occurred 15 months after the end of the transfer period (i.e. the period for the transfer of the right to use annual leave) provided for in national legislation. The relevant transposition period is therefore three months longer than the transposition period set out in the Slovenian law.


Petra Smolnikar
Petra Smolnikar is the founder and manager at PETRA SMOLNIKAR LAW.

Tjaša Marinček
Tjaša Marinček is a student assistant at PETRA SMOLNIKAR LAW.
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

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.
Article

Environmental justice movements and restorative justice

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

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


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

Access_open The ECHR and Private Intercountry Adoptions in Germany and the Netherlands: Lessons Learned from Campanelli and Paradiso v. Italy

Journal Family & Law, January 2021
Keywords Private intercountry adoptions, surrogacy, ECHR, UNCRC, the best interests of the child
Authors dr. E.C. Loibl
AbstractAuthor's information

    Within the past half century, a market in adoptable children has emerged. The imbalance between the demand for and the supply of adoptable children, combined with the large sums of Western money, incite greedy actors in poor countries to illegally obtain children for adoption. This renders intercountry adoption conducive to abuses. Private adoptions are particularly prone to abusive and commercial practices. Yet, although they violate both international and national law, German and Dutch family courts commonly recognize them. They argue that removing the child from the illegal adopters would not be compatible with the rights and best interests of the individual child concerned. In 2017, the ECtHR rendered a ground-breaking judgement in Campanelli and Paradiso v. Italy. In this case, the Court dealt with the question as to whether removing a child from the care of an Italian couple that entered into a surrogacy agreement with a Russian clinic, given that surrogacy is illegal in Italy, violated Article 8 ECHR. Contrary to previous case law, in which the ECtHR placed a strong emphasis on the best interests of the individual child concerned, the Court attached more weight to the need to prevent disorder and crime by putting an end to the illegal situation created by the Italian couple and by discouraging others from bypassing national laws. The article argues that considering the shifting focus of the ECtHR on the prevention of unlawful conduct and, thus, on the best interests of children in general, the German and Dutch courts’ failure to properly balance the different interests at stake in a private international adoption by mainly focusing on the individual rights and interests of the children is difficult to maintain.

    ---

    In de afgelopen halve eeuw is er een markt voor adoptiekinderen ontstaan. De disbalans tussen de vraag naar en het aanbod van adoptiekinderen, in combinatie met grote sommen westers geld, zet hebzuchtige actoren in arme landen ertoe aan illegaal kinderen te verkrijgen voor adoptie. Dit maakt interlandelijke adoptie bevorderlijk voor misbruik. Particuliere adoptie is bijzonder vatbaar voor misbruik en commerciële praktijken. Ondanks het feit dat deze privé-adopties in strijd zijn met zowel internationaal als nationaal recht, worden ze door Duitse en Nederlandse familierechtbanken doorgaans wel erkend. Daartoe wordt aangevoerd dat het verwijderen van het kind van de illegale adoptanten niet verenigbaar is met de rechten en belangen van het individuele kind in kwestie. In 2017 heeft het EHRM een baanbrekende uitspraak gedaan in de zaak Campanelli en Paradiso t. Italië. In deze zaak behandelde het Hof de vraag of het verwijderen van een kind uit de zorg van een Italiaans echtpaar dat een draagmoederschapsovereenkomst met een Russische kliniek is aangegaan, in strijd is met artikel 8 EVRM, daarbij in ogenschouw genomen dat draagmoederschap in Italië illegaal is. In tegenstelling tot eerdere jurisprudentie, waarin het EHRM sterk de nadruk legde op de belangen van het individuele kind, hechtte het Hof meer gewicht aan de noodzaak om de openbare orde te bewaken en criminaliteit te voorkomen door een einde te maken aan de illegale situatie die door het Italiaanse echtpaar was gecreëerd door onder andere het omzeilen van nationale wetten. Het artikel stelt dat, gezien de verschuiving in de focus van het EHRM op het voorkomen van onwettig gedrag en dus op het belang van kinderen in het algemeen, de Duitse en Nederlandse rechtbanken, door met name te focussen op de individuele rechten en belangen van de kinderen, er niet in slagen om de verschillende belangen die op het spel staan ​​bij een particuliere internationale adoptie goed af te wegen.


dr. E.C. Loibl
Elvira Loibl is Assistant Professor Criminal Law and Criminology, Universiteit Maastricht.


Claire Toumieux
Claire Toumieux and Susan Ekrami is partner at Allen & Overy LLP in Paris, www.allenovery.com.

Susan Ekrami
Susan Ekrami is a senior associate with Allen & Overy LLP in Paris, www.allenovery.com.
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