Search result: 210 articles

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

Brunilda Pali
Brunilda Pali is a Senior Researcher at the Leuven Institute of Criminology, KU Leuven, Belgium, and a Lecturer at the Department of Political Sciences, University of Amsterdam, the Netherlands.

Ivo Aertsen
Ivo Aertsen is Emeritus Professor of Criminology, Leuven Institute of Criminology, KU Leuven, Belgium. Contact author: Brunilda.pali@kuleuven.be.
Article

Using restorative justice to rethink the temporality of transition in Chile

Journal The International Journal of Restorative Justice, Issue Online first 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 un/finished 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 de Haan at marit.dehaan@ugent.be.
Article

The Impact of VAAs on Vote Switching at the 2019 Belgian Legislative Elections: More Switchers, but Making Their Own Choices

Journal Politics of the Low Countries, Issue Online FIrst 2021
Keywords voting advice applications, vote switching, vote choice, elections and electoral behaviour, voters/citizens in Belgium, VAA
Authors David Talukder, Laura Uyttendaele, Isaïa Jennart e.a.
AbstractAuthor's information

    During electoral campaigns, the use of voting advice applications (VAAs) has become increasingly widespread. Consequently, scholars have examined both the patterns of usage and their effects on voting behaviour. However, existing studies lead to conflicting findings. In this article, we take a closer look at the effect of De Stemtest/Test électoral (a VAA developed by academics from the University of Louvain and the University of Antwerp, in partnership with Belgian media partners) on vote switching. More specifically, we divide this latter question into two sub-questions: (1) What is the impact of a (dis)confirming advice from the VAA on vote switching? (2) Do VAA users follow the voting advice provided by the VAA? Our study shows that receiving a disconfirming advice from the VAA increases the probability of users to switch their vote choice.


David Talukder
David Talukder is a PhD candidate at the Université libre de Bruxelles (ULB, Belgium). He works within the research project “Reforming Representative Democracy”. His main research interests are democratic innovations, political representation, and democratic reforms.

Laura Uyttendaele
Laura Uyttendaele is a PhD candidate at the University of Louvain (UC Louvain, Belgium). Her main research interests are Voting Advice Applications, Youth & politics, political attitudes and behaviours, and experimental methods.

Isaïa Jennart
Isaïa Jennart is a PhD candidate (Universiteit Antwerpen & VUB, Belgium) interested in public opinion, electoral campaigns, voting behaviour, Voting Advice Applications and political knowledge. He mainly studies citizens’ knowledge of parties’ issue positions.

Benoît Rihoux
Benoît Rihoux is full professor in political science at the University of Louvain (UC Louvain, Belgium). His research covers comparative methods (especially QCA) as well as diverse topics in comparative politics, political organizations and political behaviour.
Article

Beizaras and Levickas v. Lithuania

Recognizing Individual Harm Caused by Cyber Hate?

Journal East European Yearbook on Human Rights, Issue 1 2020
Keywords hate speech, verbal hate crime, cyber hate, effective investigation, homophobia
Authors Viktor Kundrák
AbstractAuthor's information

    The issue of online hatred or cyber hate is at the heart of heated debates over possible limitations of online discussions, namely in the context of social media. There is freedom of expression and the value of the internet in and of itself on the one hand, and the need to protect the rights of victims, to address intolerance and racism, as well as the overarching values of equality of all in dignity and rights, on the other. Criminalizing some (forms of) expressions seems to be problematic but, many would agree, under certain circumstances, a necessary or even unavoidable solution. However, while the Court has long ago declared as unacceptable bias-motivated violence and direct threats, which under Articles 2, 3 and 8 in combination with Article 14 of the ECHR, activate the positive obligation of states to effectively investigate hate crimes, the case of Beizaras and Levickas v. Lithuania presented the first opportunity for the Court to extend such an obligation to the phenomenon of online verbal hate crime. This article will first address the concepts of hate speech and hate crime, including their intersection and, through the lens of pre-existing case law, identify the key messages for both national courts and practitioners. On the margins, the author will also discuss the issue of harm caused by verbal hate crime and the need to understand and recognize its gravity.


Viktor Kundrák
Viktor Kundrák has worked for the OSCE Office for Democratic Institutions and Human Rights (ODIHR) as a Hate Crime Officer since 2018. He has been responsible for ODIHR’s hate crime reporting, trained police, prosecutors and judges, and provided legislative and policy support at the national level. He is also a PhD candidate at Charles University in Prague. The views in this article are his own and do not necessarily represent those of ODIHR. Some of the opinions are based on an article published in Czech earlier this year (see V. Kundrák & M. Hanych, ‘Beizaras and Levickas v. Lithuania (Verbal Hate Crime on Social Network and Discriminatory Investigation)’, The Overview of the Judgments of the European Court of Human Rights, Vol. 3, 2020.
Article

Covid-19 Emergency Prison Release Policy: A Public Health Imperative and a Rule of Law Challenge

Journal European Journal of Law Reform, Issue 4 2020
Keywords emergency prison release, rule of law, democracy, reducing prison overcrowding, prisoner rights, appropriate sanctions for white collar criminals, alternatives to custodial sentences
Authors Victoria Jennett
AbstractAuthor's information

    Many countries are implementing emergency releases of people from prison to mitigate the spread of Covid-19. Such measures, while critical to public health, can enable the unjust release from prison of politically connected and wealthy individuals convicted of corruption offences, thereby undermining the rule of law and democratic values by weakening public trust in the justice system. To reduce overcrowding of prisons while ensuring that white-collar criminals are appropriately sanctioned, one strategy is to impose alternatives to custodial sentences that ensure appropriate sanctioning of convicted criminals while de-densifying prisons – an approach that could be considered for non-emergency times as well.
    Main points:

    • Emergency prison release mechanisms to prevent the spread of Covid-19 can pose corruption risks owing to weak design, uneven implementation and inadequate oversight.

    • Such releases take three main forms: prisoner amnesties declared by governments; emergency release procedures drafted by governments and implemented by prison directors; and court decisions to release individual prisoners or set out frameworks to determine who is eligible for release.

    • These emergency procedures can enable the unjust release of politically connected prisoners convicted of corruption offences and undermine public trust in the rule of law and the justice system.

    • To help maintain rule of law during the emergency, alternatives to custodial sentences in line with international standards can be imposed on newly released persons who have been convicted of corruption crimes.

    • Conditions attached to releases can include, among others, status penalties, economic sanctions and monetary penalties, confiscation or expropriation of assets, and restitution or compensation to victims.

    • In non-emergency times, as well, alternatives to custodial sentences can be used to sanction those convicted of corruption crimes as a means to mitigate financial and social damage caused by corruption and reduce prison overcrowding.


Victoria Jennett
Dr. Victoria Jennett is an independent consultant to governments and international organisations on justice sector reform. She acknowledges the insights from Sofie Arjon Shuette at the U4 Anti-Corruption Resource Centre, UNODC colleagues and prison officials in the UK and the USA on an earlier version of this paper.
Article

Does the Fight Against the Pandemic Risk Centralizing Power in Pakistan?

Journal European Journal of Law Reform, Issue 4 2020
Keywords PTI government, 18th amendment, 1973 Constitution, lockdown, economic impact
Authors David A. Thirlby
AbstractAuthor's information

    When the pandemic struck Pakistan, there was a high-profile divergence between how the federal government and the provincial government of Sindh responded. This points to a tension between the need for a national approach to tackle the pandemic and the prerogative of the provinces to deal with health issues under its devolved powers. These powers were the result of the 18th amendment, which restored a parliamentary federal democracy. Power has also been decentralized from executive presidents to parliamentary forms of government. However, parliamentary systems centralize power within the executive: a trend which the pandemic has reinforced. The article will explore the various interplays although it is the economic landscape which will prove most challenging. Although the emergence of a national centralized approach to combat the pandemic points to a weakening of the devolution process and therefore the reasoning behind the 18th amendment, the situation is more complex which this article seeks to explore.


David A. Thirlby
David A. Thirlby is Senior Programme Manager Asia, Westminster Foundation for Democracy
Article

Towards Online Dispute Resolution-Led Justice in China

Journal International Journal of Online Dispute Resolution, Issue 2 2020
Keywords Online Dispute Resolution, smart court, internet court, access to justice, China
Authors Carrie Shu Shang and Wenli Guo
AbstractAuthor's information

    The use of online dispute resolution (ODR) in courts is a growing topic of interest. By focusing on the recent development of ODR-connected smart courts in China, this article explores ODR’s potential impact on Chinese legal systems from three aspects: role of courts and the legal profession, due process rights, and information safety. By focusing on changing dispute resolution theories – from emphasizing on conflict resolution to dispute prevention – the article argues that ODR-led court reforms rose to the centre because the reform caters to specific purposes of the recent series of reforms conducted under the auspices of the Rule of Law campaign, by prioritizing efficiency goals and attempting to enhance individualist justice experiences. In this article, we define the meaning of ODR in China and describe and categorize ODR technologies that are currently in use in China. Based on these general findings and promising technological options of ODR, we also recommend ways to better implement ODR in Chinese courts to take full advantage of technological advancements.


Carrie Shu Shang
Carrie Shu Shang, Assistant Professor, Coordinator, Business Law program, California State Polytechnic University, Pomona,

Wenli Guo
Wenli Guo, Ph.D., Assistant President, Beiming Software Co. Ltd., President, Internet Nomocracy Institute of Beiming Software Co. Ltd.,
Article

Access_open The Potential of Positive Obligations Against Romaphobic Attitudes and in the Development of ‘Roma Pride’

Journal Erasmus Law Review, Issue 3 2020
Keywords Roma, Travellers, positive obligations, segregation, culturally adequate accommodation
Authors Lilla Farkas and Theodoros Alexandridis
AbstractAuthor's information

    The article analyses the jurisprudence of international tribunals on the education and housing of Roma and Travellers to understand whether positive obligations can change the hearts and minds of the majority and promote minority identities. Case law on education deals with integration rather than cultural specificities, while in the context of housing it accommodates minority needs. Positive obligations have achieved a higher level of compliance in the latter context by requiring majorities to tolerate the minority way of life in overwhelmingly segregated settings. Conversely, little seems to have changed in education, where legal and institutional reform, as well as a shift in both majority and minority attitudes, would be necessary to dismantle social distance and generate mutual trust. The interlocking factors of accessibility, judicial activism, European politics, expectations of political allegiance and community resources explain jurisprudential developments. The weak justiciability of minority rights, the lack of resources internal to the community and dual identities among the Eastern Roma impede legal claims for culture-specific accommodation in education. Conversely, the protection of minority identity and community ties is of paramount importance in the housing context, subsumed under the right to private and family life.


Lilla Farkas
Lilla Farkas is a practising lawyer in Hungary and recently earned a PhD from the European University Institute entitled ‘Mobilising for racial equality in Europe: Roma rights and transnational justice’. She is the race ground coordinator of the European Union’s Network of Legal Experts in Gender Equality and Non-discrimination.

Theodoros Alexandridis
Theodoros Alexandridis is a practicing lawyer in Greece.
Article

The Windrush Scandal

A Review of Citizenship, Belonging and Justice in the United Kingdom

Journal European Journal of Law Reform, Issue 3 2020
Keywords Windrush generation, statelessness, right to nationality, genocide, apologetic UK Human Rights Act Preamble
Authors Namitasha Goring, Beverley Beckford and Simone Bowman
AbstractAuthor's information

    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.


Namitasha Goring
Namitasha Goring, Law and Criminology Lecturer Haringey Sixth Form College, LLM, PhD.

Beverley Beckford
Beverly Beckford, Barrister (Unregistered) (LLM).

Simone Bowman
Simone Bowman, Barrister (LLM Candidate DeMontford University).
Article

Political Sophistication and Populist Party Support

The Case of PTB-PVDA and VB in the 2019 Belgian Elections

Journal Politics of the Low Countries, Issue 3 2020
Keywords populist voters, political sophistication, voting motivations, Belgium, elections
Authors Marta Gallina, Pierre Baudewyns and Jonas Lefevere
AbstractAuthor's information

    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.


Marta Gallina
Marta Gallina is a PhD Student at the Université catholique de Louvain, Belgium. She obtained her BA and MA in Social Sciences at the University of Milan. Her research interests regard the study of political behaviour, political sophistication, issue dimensionality, populism and Voting Advice Applications. Her work appeared in scientific journals such as Statistics, Politics and Policy, Environmental Politics and Italian Political Science.

Pierre Baudewyns
Pierre Baudewyns is Professor of political behaviour at UCLouvain. He is involved in different projects (voters, candidates) related to National Election Study. Results of his research have been published in Electoral Studies, European Political Science, Regional & Federal Studies, West European Politics and Comparative European Politics.

Jonas Lefevere
Jonas Lefevere is research professor of political communication at the Institute for European Studies and assistant professor of communication at Vesalius College. Since 2018, he is also vice-chair of the ECPR Standing Group on Political Communication. His research interests deal with the communication strategies of political parties, and the effects of election campaigns on voters’ electoral behaviour. He has published on these topics in, amongst others, Electoral Studies, Public Opinion Quarterly, Political Communication and International Journal of Public Opinion Research.
Article

How Issue Salience Pushes Voters to the Left or to the Right

Journal Politics of the Low Countries, Issue 3 2020
Keywords voting behaviour, salience, ideological dimensions, elections, Belgium
Authors Stefaan Walgrave, Patrick van Erkel, Isaïa Jennart e.a.
AbstractAuthor's information

    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.


Stefaan Walgrave
Stefaan Walgrave (Corresponding author), Department of Political Science, University of Antwerp,

Patrick van Erkel
Patrick van Erkel, Department of Political Science, University of Antwerp.

Isaïa Jennart
Isaïa Jennart, Department of Political Science, University of Antwerp.

Jonas Lefevere
Jonas Lefevere, Institute of European Studies, Vrije Universiteit Brussel.

Pierre Baudewyns
Pierre Baudewyns, Institut de Science Politique Louvain-Europe (SSH/SPLE) Department, UCLouvain.
Article

Drivers of Support for the Populist Radical Left and Populist Radical Right in Belgium

An Analysis of the VB and the PVDA-PTB Vote at the 2019 Elections

Journal Politics of the Low Countries, Issue 3 2020
Keywords populism, voting, behaviour, Belgium, elections
Authors Ine Goovaerts, Anna Kern, Emilie van Haute e.a.
AbstractAuthor's information

    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.


Ine Goovaerts
Ine Goovaerts is a Doctoral Candidate of the Democratic Innovations and Legitimacy Research Group at the University of Leuven. Her research focuses on the quality of political discourse, with a specific focus on incivility and argumentation quality.

Anna Kern
Anna Kern is an Assistant Professor at the Department of Political Science of Ghent University. Her research focuses on political participation, political equality and political legitimacy. Her work has been published in journals such as West European Politics, Local Government Studies, Social Science Research and Political Behavior.

Emilie van Haute
Emilie van Haute is Chair of the Department of Political Science at the Université libre de Bruxelles (ULB) and researcher at the Centre d’étude de la vie politique (Cevipol). Her research interests focus on party membership, intra-party dynamics, elections and voting behaviour. Her research has appeared in West European Politics, Party Politics, Electoral Studies, Political Studies, European Political Science and Acta Politica. She is co-editor of Acta Politica.

Sofie Marien
Sofie Marien is Associate Professor at the University of Leuven, where she is director of the Democratic Innovations and Legitimacy Research Group. Her research has appeared in journals such as Political Behavior, European Journal of Political Research, European Sociological Review and Political Research Quarterly.
Research Note

Campaigning Online and Offline: Different Ballgames?

Presidentialization, Issue Attention and Negativity in Parties’ Facebook and Newspaper Ads in the 2019 Belgian General Elections

Journal Politics of the Low Countries, Issue 3 2020
Keywords political advertising, Belgium, social media, newspapers, campaign
Authors Jonas Lefevere, Peter Van Aelst and Jeroen Peeters
AbstractAuthor's information

    This Research Note investigates party advertising in newspapers and on social media (Facebook) during the 2019 general elections in Flanders, the largest region of Belgium. The 2019 elections saw a marked increase in the use of social media advertising by parties, whereas newspaper advertising saw a decline. Prior research that compares multiple types of advertising, particularly advertising on social and legacy media remains limited. As such, based on a quantitative content analysis we investigate not just the prevalence of party advertising on both types of media, but also compare the level of negativity, presidentialisation, and issue emphasis. Our analysis reveals substantial differences: we find that not only the type of advertisements varies across the platforms, but also that social media ads tend to be more negative. Finally, parties’ issue emphasis varies substantially as well, with different issues being emphasized in newspaper and Facebook advertisements.


Jonas Lefevere
Jonas Lefevere is research professor of political communication at the institute for European Studies (VUB) and assistant professor at Vesalius College, Brussels.

Peter Van Aelst
Peter Van Aelst is a research professor at the department of political science at the University of Antwerp.

Jeroen Peeters
Jeroen Peeters is a PhD student at the department of political science at the University of Antwerp.
Article

Emotions and Vote Choice

An Analysis of the 2019 Belgian Elections

Journal Politics of the Low Countries, Issue 3 2020
Keywords Belgium, elections, emotions, voting behaviour
Authors Caroline Close and Emilie van Haute
AbstractAuthor's information

    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.


Caroline Close
Caroline Close is Assistant Professor at the Université libre de Bruxelles (Charleroi campus). Her research and teaching interests include party politics, representation and political participation from a comparative perspective. She has published her work in Party Politics, Political Studies, Parliamentary Affairs, The Journal of Legislative Studies, Representation, Acta Politica and the Journal of European Integration. She regularly contributes to research and publications on Belgian politics.

Emilie van Haute
Emilie van Haute is Chair of the Department of Political Science at the Université libre de Bruxelles (ULB) and researcher at the Centre d’étude de la vie politique (Cevipol). Her research interests focus on party membership, intra-party dynamics, elections, and voting behaviour. Her research has appeared in West European Politics, Party Politics, Electoral Studies, Political Studies, European Political Science and Acta Politica. She is co-editor of Acta Politica.

Mark Walters
Mark Walters is Professor of Criminal Law and Criminology, University of Sussex, Brighton, UK. Contact author: Mark.Walters@sussex.ac.uk.
Conversations on restorative justice

A talk with Mary Koss

Journal The International Journal of Restorative Justice, Issue 3 2020
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

Access_open South African Mandatory Offers Regime: Assessing Minorities’ Leverage to Seek Recourse and Equal Treatment in Takeover Bids

Journal Erasmus Law Review, Issue 2 2020
Keywords company takeovers, mandatory offers, minority shareholders, equal treatment, acquisition procedure
Authors Paul Nkoane
AbstractAuthor's information

    A firm intention announcement must be made when the offeror is able and willing to acquire securities, and when a mandatory offer must be made. When the firm intention announcement is implemented, some sort of a contract is created. This rule has helped to determine the particular time the offeror should be liable to minorities. The question of when the offeror should bear the obligation to implement mandatory offers in aborted takeovers is thus no more problematic. Previously, the courts wrestled with this issue, but delivered what appears to be unsatisfactory decisions. This article will discuss the effect of a firm intention announcement and the responsibility that attends the making of that announcement. It intends to illustrate the extent of liability the offeror must bear in the event of a lapsed takeover, before and after the making of the firm intention announcement. The article examines the manner in which takeover rules can be enforced, and whether the current measures afford minorities proper protection. This brings to light the issue of equal treatment in takeovers and the fallacy thereof. A minor appraisal of the takeover rules in two jurisdictions in Europe (the United Kingdom and the Netherlands) is conducted to assess how equal treatment for minorities is promoted. Due to the difficulty minorities may experience in enforcing equal treatment in company takeovers, the article advocates for the alteration of the current South African takeover procedure for the promotion of minorities’ interests and for establishing rules that provide the offeror adequate information.


Paul Nkoane
Paul Nkoane is lecturer at the College of Law of the University of South Africa in Pretoria.
Article

The ILC Draft Articles on Crimes Against Humanity

An African Perspective

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords Africa, norm creation, crimes against humanity, colonial crimes, official immunity
Authors Alhagi B.M. Marong
AbstractAuthor's information

    Africa’s contribution towards the development of the International Law Commission (ILC) Draft Articles should not be assessed exclusively on the basis of the limited engagement of African States or individuals in the discursive processes within the ILC, but from a historical perspective. When analysed from that perspective, it becomes clear that Africa has had a long connection to atrocity crimes due to the mass victimization of its civilian populations during the colonial and postcolonial periods and apartheid in South Africa. Following independence in the 1960s, African States played a leading role in the elaboration of legal regimes to deal with international crimes such as apartheid, or in the development of accountability mechanisms to respond to such crimes. Although some of these efforts proved unsuccessful in the end, the normative consensus that was generated went a long way in laying the foundations for the Rome Statute of the International Criminal Court, which, in turn, influenced the conceptual framework of the ILC Draft Articles. This article proposes that given this historical nexus, the substantive provisions and international cooperation framework provided for in the future crimes against humanity convention, Africa has more reasons to support than to oppose it when negotiations begin at the United Nations General Assembly or an international diplomatic conference.


Alhagi B.M. Marong
Senior Legal Officer, United Nations Assistance Mission in Afghanistan (UNAMA).
Article

Gender and the ILC’s 2019 Draft Articles on the Prevention and Punishment of Crimes Against Humanity

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords gender, crimes against humanity, international criminal law, Rome Statute
Authors Indira Rosenthal and Valerie Oosterveld
AbstractAuthor's information

    The International Law Commission’s Draft Articles on the Prevention and Punishment of Crimes Against Humanity document is the latest international instrument to address gender-based crimes under international law and the first to do so outside the context of international courts. The elaboration of a treaty on crimes against humanity provides a critical opportunity to affirm that gender-based crimes are among the gravest crimes under international law. This article examines discussions on the meaning of the term ‘gender’ under the ILC’s Draft Articles, with reference to the discussions two decades prior on the definition of ‘gender’ in the Rome Statute of the International Criminal Court, the basis for the Articles’ consideration of sexual and gender-based violence. It then turns to the ILC consultation process, and the 2019 discussion of the ILC’s Draft Articles in the Sixth (Legal) Committee of the United Nations General Assembly on the term ‘gender’. Additionally, it considers a number of concerns raised by States and civil society on the definition of some of the gender-based crimes included in the Draft Articles and concludes by arguing for a comprehensive gender analysis of all of the Draft Articles.


Indira Rosenthal
Indira Rosenthal, Independent Consultant, Gender, Law and Justice; PhD Candidate, Faculty of Law, University of Tasmania (Australia).

Valerie Oosterveld
Valerie Oosterveld, University of Western Ontario Faculty of Law (Canada).
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