As the COVID-19 pandemic continues to expose obsolete business practices and force companies into uncharted territories, a disruption worth (re)considering for companies is to replace their over-reliance on litigation with mediation. In order for mediators to make this transition more appetising for businesses, we must train mediators to: 1) think more holistically through interdisciplinary training; and 2) foster cognitive diversity amongst our pool.

In this article, a roadmap is proposed for both individual growth and eventual maturation of an organisation as regards how conflict is dealt with. Much can be achieved within organisations when the individuals who work there succeed in discovering and deploying their potential in order to deal with conflict in a mature manner.
An organisation is a compilation of individuals and the overall culture of the organisation is, ultimately, determined by the collective wisdom of the people that form it, when it comes to dealing with conflict and related difficulties. The authors of this article propose a shared view to unearth the potential of an individual working in an organisation to creatively and proactively manage conflict, thereby opening a corporate portal that empowers the adoption of beneficial solutions in response to disarming and preventing difficult organisational situations.
In Part I, the authors will discuss the transformation of the fear-based ego to clear a pathway for development to maturation of individuals and the overall culture of an organisation, following a multidimensional three-step Evolution System.

In entrenched conflict cases, mediation participants display a contradictory approach. They fail to take responsibility for their part in mediation and do not engage constructively in negotiations, whilst asserting a justificatory narrative for their behaviour. Usually they blame the other disputant, make excuses based on extraneous factors or even assert that the mediator is to blame for the lack of progress in mediation. In many entrenched conflict cases, there is no genuine commitment to negotiation at all on the part of the entrenched disputant. They are simply keen to present their case with an expectation that everyone else will fall into line with their demands. When entrenched conflict manifests, mediation is often being used as a forum for psychological game playing. Entrenched disputants tend to have a ‘win at all costs’ perspective. In some entrenched cases, mediation is simply being used as a tactic, with a view to fighting the case in court. In such circumstances, the entrenched disputant may simply see mediation as a means of eliciting further information about their opponent’s case, so as to benefit the entrenched disputant in subsequent court proceedings.

The article presents the status quo of the law of retrial in Germany and gives an overview of the law and practice of the latter in favour of the convicted and to the disadvantage of the defendant. Particularly, the formal and material prerequisites for a successful petition to retry the criminal case are subject to a detailed presentation and evaluation. Because no official statistics are kept regarding successful retrial processes in Germany, the actual number of judicial errors is primarily the subject of more or less well-founded estimates by legal practitioners and journalists. However, there are a few newer empirical studies devoted to different facets of the subject. These studies will be discussed in this article in order to outline the state of empirical research on the legal reality of the retrial procedure. Against this background, the article will ultimately highlight currently discussed reforms and subject these to a critical evaluation as well. The aim of the recent reform efforts is to add a ground for retrial to the disadvantage of the defendant for cases in which new facts or evidence indicate that the acquitted person was guilty. After detailed discussion, the proposal in question is rejected, inter alia for constitutional reasons.

A question that has preoccupied sociolegal scholars for ages is whether law can change ‘hearts and minds’. This article explores whether non-discrimination law can create social change, and, more particularly, whether it can change attitudes and beliefs as well as external behaviour. The first part examines how sociolegal scholars have theorised about the possibility and desirability of using law as an instrument of social change. The second part discusses the findings of empirical research on the social working of various types of non-discrimination law. What conclusions can be drawn about the ability of non-discrimination law to create social change? What factors influence this ability? And can non-discrimination law change people’s hearts and minds as well as their behaviour? The research literature does not provide an unequivocal answer to the latter question. However, the overall picture emerging from the sociolegal literature is that law is generally more likely to bring about changes in external behaviour and that it can influence attitudes and beliefs only indirectly, by altering the situations in which attitudes and opinions are formed.

This article seeks to examine the development of positive obligations under European law in the specific context of the rights of sexual minorities. It is clear that the law should respect and protect all sexualities and diverse intimate relationships without discrimination, and for this purpose it needs to ensure that sexual minorities can not only be free from state interference when expressing their sexuality in private, but that they should be given the right to express their sexuality in public and to have their intimate relationships legally recognised. In addition, sexual minorities should be protected from the actions of other individuals, when these violate their legal and fundamental human rights. Accordingly, in addition to negative obligations, European law must impose positive obligations towards sexual minorities in order to achieve substantive equality for them. The article explains that, to date, European law has imposed a number of such positive obligations; nonetheless, there is definitely scope for more. It is suggested that European law should not wait for hearts and minds to change before imposing additional positive obligations, especially since this gives the impression that the EU and the European Court of Human Rights (ECtHR) are condoning or disregarding persistent discrimination against sexual minorities.

International human rights law (IHRL) was established in the aftermath of the Second World War to prevent a reoccurrence of the atrocities committed in the name of fascism. Central to this aim was the recognition that out-groups are particularly vulnerable to rights violations committed by the in-group. Yet, it is increasingly apparent that out-groups are still subject to a wide range of rights violations, including those associated with mass atrocities. These rights violations are facilitated by the dehumanisation of the out-group by the in-group. Consequently, this article argues that the creation of IHRL treaties and corresponding monitoring mechanisms should be viewed as the first step towards protecting out-groups from human rights violations. By adopting the lens of dehumanisation, this article demonstrates that if IHRL is to achieve its purpose, IHRL monitoring mechanisms must recognise the connection between dehumanisation and rights violations and develop a positive State obligation to counter dehumanisation. The four treaties explored in this article, the European Convention on Human Rights, the International Covenant on Civil and Political Rights, the Framework Convention for the Protection of National Minorities and the International Convention on the Elimination of all forms of Racial Discrimination, all establish positive State obligations to prevent hate speech and to foster tolerant societies. These obligations should, in theory, allow IHRL monitoring mechanisms to address dehumanisation. However, their interpretation of the positive State obligation to foster tolerant societies does not go far enough to counter unconscious dehumanisation and requires more detailed elaboration.

This article argues that it is legitimate for the state to practice soft paternalism towards changing hearts and minds in order to prevent behaviour that is discriminatory. Liberals accept that it is not legitimate for the state to intervene in order to change how people think because ideas and beliefs are wrong in themselves. It is legitimate for the state to intervene with the actions of a person only when there is a risk of harm to others and when there is a threat to social coexistence. Preventive action of the state is legitimate if we consider the immaterial and material harm that discrimination causes. It causes harm to the social standing of the person, psychological harm, economic and existential harm. All these harms threaten peaceful social coexistence. This article traces a theory of permissible government action. Research in the areas of behavioural psychology, neuroscience and social psychology indicates that it is possible to bring about a change in hearts and minds. Encouraging a person to adopt the perspective of the person who has experienced discrimination can lead to empathetic understanding. This, can lead a person to critically evaluate her prejudice. The paper argues that soft paternalism towards changing hearts and minds is legitimate in order to prevent harm to others. It attempts to legitimise state coercion in order to eliminate prejudice and broader social patterns of inequality and marginalisation. And it distinguishes between appropriate and non-appropriate avenues the state could pursue in order to eliminate prejudice. Policies towards eliminating prejudice should address the rational and the emotional faculties of a person. They should aim at using methods and techniques that focus on persuasion and reduce coercion. They should raise awareness of what prejudice is and how it works in order to facilitate well-informed voluntary decisions. The version of soft paternalism towards changing minds and attitudes defended in this article makes it consistent with liberalism.

The entry into force of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) pushed state obligations to counter prejudice and stereotypes concerning people with disabilities to the forefront of international human rights law. The CRPD is underpinned by a model of inclusive equality, which views disability as a social construct that results from the interaction between persons with impairments and barriers, including attitudinal barriers, that hinder their participation in society. The recognition dimension of inclusive equality, together with the CRPD’s provisions on awareness raising, mandates that states parties target prejudice and stereotypes about the capabilities and contributions of persons with disabilities to society. Certain human rights treaty bodies, including the Committee on the Rights of Persons with Disabilities and, to a much lesser extent, the Committee on the Elimination of Discrimination against Women, require states to eradicate harmful stereotypes and prejudice about people with disabilities in various forms of interpersonal relationships. This trend is also reflected, to a certain extent, in the jurisprudence of the European Court of Human Rights. This article assesses the extent to which the aforementioned human rights bodies have elaborated positive obligations requiring states to endeavour to change ‘hearts and minds’ about the inherent capabilities and contributions of people with disabilities. It analyses whether these bodies have struck the right balance in elaborating positive obligations to eliminate prejudice and stereotypes in interpersonal relationships. Furthermore, it highlights the convergences or divergences that are evident in the bodies’ approaches to those obligations.

In this article, we focus on how the education system can be used to promote equality in the context of changing people’s hearts and minds – values, morals and mindsets. The duties contained in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (‘Equality Act’) bind private and public schools, educators, learners, governing bodies and the state. The Equality Act calls on the state and all persons to promote substantive equality, but the relevant sections in the Equality Act have not been given effect yet, and are therefore currently not enforceable. We set out how the duty to promote equality should be concretised in the Equality Act to inter alia use the education system to promote equality in schools; in other words, how should an enforceable duty to promote equality in schools be fashioned in terms of the Equality Act. Should the relevant sections relating to the promotion of equality come into effect in their current form, enforcement of the promotion of equality will take the form of obliging schools to draft action plans and submit these to the South African Human Rights Commission. We deem this approach inadequate and therefore propose certain amendments to the Equality Act to allow for a more sensible monitoring of schools’ duty to promote equality. We explain how the duty to promote equality should then play out practically in the classroom to facilitate a change in learners’ hearts and minds.

The Argentine and the French civil codes have recently undergone substantial modifications to their contract law provisions. These novel statutes could serve as models for future B2B contract law reforms in Latin American jurisdictions and beyond, as former Argentine and French laws have done in the past. The authors offer a contribution that paves the way in that direction with a systematic comparative analysis. As a starting point, this article unveils the influence that the modern unified laws on contracts (UNIDROIT Principles on International Commercial Contracts (PICC) and United Nations Convention on Contracts for the International Sale of Goods of 1980 (CISG)) have in Argentina’s and France’s new contract law. It also highlights the most obvious similarities and differences in both sets of rules. This contribution goes beyond simple tertium comparisons; the authors analyse which of the two laws offers better, or more effective, rules to achieve the desired contract law functions in various matters. Readers are provided with the best rule or solution to address the problem in question and, as the authors hope, they should conclude that both models provide for a range of complementary solutions for modern contract law reforms.

This article points out that the UK Human Rights Act, 1998 does not have a clear provision guaranteeing a person’s right to a nationality. Instead, this right is buried in the European Court of Human Rights decisions of Smirnova v Russia, 2003 and Alpeyeva and Dzhalagoniya v. Russia, 2018. In these cases, the Court stretched the scope of Article 8 of the European Convention on Human Rights, 1953 on non-interference with private life by public authorities to extend to nationality. The humanitarian crisis arising from the Windrush Scandal was caused by the UK Government’s decision to destroy the Windrush Generation’s landing cards in the full knowledge that for many these slips of paper were the only evidence of their legitimate arrival in Britain between 1948 and 1971.
The kindling for this debacle was the ‘hostile environment policy’, later the ‘compliant environment policy’ that operated to formally strip British citizens of their right to a nationality in flagrant violation of international and domestic law. This article argues that the Human Rights Act, 1998 must be amended to include a very clear provision that guarantees in the UK a person’s right to a nationality as a portal to a person’s inalienable right to life. This balances the wide discretion of the Secretary of State under Section 4 of the Nationality, Immigration and Asylum Act, 2002 to deprive a person of their right to a nationality if they are deemed to have done something seriously prejudicial to the interests of the UK.
This article also strongly recommends that the Preamble to the UK Human Rights Act, 1998 as a de facto bill of rights, be amended to put into statutory language Independent Advisor Wendy Williams’ ‘unqualified apology’ recommendation in the Windrush Lessons Learned Report for the deaths, serious bodily and mental harm inflicted on the Windrush Generation. This type of statutory contrition is in line with those of countries that have carried out similar grievous institutional abuses and their pledge to prevent similar atrocities in the future. This article’s contribution to the scholarship on the Human Rights Act, 1998 is that the Windrush Generation Scandal, like African slavery and British colonization, has long-term intergenerational effects. As such, it is fundamentally important that there is a sharp, comprehensive and enforceable legal mechanism for safeguarding the rights and interests of citizens as well as settled migrants of ethnically non-British ancestry who are clearly vulnerable to bureaucratic impulses.

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.

In this article, we investigate the moderating role of political sophistication on the vote for populist parties in Belgium. Building on the literature about the diverse determinants of populist party support, we investigate whether issue considerations and populism-related motivations play a bigger role in the electoral calculus of politically sophisticated voters.
Using data from the 2019 general elections in Belgium, we focus on the cases of Vlaams Belang (VB) and Parti du Travail de Belgique- Partij van de Arbeid (PTB-PVDA). We find evidence suggesting that political sophistication enhances the impact of populism-related motivations on populist party support, although the effects are contingent on the party. Moreover, we show that, for issue considerations, the moderation effect only comes into play for VB voters: the impact of anti-immigrant considerations is greater at increasing levels of political sophistication.

Recent research demonstrates that political parties in western Europe are generally structured along one dimension – and often take more or less similar ideological positions on the economic and cultural dimension – whereas the policy preferences of voters are structured two dimensionally; a considerable part of the electorate combines left-wing stances on one dimension with right-wing stances on the other. These ideologically ‘unserved’ voters are the main focus of this study. Using data from a large-scale survey in Flanders and Wallonia, we demonstrate how the salience of the two dimensions explains whether these unserved voters ultimately end up voting for a right-wing or a left-wing party. Specifically, we show that these voters elect a party that is ideologically closest on the dimension that they deem most important at that time. To summarise, the findings of this study confirm that salience is a key driver of electoral choice, especially for cross-pressured voters.

This study investigates how protest attitudes and ideological considerations affected the 2019 election results in Belgium, and particularly the vote for the radical right-wing populist party Vlaams Belang (VB) and for the radical left-wing populist party Partij van de Arbeid-Parti du Travail de Belgique (PVDA-PTB). Our results confirm that both protest attitudes and ideological considerations play a role to distinguish radical populist voters from mainstream party voters in general. However, when opposed to their second-best choice, we show that particularly protest attitudes matter. Moreover, in comparing radical right- and left-wing populist voters, the article disentangles the respective weight of these drivers on the two ends of the political spectrum. Being able to portray itself as an alternative to mainstream can give these parties an edge among a certain category of voters, albeit this position is also difficult to hold in the long run.

Recently, studies have burgeoned on the link between populism and demands for democratic reforms. In particular, scholars have been debating the link between populist citizens or voters and support for referendums. In this article, we examine voters of populist parties (Vlaams Belang (VB) and Parti du Travail de Belgique-Partij van de Arbeid (PTB-PVDA)) in Belgium in 2019 and we look at their attitudes towards various types of democratic reforms. We find that voters of populist parties differ from the non-populist electorate in their support for different kinds of reforms of representative democracy. Voters of VB and PTB-PVDA have in common stronger demands for limiting politicians’ prerogatives, for introducing binding referendums and for participatory budgeting. While Vlaams Belang voters are not significantly different from the non-populist electorate on advisory referendums, citizens’ forums or technocratic reform, PVDA-PTB voters seem more enthusiastic.

This article digs into the relationship between voters’ political resentment and their electoral choice in 2019 by focusing on the respondents’ emotions towards politics. Using the RepResent 2019 voter survey, eight emotions are analysed in their relation to voting behaviour: four negative (anger, bitterness, worry and fear) and four positive (hope, relief, joy and satisfaction). We confirm that voters’ emotional register is at least two-dimensional, with one positive and one negative dimension, opening the possibility for different combinations of emotions towards politics. We also find different emotional patterns across party choices, and more crucially, we uncover a significant effect of emotions (especially negative ones) on vote choice, even when controlling for other determinants. Finally, we look at the effect of election results on emotions and we observe a potential winner vs. loser effect with distinctive dynamics in Flanders and in Wallonia.