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Article

Access_open The Brussels International Business Court: Initial Overview and Analysis

Journal Erasmus Law Review, Issue 1 2019
Keywords international jurisdiction, English, court language, Belgium, business court
Authors Erik Peetermans and Philippe Lambrecht
AbstractAuthor's information

    In establishing the Brussels International Business Court (BIBC), Belgium is following an international trend to attract international business disputes to English-speaking state courts. The BIBC will be an autonomous business court with the competence to settle, in English, disputes between companies throughout Belgium. This article focuses on the BIBC’s constitutionality, composition, competence, proceedings and funding, providing a brief analysis and critical assessment of each of these points. At the time of writing, the Belgian Federal Parliament has not yet definitively passed the Bill establishing the BIBC, meaning that amendments are still possible.


Erik Peetermans
Erik Peetermans is a legal adviser at the Federation of Enterprises in Belgium (FEB).

Philippe Lambrecht
Philippe Lambrecht is the Director-Secretary General at the Federation of Enterprises in Belgium (FEB).

Christopher D. Marshall
Christopher Marshall is The Diana Unwin Chair in Restorative Justice, School of Government, Victoria University of Wellington, New Zealand.

    A decision taken by an employer based on gender which respects the national legislation was considered discriminatory based on EU legislation.


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

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

ECJ 8 May 2019, case C-24/17, (Österreichischer Gewerkschaftsbund), Age Discrimination

Österreichischer Gewerkschaftsbund, Gewerkschaft Öffentlicher Dienst – v – Republik Österreich, Austrian case

Journal European Employment Law Cases, Issue 2 2019
Keywords Age Discrimination
Abstract

    A new system of remuneration and advancement according to which the initial grading of the contractual public servants is calculated according to their last remuneration paid under the previous system of remuneration and advancement, which was based on discrimination on grounds of the age of the contractual public servants, is inconsistent with Articles 1, 2 and 6 of Directive 2000/78, read in combination with Article 21 of the Charter and inconsistent with Article 45(2) TFEU.

Rulings

ECJ 8 May 2019, case C-396/17, (Leitner), Age Discrimination

Martin Leitner – v – Landespolizeidirektion Tirol, Austrian case

Journal European Employment Law Cases, Issue 2 2019
Keywords Age Discrimination
Abstract

    A new system of remuneration and advancement according to which the initial grading of the contractual public servants is calculated according to their last remuneration paid under the previous system of remuneration and advancement, that was based on discrimination on grounds of the age of the contractual public servants, is inconsistent with Articles 1, 2 and 6 of Directive 2000/78, read in combination with Article 21 of the Charter.
    National legislation which obstructs the effective judicial protection by reducing the scope of the review which national courts are entitled to conduct, by excluding questions concerning the basis of the transition amount, calculated according to the rules of the previous discriminatory remuneration and advancement system, is inconsistent with Article 47 of the Charter and Article 9 of Directive 2000/78.

Article

Mobile Online Dispute Resolution Tools’ Potential Applications for Government Offices

Journal International Journal of Online Dispute Resolution, Issue 1 2019
Keywords mobile online dispute resolution, MODR, ODR, computer mediated communication, dispute prevention, workplace conflict
Authors Stephanie Gustin and Norman Dolan
AbstractAuthor's information

    Online communication practices have become intrinsic to government work environments. Understanding the impact of these practices, whether they be general computer mediated communication (CMC) or specifically online dispute resolution (ODR) processes, is an essential step in supporting respectful and healthy work environments. ODR literature focuses almost exclusively on e-commerce, leaving large gaps in the body of knowledge as ODR applications diversify. Available ODR tools, which simply transpose traditional alternative dispute resolution (ADR) processes online through the use of office videoconferencing systems, are not mobile and do not utilize the full capabilities of the existing technology. This article explores the potential impacts mobile ODR (MODR) tools could have on the dispute interventions and prevention initiatives in government office settings. The study used an exploratory model to establish an understanding of the experiences and needs of Canadian and Australian government employees. Findings demonstrate an interest in the introduction of education-oriented MODR tools as supplementary support with the purposes of knowledge retention and further skill development following dispute prevention training. Findings suggest that workplace attitudes towards online communication and ODR have a significant impact on the extent to which individuals successfully develop and maintain relationships either fully or partially through the use of CMC.


Stephanie Gustin
Stephanie Gustin holds an MA in Dispute Resolution from the University of Victoria, Canada.

Norman Dolan
Norman Dolan holds a PhD in Public Administration and is an Adjunct Assistant Professor in the School of Public Administration at the University of Victoria, Canada.
Article

Fiscal Consolidation in Federal Belgium

Collective Action Problem and Solutions

Journal Politics of the Low Countries, Issue 2 2019
Keywords fiscal consolidation, fiscal policy, federalism, intergovernmental relations, High Council of Finance
Authors Johanna Schnabel
AbstractAuthor's information

    Fiscal consolidation confronts federal states with a collective action problem, especially in federations with a tightly coupled fiscal regime such as Belgium. However, the Belgian federation has successfully solved this collective action problem even though it lacks the political institutions that the literature on dynamic federalism has identified as the main mechanisms through which federal states achieve cooperation across levels of government. This article argues that the regionalization of the party system, on the one hand, and the rationalization of the deficit problem by the High Council of Finance, on the other, are crucial to understand how Belgium was able to solve the collective action problem despite its tightly coupled fiscal regime and particularly high levels of deficits and debts. The article thus emphasizes the importance of compromise and consensus in reducing deficits and debts in federal states.


Johanna Schnabel
School of Politics and International Relations, University of Kent, Rutherford College, Canterbury CT2 7NX, United Kingdom.
Article

Transformative Welfare Reform in Consensus Democracies

Journal Politics of the Low Countries, Issue 1 2019
Keywords consensus democracy, welfare state, social investment, transformative reform, Belgium and the Netherlands
Authors Anton Hemerijck and Kees van Kersbergen
AbstractAuthor's information

    This article takes up Lijphart’s claim that consensus democracy is a ‘kinder, gentler’ form of democracy than majoritarian democracy. We zoom in on contemporary welfare state change, particularly the shift towards social investment, and argue that the kinder, gentler hypothesis remains relevant. Consensus democracies stand out in regard to the extent to which their political institutions help to overcome the politically delicate intricacies of governing for the long term. We theorize the features that can help to solve the problem of temporal commitment in democracy through processual mechanisms and illustrate these with short case studies of the contrasting welfare state reform experiences in the Netherlands and Belgium.


Anton Hemerijck
Anton Hemerijck is Professor of Political Science and Sociology at the European University Institute (EUI) in Florence, Italy.

Kees van Kersbergen
Kees van Kersbergen is Professor of Comparative Politics at the Department of Political Science of Aarhus University, Denmark.
Article

Post-Legislative Scrutiny of the Law against Gender-Based Violence

The Successful Story of the Cabo Verde Parliament

Journal European Journal of Law Reform, Issue 2 2019
Keywords oversight, post-legislative scrutiny, Cabo Verde, parliament
Authors Elisabete Azevedo-Harman and Ricardo Godinho Gomes
AbstractAuthor's information

    In 2011 Cabo Verde’s parliament approved the Law Against Gender-Based Violence (GBV). In 2014, 3 years later, the Women’s Caucus (WC) of this parliament agreed to trace the implementation of the law and its impact. This decision was taken without a clear perception of how to conduct post-legislative scrutiny (PLS) and without suspecting the eventual troubling findings. Post-legislative scrutiny has not previously been done in Cabo Verde, partly because of the inexperience of this democratic parliament, partly because PLS is a rather recent and still underdeveloped legislative activity anchored in oversight and legislation functions. In 2014 and 2015, Women’s Caucus conducted PLS of the GBV Law finding that the government had not enacted the necessary implementation rules to enforce this law, which hampered budget allocations and funding. According to the country’s legislative process this should have taken place within 10 months of the law’s approval. This study describes and discusses how the post-legislative scrutiny of the GBV Law was conducted and the lessons learned through this pioneering process in Cabo Verde’s parliament.


Elisabete Azevedo-Harman
Elisabete Azevedo-Harman is Professor on legislative and political institutions in Angolan and Mozambican universities, political advisor, international expert on parliamentary and institutional development. Currently is a senior consultant of the National Assembly of Angola.

Ricardo Godinho Gomes
Ricardo Godinho Gomes is a political scientist in the field of democratic governance since 2006 for UNDP, more specifically in electoral assistance, parliamentary strengthening and public finance management. He is a UNDP programme manager and he was the head of the management units of the project in support of electoral cycles in PALOP and Timor-Leste (2010-2013) and the Pro PALOP-TL SAI (2014-2017).
Article

Access_open The Conduit between Technological Change and Regulation

Journal Erasmus Law Review, Issue 3 2018
Keywords technology, socio-technological change, money, windmill, data
Authors Marta Katarzyna Kołacz and Alberto Quintavalla
AbstractAuthor's information

    This article discusses how the law has approached disparate socio-technological innovations over the centuries. Precisely, the primary concern of this paper is to investigate the timing of regulatory intervention. To do so, the article makes a selection of particular innovations connected with money, windmills and data storage devices, and analyses them from a historical perspective. The individual insights from the selected innovations should yield a more systematic view on regulation and technological innovations. The result is that technological changes may be less momentous, from a regulatory standpoint, than social changes.


Marta Katarzyna Kołacz
Marta Katarzyna Kołacz, Ph.D. Candidate in the Department of Private Law, Erasmus School of Law, Erasmus University Rotterdam, The Netherlands.

Alberto Quintavalla
Alberto Quintavalla, LL.M., Ph.D. Candidate in the Rotterdam Institute of Law and Economics, Erasmus School of Law, Erasmus University Rotterdam, The Netherlands.

Albert Dzur
Albert Dzur is Professor, Departments of Political Science and Philosophy, Bowling Green State University, USA. Contact author: awdzur@bgsu.edu.
Article

Access_open Sustainable Enjoyment of Economic and Social Rights in Times of Crisis

Obstacles to Overcome and Bridges to Cross

Journal European Journal of Law Reform, Issue 4 2018
Keywords social and economic rights, austerity measures, Euro crisis, defaulting countries
Authors Dr. Natalie Alkiviadou
AbstractAuthor's information

    In 2008, the European Union was hit by the most severe financial downturn since the Great Recession of the 1930s. One of the major consequences of this phenomenon was the deterioration in the enjoyment of human rights, in particular economic and social rights. While it is indisputable that the crisis itself was directly correlated to the erosion of such rights, the conditions attached to the loan agreements between defaulting countries and the three lending institutions, namely the International Monetary Fund (IMF), the European Central Bank and the European Commission, have negatively affected the rights under consideration. Loans came with strict austerity measures, such as public expenditure cuts in the realm of, inter alia, public services, benefits and social security. This article considers the deterioration in the enjoyment of economic and social rights by Union inhabitants and particularly the anti-crisis strategy adopted by the European Union, which, as will be demonstrated, directly contributed to this deterioration. The stance of the three institutions was facilitated by the less than proactive, but improving, positioning of the Court of Justice of the European Union in case law, which will be assessed. It must be noted that it is not the three institutions acting alone in this process; the Member States are the ones who agree to the loans and their conditions and implement austerity measures on the ground. However, as will be reflected, the practical role and actual input of the countries themselves in this procedure is limited. The central theoretical tenet of the article is that the European Union is re-shifting its direction to the almost absolute adoption of an economic constitution, with little regard to its social counterpart. Within the aforementioned framework, this article seeks to assess the status of economic and social rights in a crisis-hit Union, provide a theoretical explanation for this occurrence and put forth possibilities for positive change, placing the protection and promotion of economic and social rights at the heart of any responses to crisis as a method to ensure their sustainable protection effectively.


Dr. Natalie Alkiviadou
Dr Natalie Alkiviadou is a Lecturer at the University of Central Lancashire Cyprus.
Article

The adventure of the institutionalisation of restorative justice in Belgium

Journal The International Journal of Restorative Justice, Issue 2 2018
Keywords Restorative justice, institutionalisation, penal change, Belgium
Authors Anne Lemonne
AbstractAuthor's information

    At first glance, the adventure of restorative justice (RJ) in Belgium can be considered a real success story. At the turn of the 21st century, programmes oriented towards this justice model officially determined the criminal justice agenda. What were the key ideas that led to the conceptualisation of restorative justice in Belgium? Who were the main actors and agencies that carried them out? What were the main issues that led to the institutionalisation of restorative justice? What are the effects of its implementation on the Belgian criminal justice system in general? This article strives to present the main findings of a study on the basis of an extensive data collection effort and analysis targeting discourses and practices created by actors from the Belgian academic, scientific, political, administrative, social work and judicial spheres from the 1980s to 2015.


Anne Lemonne
Anne Lemonne is a researcher at the Department of Criminology, National Institute for Criminalistics and Criminology (NICC) and a member of the Centre de recherches criminologiques at the Université Libre de Bruxelles (ULB), Brussels, Belgium. Contact author: Anne.Lemonne@just.fgov.be.

Monique Anderson PhD
Monique Anderson, PhD Researcher, Leuven Institute of Criminology, Catholic University of Leuven, Leuven, Belgium. Contact author: monique.anderson@kuleuven.be.
Article

The Proposed Public Procurement for Projects to Enhance Industrial Capabilities through Japanese Lessons Learned

Journal International Institute of Space Law, Issue 9 2018
Keywords H-IIA, H3, Ariane 6, COTS, public private partnership, procurement
Authors Mizuki Tani-Hatakenaka
AbstractAuthor's information

    This paper discusses a framework for governmental projects to enhance industrial capabilities through the lessons learned from the Japanese contractual practice of H3 launch vehicle, comparing with the NASA’s Commercial Orbit Transportation Service (COTS). In 1995, the research and development (R&D) of the H-IIA was started by a former body of JAXA, and each manufacturer was responsible for delivery as required. After twelve-times launches, the operation was privatized to Mitsubishi Heavy Industry, Ltd. (MHI). Concerning H3, MHI was selected as a R&D contractor and a launch provider. MHI established the H3 rocket system specification and responsible for delivering the first vehicle to JAXA in 2020, and JAXA is responsible for the total system including its launch base and the H3 flight demonstration. Such a framework gives MHI more creative freedom, but there can be a room for further clarification of the responsibilities. Coincidentally, such a framework between public and private entities is similar to that of the European new flagship launch vehicle, Ariane 6.
    Meanwhile in NASA’s COTS, partners are responsible for all of the development and operation but they are not required to deliver their vehicles to NASA, contrary to H3. It allows clear role allocation and companies’ maximum creativity. A series of contracts of the Commercial Resupply Services (CRS) after COTS is also remarkable to promote private investment, for example, around half of the total R&D cost is borne by private sectors. Also, cost accounting method does not seem to be applied for the price setting.
    The framework like H-2A is still necessary for high-risk R&D conducted by governmental agencies. It will be, however, necessary for projects, which aims at enhancing industrial capabilities through transferring the operations to the private sectors and encouraging innovation, to be taken different measures in relation to selection of prime contractor, delivery and payment in the development phase and to procurement of launch services in the operating phase.


Mizuki Tani-Hatakenaka
Adv. LL.M Student of Air and Space Law, Law School, Leiden University, Steenschuur 25, Leiden, 2311 ES, the Netherlands, tani.mizuki@jaxa.jp.
Article

The Harmonization Potential of the Charter of Fundamental Rights of the European Union

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords application of EU law, Article 51 of the Charter, Charter of Fundamental Rights of the EU, Court of Justice, jurisdiction of the Court of Justice, market freedoms, spontaneous harmonization
Authors Filippo Fontanelli and Amedeo Arena
AbstractAuthor's information

    This article discusses two underrated and connected aspects that determine the applicability of the EU Charter on Fundamental Rights to Member State measures. First, the Charter can be a decisive standard of review for domestic measures only when they are covered by EU law but are not precluded by it. In this respect, the distinction between non-preclusion and non-application of EU law has been overlooked by legal scholarship. Second, because the scope of application of EU law and that of the Charter are identical, the latter suffers from the same uncertainties as the former. This article concludes that the entry into force of the Charter has exposed the blurred contours of the application of EU law, in particular in the area of the market freedoms. As a result, a certain spontaneous harmonization of human rights protection has emerged.


Filippo Fontanelli
Respectively, Senior Lecturer in International Economic Law, University of Edinburgh; and Associate Professor, Università degli Studi di Napoli ‘Federico II’. The work is the outcome of both authors’collaboration. Amedeo Arena drafted sections A to C, Filippo Fontanelli drafted sections D to G.

Amedeo Arena
A previous version of this work appeared in M. Andenas, T. Bekkedal & L. Pantaleo (Eds.), The Reach of Free Movement, Springer, TMC Asser Press, 2017, p. 293-312. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

The Sovereign Strikes Back

A Judicial Perspective on Multi-Layered Constitutionalism in Europe

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords Constitutional identity, constitutionalism, fragmentation, globalization, multilayered constitution, sovereignty, trust
Authors Renáta Uitz and András Sajó
AbstractAuthor's information

    The supranational web of public law is often described as a new constitutionalism. It emerged in a globalized world together with global markets. In the course of the multilayered constitutional experiment, the old, national constitutional framework had lost its ability to deliver on the key features associated with constitutionalism: limiting the exercise of political powers and preventing the arbitrary exercise thereof. In the multilayered era it has become difficult to pinpoint the centre of authority. Ultimately, someone needs to govern, if not for other reasons, at least to avoid chaos. Is it possible to have the guarantees of freedom, rule of law and efficiency that a constitutional democracy seems to provide in a system where there is no sovereign with authority?


Renáta Uitz
Renáta Uitz is Professor, Chair of the Comparative Constitutional Law Program, Department of Legal Studies, Central European University, Budapest.

András Sajó
András Sajo is University Professor, Central European University, Budapest. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

Access_open Crisis in the Courtroom

The Discursive Conditions of Possibility for Ruptures in Legal Discourse

Journal Netherlands Journal of Legal Philosophy, Issue 1 2018
Keywords crisis discourse, rupture, counterterrorism, precautionary logic, risk
Authors Laura M. Henderson
AbstractAuthor's information

    This article addresses the conditions of possibility for the precautionary turn in legal discourse. Although the precautionary turn itself has been well-detailed in both legal and political discourse, insufficient attention has been paid to what made this shift possible. This article remedies this, starting by showing how the events of 9/11 were unable to be incorporated within current discursive structures. As a result, these discursive structures were dislocated and a new ‘crisis discourse’ emerged that succeeded in attributing meaning to the events of 9/11. By focusing on three important cases from three different jurisdictions evidencing the precautionary turn in legal discourse, this article shows that crisis discourse is indeed employed by the judiciary and that its logic made this precautionary approach to counterterrorism in the law possible. These events, now some 16 years ago, hold relevance for today’s continuing presence of crisis and crisis discourse.


Laura M. Henderson
Laura M. Henderson is a researcher at UGlobe, the Utrecht Centre for Global Challenges, at Utrecht University. She wrote this article as a Ph.D. candidate at the Vrije Universiteit Amsterdam.

    Indigenous claims have challenged a number of orthodoxies within state legal systems, one of them being the kinds of proof that can be admissible. In Canada, the focus has been on the admissibility and weight of oral traditions and histories. However, these novel forms are usually taken as alternative means of proving a set of facts that are not in themselves “cultural”, for example, the occupation by a group of people of an area of land that constitutes Aboriginal title. On this view, maps are a neutral technology for representing culturally different interests within those areas. Through Indigenous land use studies, claimants have been able to deploy the powerful symbolic capital of cartography to challenge dominant assumptions about “empty” land and the kinds of uses to which it can be put. There is a risk, though, that Indigenous understandings of land are captured or misrepresented by this technology, and that what appears neutral is in fact deeply implicated in the colonial project and occidental ideas of property. This paper will explore the possibilities for an alternative cartography suggested by digital technologies, by Indigenous artists, and by maps beyond the visual order.


Kirsten Anker Ph.D.
Associate Professor, McGill University Faculty of Law, Canada. Many thanks to the two anonymous reviewers for their frank and helpful feedback.

    International cooperation is the key to the strongest peace in the world, to really constructive relations and the political, economic, cultural and humanistic development among all countries, all peoples and all mankind. There is an “extraordinary danger of the current moment,” the Science and Security Board of the Bulletin of the Atomic Scientists said on January 25, 2018, when it decided to move the hand of the iconic Doomsday Clock to 2 minutes to midnight. The last time the symbolic Clock was this closing to midnight was in 1953, at the height of the First Cold War. (2) Now, 65 years later, we are in a Second Cold War, which propels a new and millionaire arms race into space, preparing a space war of inestimable consequences. The world community is “seriously concerned” about this concrete possibility, that can result in a limitless global collapse.
    The UN General Assembly Resolution 72-77, of December 7, 2017, makes an appeal “to all States Members, in particular those with major space capabilities, to contribute actively to preventing an arms race in outer space with a view to promoting and strengthening international cooperation in the exploration and use of outer space for peaceful purposes”. This resolution also “requests the Committee [The United Nations Committee on the Peaceful Uses of Outer Space – UNCOPUOS] to continue to consider, as a matter of priority, ways and means of maintaining outer space for peaceful purposes.” In its point of view, “the Committee should continue to consider the broader perspective of space security and associated matters that would be instrumental in ensuring the safe and responsible conduct of space activities, including ways to promote international, regional and inter regional cooperation to that end.” (3) As if that were not enough, we are facing an unprecedented climate crisis today. The mainstream media seek to conceal or minimize the fact. But this is part of the problem of the need to maximize international cooperation. Without it, the crisis will continue to spread and threaten the lives of millions of people around the world. In this way, can international space cooperation be carried out effectively “on an equitable and mutually acceptable basis,” as proposed the Declaration on International Cooperation (General Assembly Resolution 51/122, of December 13, 1996)? (4)
    Is it possible to ensure today “an equitable situation” on “a mutually acceptable basis” between developed and developing nations, whose distance increases more and more, mainly in military affairs? The present paper aims to discuss this and other similar issues.


José Monserrat Filho
Brazilian Association of Air and Space Law (SBDA); Brazilian Society for the Progress of Science (SBPC); International Institute of Space Law (IISL).
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