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    The Latvian Supreme Court recently used the ECJ Max Planck and Kreuziger judgments to explain how an employer can escape its obligation to compensate an employee for unused leave at the end of the employment relationship. The employer must prove that (a) it was possible for the employee to use the leave, and (b) the employer has in good time informed the employee that leave, if not used, might be lost and will not be compensated.


Gautier Busschaert
Gautier Busschaert is an Attorney at Van Olmen & Wynant.
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).
Article

Access_open The Court of the Astana International Financial Center in the Wake of Its Predecessors

Journal Erasmus Law Review, Issue 1 2019
Keywords international financial centers, offshore courts, international business courts, Kazakhstan
Authors Nicolás Zambrana-Tévar
AbstractAuthor's information

    The Court of the Astana International Financial Center is a new dispute resolution initiative meant to attract investors in much the same way as it has been done in the case of the courts and arbitration mechanisms of similar financial centers in the Persian Gulf. This paper examines such initiatives from a comparative perspective, focusing on their Private International Law aspects such as jurisdiction, applicable law and recognition and enforcement of judgments and arbitration awards. The paper concludes that their success, especially in the case of the younger courts, will depend on the ability to build harmonious relationships with the domestic courts of each host country.


Nicolás Zambrana-Tévar
LLM (LSE), PhD (Navarra), KIMEP University.
Article

How framing past political violence affects reconciliation in the Basque Country

The role of responsibility attributions and in-group victimhood

Journal The International Journal of Restorative Justice, Issue 2 2019
Keywords Political violence, apologies, in-group victimhood, responsibility attributions, Basque Country
Authors Magdalena Bobowik, Darío Páez, Nekane Basabe e.a.
AbstractAuthor's information

    The present study examines the impact of reminders of political violence with and without an apology on the desire for intergroup revenge in the context of political violence in the Basque Country. We expected attributions of responsibility and perceived in-group victimhood to explain these effects. A total of 257 Basque adults were assigned to three conditions: no reminder, reminders of political violence without an apology and reminders of political violence with an apology. Results showed that, as compared to no reminder condition, reminders of political violence without an apology led to assigning more responsibility to police forces and the Spanish state and less responsibility to Euskadi Ta Askatasuna (ETA) and Basque nationalism, as well as increased perceptions of in-group victimhood and the desire for intergroup revenge. Reminders of political violence accompanied by an apology activated less assignment of responsibility to police forces and the Spanish state, but more responsibility attributions to ETA and Basque nationalism, as well as activated perceptions of in-group victimhood. As expected, there was a sequential indirect effect of reminders without an apology (but not with an apology) on revenge through responsibility attributions and then perceptions of in-group victimhood. We discuss implications of these findings for intergroup relations in post-conflict contexts.


Magdalena Bobowik
Magdalena Bobowik is Post-doctoral Research Fellow at the Department of Social Psychology and Methodology of Behaviour Sciences at the University of the Basque Country, San Sebastian, Spain.

Darío Páez
Darío Páez is Full Professor at the Department of Social Psychology and Methodology of Behaviour Sciences at the University of the Basque Country, San Sebastian, Spain and at the Facultad de Educación y Ciencias Sociales, Universidad Andres Bello, Santiago de Chile, Chile.

Nekane Basabe
Nekane Basabe is Full Professor at the Department of Social Psychology and Methodology of Behaviour Sciences at the University of the Basque Country, San Sebastian, Spain.

Patrycja Slawuta
Patrycja Slawuta is a PhD Candidate at the New School for Social Research, New York, USA.

Albert Dzur
Albert Dzur is Distinguished Research Professor, Departments of Political Science and Philosophy, Bowling Green State University, USA.
Case Reports

2019/20 How to interpret the Posting of Workers Directive in the cross-border road transport sector? Dutch Supreme Court asks the ECJ for guidance (NL)

Journal European Employment Law Cases, Issue 2 2019
Keywords Private International Law, Posting of Workers and Expatriates, Applicable Law
Authors Zef Even and Amber Zwanenburg
AbstractAuthor's information

    In this transnational road transport case, the Dutch Supreme Court had to elaborate on the ECJ Koelzsch and Schlecker cases and asks for guidance from the ECJ on the applicability and interpretation of the Posting of Workers Directive.


Zef Even
Zef Even is a lawyer with SteensmaEven, www.steensmaeven.com, and professor at the Erasmus University Rotterdam.

Amber Zwanenburg
Amber Zwanenburg is a lecturer and PhD Candidate at the Erasmus University Rotterdam.
Article

Digital Identity for Refugees and Disenfranchised Populations

The ‘Invisibles’ and Standards for Sovereign Identity

Journal International Journal of Online Dispute Resolution, Issue 1 2019
Keywords digital identity, sovereign identity, standards, online dispute resolution, refugees, access to justice
Authors Daniel Rainey, Scott Cooper, Donald Rawlins e.a.
AbstractAuthor's information

    This white paper reviews the history of identity problems for refugees and disenfranchised persons, assesses the current state of digital identity programmes based in nation-states, offers examples of non-state digital ID programmes that can be models to create strong standards for digital ID programmes, and presents a call to action for organizations like International Organization for Standardization (ISO) and the United Nations High Commissioner for Refugees (UNHCR).


Daniel Rainey
Daniel Rainey is a Board Member, InternetBar.Org (IBO), and Board Member, International Council for Online Dispute Resolution (ICODR)

Scott Cooper
Scott Cooper is a Vice President, American National Standards Institute (retired).

Donald Rawlins
Donald Rawlins is a Candidate (May 2019), Master of Arts in Dispute Resolution, Southern Methodist University.

Kristina Yasuda
Kristina Yasuda is a Director of Digital Identities for the InternetBar.org and a consultant with Accenture Strategy advising large Japanese corporations on their digital identity and blockchain strategy.

Tey Al-Rjula
Tey Al-Rjula is CEO and Founder of Tykn.tech.

Manreet Nijjar
Manreet Nijjar is CEO and Co-founder of truu.id, Member of the Royal College Of Physicians (UK), IEEE Blockchain Healthcare Subcommittee on Digital Identity, UK All Party Parliamentary Group on Blockchain and Sovrin Guardianship task force committee.
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

Access_open What Is Left of the Radical Right?

The Economic Agenda of the Dutch Freedom Party 2006-2017

Journal Politics of the Low Countries, Issue 2 2019
Keywords radical right-wing populist parties, economic policies, welfare chauvinism, populism, deserving poor
Authors Simon Otjes
AbstractAuthor's information

    This article examines the economic agenda of the Dutch Freedom Party. It finds that this party mixes left-wing and right-wing policy positions. This inconsistency can be understood through the group-based account of Ennser-Jedenastik (2016), which proposes that the welfare state agenda of radical right-wing populist parties can be understood in terms of populism, nativism and authoritarianism. Each of these elements is linked to a particular economic policy: economic nativism, which sees the economic interest of natives and foreigners as opposed; economic populism, which seeks to limit economic privileges for the elite; and economic authoritarianism, which sees the interests of deserving and undeserving poor as opposed. By using these different oppositions, radical right-wing populist parties can reconcile left-wing and right-wing positions.


Simon Otjes
Assistant professor of political science at Leiden University and researcher at the Documentation Centre Dutch Political Parties of Groningen University.
Article

Transitional Constitutional Unamendability?

Journal European Journal of Law Reform, Issue 3 2019
Keywords transitional constitutionalism, constitutional unamendability, decline of constitutional democracy, constitution-making in Hungary, the Hungarian Constitutional Court
Authors Gábor Halmai
AbstractAuthor's information

    This article discusses the pros and cons for a suggestion to use unamendable provisions in transitional constitutions to protect the integrity and identity of constitutions drafted after a democratic transition. The presumption for such a suggestion could be that most democratic constitution-making processes are elite-driven exercises in countries with no or very little constitutional culture. The article tries to answer the question, whether in such situations unamendable constitutional provisions can help to entrench basic principles and values of constitutionalism with the help of constitutional courts reviewing amendments aimed at violating the core of constitutionalism. The article investigates the experiences of some backsliding constitutional democracies, especially Hungary, and raises the question, whether unamendable constitutional provision could have prevented the decline of constitutionalism.
    In order to discuss the issue of transitional unamendability, the article engages in the scholarly discussion on transitional constitutionalism in general, and deals with the relationship of constitutional law and constitutional culture. Another side topic of the article is whether such transitional unamendability provisions should also contain international or transnational values and principles, and what happens if those are not in conformity with the unamendable provisions that serve to build up a national constitutional identity. Again, the example of Hungary can be important here, how national constitutional identity protected by the Constitutional Court can serve to abandon the European constitutional whole.


Gábor Halmai
Gábor Halmai is Professor and Chair of Comparative Constitutional Law, European University Institute, Florence; email: gabor.halmai@eui.eu.
Article

Access_open Do Characteristics of Consociational Democracies Still Apply to Belgian Parties?

Journal Politics of the Low Countries, Issue 1 2019
Keywords Belgium, political parties, party membership, political participation, political representation
Authors Emilie Van Haute and Bram Wauters
AbstractAuthor's information

    Belgium has long been described as a typical case of a consociational or consensus democracy. This article aims at identifying whether political parties in Belgium share the internal characteristics of parties in consensus democracies: passive mass memberships, the importance of purposive and material incentives for joining, and representation of a clear subculture in the social and attitudinal profiles of their members and via overlapping memberships with related organizations. We mobilize longitudinal party membership data and party member surveys conducted in three different time periods. We show that pillar parties still exercise their role of mobilization and representation of societal segments, but these segments tend to become smaller over time. New parties offer alternative options of mobilization and representation, although not always in line with the specific institutional arrangements of consociational democracy.


Emilie Van Haute
Emilie Van Haute, Cevipol, Université libre de Bruxelles.

Bram Wauters
Bram Wauters, Research Group GASPAR, Ghent University.
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

Judging Reformers and Reforming Judges

Journal European Journal of Law Reform, Issue 1 2019
Keywords law reform, common law, judges, United Kingdom Supreme Court, legal reasoning
Authors James Lee
AbstractAuthor's information

    This article examines the practice and limits of judicial law reform. In particular, I consider the question of when initiation of a reform is appropriate for the judiciary as opposed to the legislature, an issue which has been a matter of controversy amongst the Justices of the United Kingdom Supreme Court. This question is assessed in the light of the institutional and constitutional competences of the courts, particularly with respect to the structure of common law reasoning. It is also argued that it is important to have regard to perspectives of the relevant judges, in understanding the individual and collective approaches to the judicial development of the law.


James Lee
James Lee is Reader in English Law and PC Woo Research Fellow 2016-2017 at The Dickson Poon School of Law, King’s College London, and Associate Academic Fellow of the Honourable Society of the Inner Temple; Senior Visiting Fellow, Gilbert + Tobin Centre of Public Law, University of New South Wales; and Visiting Professor, Hong Kong University. I am grateful to Enrico Albanesi, Mark Lunney, Jonathan Teasdale and all those who attended the Law Reform Workshop at the Institute of Advanced Legal Studies in November 2017 and a Kirby Seminar at the School of Law at the University of New England at which drafts of this article were presented. I thank both PC Woo & Co and the Faculty of Law at UNSW for the generous support for the project of which this article forms part. All views, and any errors, are my own.
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.
Part II Private Justice

Reputational Feedback Systems and Consumer Rights

Improving the European Online Redress System

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords reputational feedback systems, consumer’s protection, dispute resolution, ADR, ODR, enforceability, ecommerce, European redress system small claims
Authors Aura Esther Vilalta Nicuesa
AbstractAuthor's information

    The European Union single market needs to tackle an outstanding issue to boost competitiveness and growth: a trust-based redress framework that ensures the effectiveness of consumers’ rights. The current disparities among dispute resolution mechanisms, added to the fact that in practice many do not guarantee participation and enforceability, are serious obstacles to this goal. Trust and the integration of certain dispute avoidance tools added to the regulation of some common enforcement mechanisms are key issues in the field of consumer protection. The goal of this article is to offer some insights within the context of the European Union legislative proposals aimed at improving the current redress system.


Aura Esther Vilalta Nicuesa
Aura Esther Vilalta Nicuesa is Professor of Law, Universitat Oberta de Catalunya (UOC) and member of the National Center or Technology and Dispute Resolution, Massachusetts, Amherst.
Article

Access_open Empirical Legal Research in Europe: Prevalence, Obstacles, and Interventions

Journal Erasmus Law Review, Issue 2 2018
Keywords empirical legal research, Europe, popularity, increase, journals
Authors Gijs van Dijck, Shahar Sverdlov and Gabriela Buck
AbstractAuthor's information

    Empirical Legal research (ELR) has become well established in the United States, whereas its popularity in Europe is debatable. This article explores the popularity of ELR in Europe. The authors carried out an empirical analysis of 78 European-based law journals, encompassing issues from 2008-2017. The findings demonstrate that a supposed increase of ELR is questionable (at best).
    Moreover, additional findings highlight:

    • An increase for a few journals, with a small number of other journals showing a decrease over time;

    • A higher percentage of empirical articles for extra-legal journals than for legal journals (average proportion per journal is 4.6 percent for legal journals, 18.9 percent for extra-legal journals);

    • Criminal justice journals, environmental journals, and economically oriented journals being more likely to publish empirical articles than other journals;

    • More prestigious journals being more likely to publish empirical articles than less-prestigious journals;

    • Older journals being more likely to publish empirical work than younger journals, but not at an increasing rate;

    • Journals being legal/extra-legal, journals in a specific field, journal ranking, or the age of the journal not making it more (or less) likely that the journal will publish empirical articles at an increasing (or decreasing) rate.
      Considering the lack of convincing evidence indicating an increase of ELR, we identify reasons for why ELR is seemingly becoming more popular but not resulting in more empirical research in Europe. Additionally, we explore interventions for overcoming the obstacles ELR currently faces.


Gijs van Dijck
Professor of Private Law at Maastricht University, the Netherlands.

Shahar Sverdlov
Law student at the Vrije Universiteit Amsterdam, the Netherlands.

Gabriela Buck
Law student at Maastricht University, the Netherlands.
Article

Smart Enforcement

Theory and Practice

Journal European Journal of Law Reform, Issue 4 2018
Keywords regulatory inspections, regulatory enforcement, environmental regulations, smart regulation
Authors Dr. Florentin Blanc and Prof. Michael Faure
AbstractAuthor's information

    There is an increasing attention both on how inspections and enforcement efforts with respect to regulatory breaches can be made as effective as possible. Regulatory breaches refer to violations of norms that have been prescribed in public regulation, such as, for example, environmental regulation, food safety regulation or regulation aiming at occupational health and safety. The enforcement of this regulation is qualified as regulatory enforcement. It has been claimed that inspections should not be random, but based on risk and target-specific violators and violations. Such a “smart” enforcement policy would be able to increase the effectiveness of enforcement policy. Policy makers are enthusiastic about this new strategy, but less is known about the theoretical foundations, nor about the empirical evidence. This article presents the theoretical foundations for smart enforcement as well as some empirics. Moreover, the conditions under which smart enforcement could work are identified, but also a few potential limits are presented.


Dr. Florentin Blanc
Dr. Florentin Blanc is a consultant to the World Bank Group, OECD, and governments on investment climate and business environment.

Prof. Michael Faure
Prof. Michael Faure is Academic Director Maastricht European institute for Transnational Legal Research (METRO), Maastricht University, Professor of Comparative and International Environmental Law, Maastricht University and Academic Director of Ius Commune Research School, Maastricht University. He is also Professor of Comparative Law and Economics at Erasmus Law School (Rotterdam).
Article

Plain Language

A Promising Tool for Quality Legislation

Journal European Journal of Law Reform, Issue 4 2018
Keywords plain language, clarity, precision, accessibility, interpretation
Authors Kally K.L. Lam LLB
AbstractAuthor's information

    The hypothesis of this article is that plain language drafting with innovative drafting techniques can improve the quality of legislation. Further to this, the article tries to prove that quality legislation can also make the law more accessible to its general audience. With regard to quality, the article assesses plain language drafting with innovative drafting techniques using Helen Xanthaki’s criteria of quality in legislation, i.e. that it should be clear, precise and unambiguous. With regard to accessibility, it is defined broadly as to include readability. I will first assess whether plain language drafting with innovative drafting techniques can meet the expectations of its general audience and second discuss whether legislation drafted in plain language with innovative techniques passes the usability tests.


Kally K.L. Lam LLB
Kally K.L. Lam, LLB (University of Hong Kong), LLM (University of London) is Solicitor (Hong Kong).
Human Rights Practice Review

Croatia

Journal East European Yearbook on Human Rights, Issue 1 2018
Authors Maša Marochini Zrinski PhD
Author's information

Maša Marochini Zrinski PhD
PhD, assistant professor at the Department for Theory of Law and State, Philosophy of Law, Human Rights and Public Policy, Faculty of Law, University of Rijeka.
Article

Politics and Pragmatism

The Constitutional Court of the Russian Federation and Its 20 Years of Engagement with the European Convention on Human Rights

Journal East European Yearbook on Human Rights, Issue 1 2018
Keywords Constitutional Court of the Russian Federation, European Court of Human Rights, Russia
Authors Bill Bowring
AbstractAuthor's information

    After the highly controversial YUKOS judgment of 19 January 2017, on 23 May 2017 the Constitutional Court of the Russian Federation (CCRF) delivered a warmly received judgment, in which the provisions of the administrative offences legislation prohibiting stateless persons to challenge the reasonableness of their detention in special detention facilities was found to be unconstitutional. The CCRF was addressed by leading Russian human rights advocates. The judgment referred not only to Article 22 of the Russian Constitution but also to the analogous Article 5 of the ECHR. The judgment paid special attention to case-law: Guzzardi v. Italy (1980), Kemmache v. France (1994), Kurt v. Turkey (1998), Aleksei Borisov v. Russia (2015), and Z.A. v. Russia (2017), as well as Alim v. Russia (2011), Shakurov v. Russia (2012) and Azimov v. Russia (2013). Indeed, Strasbourg jurisprudence has played a central role in the development of the CCRF’s jurisprudence since Russia’s ratification of the ECHR in 1998. This article analyses and seeks to explain what in the author’s view is the CCRF’s serious engagement with a body of pan-European quasi-constitutional law, with which Russian jurists feel surprisingly comfortable and experienced. Is there really a cultural incompatibility between Russian and ‘Western’ approaches to human rights law?


Bill Bowring
Professor of Law, Birkbeck College, University of London.
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