Search result: 290 articles

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    This article engages in a comparison of the regulation of PR in the Netherlands and the UK (specifically England and Wales). The latter is a good comparator as it operates a similar regulatory approach to the Netherlands, that of conditional acceptance of PR, the condition being (prior) consent. Furthermore, the UK boasts a more detailed and mature legal framework that continues to be tested through caselaw, and thus offers insight into how a regulatory approach conditional upon the (prior) consent of the deceased can fare.
    The article starts with a brief exposition of the new Dutch guidelines and the current legislative position in the Netherlands vis-à-vis posthumous reproduction (part II). Likewise, the relevant UK guidelines and legislative position are summarized (part III). This article draws out the similarities and differences between the two regimes, as well as engaging in a critical analysis of the regulations themselves. It then looks at how the UK regime has been challenged in recent years through caselaw in anticipation of the issues that might confront the Netherlands in future (part IV). The article concludes (part V) that the key lesson to be drawn from the UK experience is that clarity and consistency is crucial in navigating this ethically, emotionally, and time sensitive area. Further, that both the UK and the Netherlands can expect demand for more detailed and precise regulatory guidance as requests for the procedure increase, and within evermore novel circumstances.

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    Dit artikel vergelijkt de regulering van postume reproductie (PR) in Nederland en het Verenigd Koninkrijk (in het bijzonder Engeland en Wales). Laatstgenoemde is daarvoor zeer geschikt, aangezien het VK een vergelijkbare reguleringsbenadering heeft als Nederland, namelijk de voorwaardelijke acceptatie van PR, waarbij (voorafgaande) toestemming de voorwaarde is. Bovendien beschikt het VK over een gedetailleerder en volwassener juridisch kader dat continu wordt getoetst door middel van rechtspraak. Dit kader biedt daarmee inzicht in hoe een regulerende benadering met als voorwaarde (voorafgaande) toestemming van de overledene kan verlopen.
    Het artikel vangt aan met een korte uiteenzetting van de nieuwe Nederlandse richtlijnen en de huidige positie van de Nederlandse wetgever ten opzichte van postume reproductie (deel II). De relevante Britse richtlijnen en het wetgevende standpunt worden eveneens samengevat (deel III). Vervolgens worden de overeenkomsten en verschillen tussen de twee regimes naar voren gebracht, met daarbij een kritische analyse van de regelgeving. Hierop volgt een beschrijving van hoe het VK de afgelopen jaren is uitgedaagd in de rechtspraak, daarmee anticiperend op vraagstukken waarmee Nederland in de toekomst te maken kan krijgen (deel IV). Tot slot volgt een conclusie (deel V) waarin wordt aangetoond dat de belangrijkste les die uit de Britse ervaring kan worden getrokken, is dat duidelijkheid en consistentie cruciaal zijn bij het navigeren door dit ethische, emotionele en tijdgevoelige gebied. En daarnaast, at zowel het VK als Nederland een vraag naar meer gedetailleerde en precieze regelgeving kunnen verwachten naarmate verzoeken om deze procedure toenemen, met daarbij steeds weer nieuwe omstandigheden.


Dr. N. Hyder-Rahman
Nishat Hyder-Rahman is a Post-doctoral Researcher at the Utrecht Centre for European Research into Family Law, Molengraaff Institute for Private Law, Utrecht University.
Article

New Sales and Contract Law in Argentina and France:

Models for Reform Inspired by the CISG and the PICC?

Journal European Journal of Law Reform, Issue 2 2020
Keywords contracts, sales, law reform, CISG, UNIDROIT Principles, Argentina, France, comparative law
Authors Edgardo Muñoz and Inés Morfín Kroepfly
AbstractAuthor's information

    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 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.


Edgardo Muñoz
Professor of Law, Universidad Panamericana. School of Law. Calzada Álvaro del Portillo 49, Zapopan, Jalisco, 45010, Mexico. Ph.D. (Basel), LL.M. (UC Berkeley), LL.M. (Liverpool), LL.B. (UIA Mexico), DEUF (Lyon), emunoz@up.edu.mx.

Inés Morfín Kroepfly
J.D., Universidad Panamericana, Guadalajara.
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

What Does It Take to Bring Justice Online?

Journal International Journal of Online Dispute Resolution, Issue 2 2019
Keywords ODR, access to justice, courts, online justice, remedy for small disputes
Authors Mirèze Philippe
AbstractAuthor's information

    Technology has revolutionized the world in the last century, although computation devices have existed for millennia and punched-card data processing for two centuries. After 70 years of progress in technology and telecommunications with all the knowledgeable computer specialists and the sophistication of online services, it is high time public and private justice offered fair access to a fundamental human right: justice online. The role of technology in dispute resolution is high on the agenda, and the topic is increasingly at the centre of discussions. In a world that is rapidly developing, it is surprising to observe that online dispute resolution (ODR) is lagging behind.


Mirèze Philippe
Special Counsel at the Secretariat of ICC International Court of Arbitration. She is co-founder of ArbitralWomen and Board member. She is also member of the Equal Representation in Arbitration Steering Committee, ICCA Diversity Task Force, Arbitrator Intelligence’s Board of Advisors, Council of the American Bar Association Section of Dispute Resolution, Paris Place d’Arbitrage, Association Arbitri’s Advisory Board, International Journal of Online Dispute Resolution’s Editorial Board, fellow of National Centre for Technology and Dispute Resolution (NCTDR), and Board member of International Council for Online Dispute Resolution’s (ICODR).
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

Supporting Self-Represented Litigants and Access to Justice

How Does ODR Fit In?

Journal International Journal of Online Dispute Resolution, Issue 2 2019
Keywords ODR, self-represented litigants, access to justice, legal services
Authors John M. Greacen
AbstractAuthor's information

    In 2015 the Conference of Chief Justices and the Conference of State Court Administrators (CCJ/COSCA), representing the leadership of the state court systems of the United States, adopted the following goal for access to justice for civil legal issues.

    […] the Conference of Chief Justices and the Conference of State Court Administrators support the aspirational goal of 100 percent access to effective assistance for essential civil legal needs.

    How far are we from attaining that goal today?


John M. Greacen
Principal, Greacen Associates. The author acknowledges the contribution from two esteemed colleagues, Katherine Alteneder, Executive Director of the Self Represented Litigation Network and Bonnie Hough, Principal Managing Attorney, Center for Families, Children & the Courts, Judicial Council of California.
Article

Readiness for Family and Online Dispute Resolution

Journal International Journal of Online Dispute Resolution, Issue 2 2019
Keywords online dispute resolution, family dispute resolution, domestic violence, ripeness and readiness, divorce
Authors Nussen Ainsworth, Lisa Zeleznikow and John Zeleznikow
AbstractAuthor's information

    The International Conflict Resolution Community has developed considerable theory and many case studies about ripeness and readiness for mediation. Readiness involves a readiness of the disputant to resolve the conflict, while ripeness indicates the time is appropriate to attempt a resolution. There is a sparse amount of theory about these issues in commercial and family dispute resolution (FDR). We discuss the practice of readiness for mediation, FDR and online dispute resolution and develop practices about when to mediate such disputes – especially when domestic violence has occurred.


Nussen Ainsworth
Nussen Ainsworth, Victoria University, Melbourne, Australia – nussen.ainsworth@vu.edu.au.

Lisa Zeleznikow
Lisa Zeleznikow, Jewish Mediation Centre, Melbourne, Australia – lisa@jmc.org.au.

John Zeleznikow
John Zeleznikow, Victoria University, Melbourne, Australia – john.zeleznikow@vu.edu.au.
Case Reports

2019/51 Stand-by time from home is paid working time (RO)

Journal European Employment Law Cases, Issue 4 2019
Keywords Working time
Authors Andreea Suciu and Gabriela Ion
AbstractAuthor's information

    Stand-by time from home represents working time of medical personnel even for the periods when no medical activity was actually performed (no attendance at the hospital was required), the salary rights for such period being determined as a percentage of the hourly rate for the basic salary and the number of hours when stand-by time from home was performed.


Andreea Suciu
Andreea Suciu is the Managing Partner of Suciu I The Employment Law Firm (https://suciu-employmentlaw.ro/).

Gabriela Ion
Gabriela Ion is an associate with Suciu I The Employment Law Firm (https://suciu-employmentlaw.ro/).

    The Supreme Court found that the Court of Appeal did not properly examine whether the difference of treatment of employees based on a social plan may be justified.


Ioana Cazacu
Ioana Cazacu is Managing Associate with POPOVICI NIŢU STOICA & ASOCIAŢII, Bucharest, Romania.
Article

Magyar Jeti Zrt. v. Hungary

Judgment of the ECtHR Concerning the Imposition of Liability for Posting Hyperlinks to Defamatory Content

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords freedom of expression, defamatory content, liability of online press, Article 10 ECHR, hyperlinks
Authors Renáta Gyalog
AbstractAuthor's information

    The article aims to introduce the judgment of the ECtHR on the case Magyar Jeti Zrt. v. Hungary. Although in this Hungarian case the ECtHR dealt with a special provision of the Hungarian Civil Code that – under the interpretation of the domestic courts – imposes objective liability for posting hyperlinks which lead to third-party online content, the judgment can be considered as a big improvement compared to the previous decisions of the ECtHR concerning the freedom of expression. The judgment offers legal certainty and guidance for journalists who post hyperlinks by determining five relevant questions to be taken into account when deciding whether the liability of a press organ can be established for contents cited from other websites over which they have no control. Becoming the best ECtHR judgment of the year 2018 under the yearly vote announced by Strasbourg Observers blog portal also emphasizes the importance and the relevance of this decision for the digital media.


Renáta Gyalog
Assistant judge, Békéscsaba District Court, Hungary.
Article

From Kásler to Dunai

A Brief Overview of Recent Decisions of the CJEU in Hungarian Cases Concerning Unfair Terms in Consumer Contracts

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords preliminary ruling, consumer protection, unfair terms, Directive 93/13/EEC, consumer loan contract
Authors Miklós Zoltán Fehér
AbstractAuthor's information

    The CJEU was recently called upon to interpret Council Directive 93/13/EEC on unfair terms in consumer contracts in relation to consumer loan contracts denominated in a foreign currency and in relation to the legislation adopted by the Hungarian Parliament in 2014 concerning such contracts in several Hungarian preliminary ruling procedures. The decisions of the CJEU, starting with the judgment rendered in case C-26/13, Kásler and Káslerné Rábai, have not only contributed to the ever-evolving case-law relating to Directive 93/13/EEC but also provided national jurisdictions with useful guidance on the interpretation and application of the Directive in the specific area of consumer loan contracts concluded in a foreign currency, an area of prolific litigation before Hungarian courts in recent years. The CJEU also evaluated the Hungarian legislation adopted in 2014 to deal with certain issues relating to such contracts and seemed to approve of its conformity with Directive 93/13/EEC in a series of decisions up until the judgment made in case C-117/18, Dunai. In that judgment, however, the findings of the CJEU may have been based on a misinterpretation of the content of national legislation, leading to a perhaps erroneous conclusion and most certainly prompting a re-emergence of controversies before national courts.


Miklós Zoltán Fehér
Head of Department at the Hungarian Ministry of Justice, Agent of the Hungarian Government before the CJEU.
Article

Fair Trial under Scrutiny

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords Constitutional Court of Hungary, right to a fair trial, Article 6 ECHR, Article XXVIII of the Fundamental Law of Hungary, Hungarian Code of Criminal Procedure
Authors Ágnes Czine
AbstractAuthor's information

    The right to a fair trial has an eminent position in the Fundamental Law of Hungary both because of the importance of the right and the great number of applications and jurisprudence it has been the subject of. This study presents the legal background of fair trial and its place in the Hungarian legal system, analyzing the jurisprudence of the Hungarian Constitutional Court on the right to fair trial, and in particular, the obligation to adjudicate within a reasonable time. While the Constitutional Court has developed a consistent practice in this regard, there are nevertheless new issues that may make the amendment of certain pieces of legislation necessary. This paper presents a case-study on a new development in the Constitutional Court’s practice on the issue of deciding the case within a reasonable time.


Ágnes Czine
Justice, Constitutional Court of Hungary.
Article

From International Law in Books to International Law in Action

ELTE Law School’s Jessup and Telders Victories in 2019

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Authors Gábor Katjár and Katalin Sulyok
Author's information

Gábor Katjár
Associate professor, ELTE Law School, Budapest, and coach of ELTE Jessup Team since 2010 as well as coach of ELTE Telders Team since 2016.

Katalin Sulyok
Senior lecturer, ELTE Law School, Budapest, and co-coach of ELTE Jessup Team in 2015, 2017 and 2019; co-coach of ELTE Telders Team in 2019.
Article

Languages and Linguistic Issues before the International Criminal Court

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords linguistic issues, ICC, language of criminal procedure, local languages, use of own language
Authors Péter Kovács
AbstractAuthor's information

    The present article deals with some of the language issues present before the International Criminal Court (ICC). These issues do not simply result from the challenges of translation to/from English and French but also from the fact that the English and French used before the ICC are specialist legal languages with centuries-old practice behind their well-established notions (e.g. ‘no case to answer’). There are numerous other languages used by witnesses and victims with various backgrounds in the different cases and situations. They are mostly local, sometimes tribal languages often lacking the vocabulary necessary to describe complex legal issues, to deal with notions and phenomena of modern substantive or procedural law. It is equally important to note that there are always special local notions, which are impossible to translate with a single term, sometimes becoming a part of the English or French language of the procedure. Other languages, however, may bring with them their own special legal or historical-legal vocabulary, which must be reflected on in order to unpack its proper meaning. As such, language issues are omnipresent before the ICC, having also an impact on the budget of the Court. The efficient and accurate work of interpreters and translators is of outmost importance from the point of view of fair trial, rights of the accused but also from the perspective of access to information for victims, witnesses or local communities who are following the judicial procedure from home.


Péter Kovács
Professor of law, Pázmány Péter Catholic University, Budapest; judge at the International Criminal Court (2015-2024).
Article

Sustainable Developments in Foreign Investment Law and Policy

Related to Renewable Energy and Climate Change Mitigation and Adaptation

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords sustainable development, climate change mitigation, Paris Agreement, renewable energy law, ICSID
Authors Marie-Claire Cordonier Segger
AbstractAuthor's information

    Sustainable development is gradually integrated into policies worldwide, meanwhile, government authorities and policymakers, alongside public and private enterprises, are signaling the growing scope and scale of investment opportunities in this field. Capital cuts and decreasing generating costs are fueling the market in renewable technologies. At the same time, bilateral and multilateral treaties are being negotiated, which set the framework for expanding sustainable solutions: treaty regimes increasingly encourage and promote trade and investment for more sustainable energy development, responding to global concerns on climate change. Investment protection litigation offers new insights into trends in jurisprudence, demonstrating how this field of law can be instrumental not only for protecting undertakings’ interests, but holding countries to their commitments under international treaties for the protection of the environment.


Marie-Claire Cordonier Segger
Senior director, Centre for International Sustainable Development Law (CISDL); professor of law, University of Waterloo, Canada.
Article

Control in International Law

Journal African Journal of International Criminal Justice, Issue 1 2019
Keywords Effective / overall control, international human rights law, international criminal law, responsibility of states, statehood
Authors Joseph Rikhof and Silviana Cocan
AbstractAuthor's information

    The concept of control has permeated various disciplines of public international law, most notable international criminal law, international humanitarian law, international human rights law and the law of statehood as well as the law of responsibility for states and international organizations. Often this notion of control has been used to extend the regular parameters in these disciplines to capture more extraordinary situations and apply the same rules originally developed within areas of law, such as the application of the laws of war to occupation, the rules of human rights treaties to extraterritorial situations or state responsibility to non-state actors. This article will examine this notion of control in all its facets in international law while also addressing some of its controversies and disagreements in the jurisprudence of international institutions, which have utilized this concept. The article will then provide an overview of its uses in international law as well as its overlap from one discipline to another with a view of providing some overarching observations and conclusions.


Joseph Rikhof
Joseph Rikhof is an adjunct professor at the Common Law Faculty of the University of Ottawa.

Silviana Cocan
Silviana Cocan holds a double doctoral degree in international law from the Faculty of Law of Laval University and from the Faculty of Law and Political Science of the University of Bordeaux.
Article

Delimiting Deportation, Unlawful Transfer, Forcible Transfer and Forcible Displacement in International Criminal Law

A Jurisprudential History

Journal African Journal of International Criminal Justice, Issue 1 2019
Keywords International criminal law, theory of international law, crimes against humanity, deportation, unlawful or forcible transfer
Authors Ken Roberts and James G. Stewart
AbstractAuthor's information

    The forced displacement of civilian populations is an issue of significant global concern and a subject of extensive legal debate. In international criminal law, forced displacement is criminalized by a complex network of distinct but overlapping offences. These include the Crimes Against Humanity of deportation, forcible transfer, persecution and other inhumane acts, and the grave breach of the Geneva Conventions of ‘unlawful deportation or transfer’. International courts and tribunals have been inconsistent in the adoption of these crimes in their statues and in their subsequent interpretation, making it all the more difficult to distinguish between them. The jurisprudential history of these crimes is lengthy and not without controversy, highlighted by inconsistent judicial approaches. In this article, we offer a critical jurisprudential history of these displacement crimes in international criminal law.
    In particular, we focus on the case law emanating from the International Criminal Tribunal for the former Yugoslavia, a court that comprehensively addressed crimes associated with ethnic cleansing, a characteristic feature of that conflict, with the result that displacement was a central focus of that court. We set out our jurisprudential history in chronological order, beginning with the earliest inceptions of displacement crimes at the ICTY and then tracing their development toward the establishment of a consensus. Our hope is that the article sheds light on the development of these offences, informs future debate, and acts as a useful template for those seeking to understand how these crimes may have a role to play in future international jurisprudence.


Ken Roberts
Ken Roberts is Senior Legal Officer, International, Impartial and Independent Mechanism (Syria).

James G. Stewart
James G. Stewart is Associate Professor, Allard School of Law, University of British Columbia.
Human Rights Literature Reviews

Hungary

Journal East European Yearbook on Human Rights, Issue 1 2019
Authors Alexandra Sipos PhD
Author's information

Alexandra Sipos PhD
PhD student, Doctoral School of Sociology, Faculty of Social Sciences at Eötvös Loránd University, Budapest, Hungary.
Article

Access_open Commercial Litigation in Europe in Transformation: The Case of the Netherlands Commercial Court

Journal Erasmus Law Review, Issue 1 2019
Keywords international business courts, Netherlands Commercial Court, choice of court, recognition and enforcements of judgements
Authors Eddy Bauw
AbstractAuthor's information

    The judicial landscape in Europe for commercial litigation is changing rapidly. Many EU countries are establishing international business courts or have done so recently. Unmistakably, the approaching Brexit has had an effect on this development. In the last decades England and Wales – more precise, the Commercial Court in London - has built up a leading position as the most popular jurisdiction for resolving commercial disputes. The central question for the coming years will be what effect the new commercial courts in practice will have on the current dominance of English law and the leading position of the London court. In this article I address this question by focusing on the development of a new commercial court in the Netherlands: the Netherlands Commercial Court (NCC).


Eddy Bauw
Professor of Private Law and Administration of Justice at Molengraaff Institute for Private Law and Montaigne Centre for Rule of Law and Administration of Justice, Utrecht University. Substitute judge at the Court of Appeal of Arnhem-Leeuwarden and the Court of Appeal of The Hague.
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