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Article

Access_open The Relationship between Empirical Legal Studies and Doctrinal Legal Research

Journal Erasmus Law Review, Issue 2 2020
Keywords empirical legal studies, legal research methods, doctrinal legal research, new legal realism, critical legal studies, law and policy
Authors Gareth Davies
AbstractAuthor's information

    This article considers how empirical legal studies (ELS) and doctrinal legal research (DLR) interact. Rather than seeing them as competitors that are methodologically independent and static, it suggests that they are interdependent activities, which may each be changed by interaction with the other, and that this change brings both opportunities and threats. For ELS, the article argues that DLR should properly be understood as part of its theoretical framework, yet in practice little attention is given to doctrine in empirical work. Paying more attention to DLR and legal frames generally would help ELS meet the common criticism that it is under-theorised and excessively policy oriented. On the other hand, an embrace of legal thinking, particularly of critical legal thinking, might lead to loss of status for ELS in policy circles and mainstream social science. For DLR, ELS offers a chance for it to escape the threat of insular sterility and irrelevance and to participate in a founded commentary on the world. The risk, however, is that in tailoring legal analysis to what can be empirically researched legal scholars become less analytically ambitious and more safe, and their traditionally important role as a source of socially relevant critique is weakened. Inevitably, in offering different ways of moving to normative conclusions about the law, ELS and DLR pose challenges to each other, and meeting those challenges will require sometimes uncomfortable self-reflection.


Gareth Davies
Gareth Davies is Professor of European Law at the Faculty of Law of the Vrije Universiteit Amsterdam.

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


Andrea Broderick
Andrea Broderick is Assistant Professor at the Universiteit Maastricht, the Netherlands.
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 Online First 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.

    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

Access_open On the Eve of Web-Harvesting and Web-Archiving for Libraries in Greece

Journal Erasmus Law Review, Issue 2 2019
Keywords web harvesting, data analysis, text & data mining, TDM: Proposal EU Copyright Directive
Authors Maria Bottis, Marinos Papadopoulos, Christos Zampakolas e.a.
AbstractAuthor's information

    This conference paper submitted on the occasion of the 8th International Conference on Information Law and Ethics (University of Antwerp, December 13-14, 2018) that focused on modern intellectual property governance and openness in Europe elaborates upon the Text and Data Mining (TDM) issue in the field of scientific research, which is still-by the time of composition of this paper-in the process of discussion and forthcoming voting before the European Parliament in the form of provision(s) included in a new Directive on Copyright in the Digital Single Market. TDM is included in the proposal for a Directive of the European parliament and of the Council on copyright in the Digital Single Market-Proposal COM(2016)593 final 2016/0280(COD) that was submitted to the European Parliament.


Maria Bottis
Associate Professor, Department of Archives, Library Science and Museology, Ionian University, Corfu, Greece.

Marinos Papadopoulos
Attorney-at-Law, Independent Researcher, PhD, MSc, JD, Athens, Greece.

Christos Zampakolas
Archivist/Librarian, Independent Researcher, PhD, MA, BA, Ioannina, Greece.

Paraskevi Ganatsiou
Educator, MA, BA, Prefecture of Ionian Islands, Corfu, Greece.
Article

Access_open Changes in the Medical Device’s Regulatory Framework and Its Impact on the Medical Device’s Industry: From the Medical Device Directives to the Medical Device Regulations

Journal Erasmus Law Review, Issue 2 2019
Keywords Medical Device Directive, Medical Device Regulation, regulatory, European Union, reform, innovation, SPCs, policy
Authors Magali Contardi
AbstractAuthor's information

    Similar to pharmaceutical products, medical devices play an increasingly important role in healthcare worldwide by contributing substantially to the prevention, diagnosis and treatment of diseases. From the patent law perspective both, pharmaceutical products and a medical apparatus, product or device can be patented if they meet the patentability requirements, which are novelty, inventiveness and entail industrial applicability. However, regulatory issues also impact on the whole cycle of the innovation. At a European level, enhancing competitiveness while ensuring public health and safety is one of the key objectives of the European Commission. This article undertakes literature review of the current and incoming regulatory framework governing medical devices with the aim of highlighting how these major changes would affect the industry at issue. The analysis is made in the framework of an on-going research work aimed to determine whether SPCs are needed for promoting innovation in the medical devices industry. A thorough analysis the aforementioned factors affecting medical device’s industry will allow the policymakers to understand the root cause of any optimal patent term and find appropriate solutions.


Magali Contardi
PhD candidate; Avvocato (Italian Attorney at Law).
Article

Complying with display rules: the ‘managed heart’ in restorative justice

complementing ritual theories of emotional bonding

Journal The International Journal of Restorative Justice, Issue 3 2019
Keywords Emotional bonding, emotion management, display rules, offstage performance, re-storying
Authors Bas van Stokkom
AbstractAuthor's information

    In this theoretical study it is argued, first, that ritual theories – at least those which are dominant in restorative justice literature – place too much emphasis on the potential positive impacts of emotional bonding. The author discusses some critical issues with respect to emotional bonding and points out that mutual understanding is rather the result of narrative re-appraising and re-assessing. Secondly, to explain the rather low emotional temperature of many (youth) conferences, emphasis is placed on emotion management theory, thereby suggesting that participants’ reservations and discomfort are related to rather demanding display rules (enact a sincere and authentic role; enact cooperativeness; etc.). The author identifies reasons why (young) participants cannot get grips on these rules and resort to a resigned ‘offstage’ performance. It is argued that display rules form an integral part of a relatively compelling ‘emotional regime’, a specific set of affective behavioural norms which define the ‘manners’ during the meeting. In this regime there is considerable social pressure to conform to norms and standards how to express emotions, which contradicts the restorative justice rhetoric of voluntary and spontaneous dialogue.


Bas van Stokkom
Bas van Stokkom is criminologist and research fellow at the Faculty of Law, Radboud University Nijmegen, the Netherlands.
Article

Law Reform in Ireland

Implementation and Independence of Law Reform Commission

Journal European Journal of Law Reform, Issue 4 2019
Keywords law reform, statute law revision, better regulation, access to legislation, lawyer’s law
Authors Edward Donelan
AbstractAuthor's information

    This article describes the origins and work of the Law Reform Commission in Ireland. The model follows that in Common Law countries. Its work includes both substantive law reform and statute law revision (weeding out spent or unused statutes and undertaking consolidation or other work to make statute law more accessible.) The work of the Commission focuses on ‘lawyers’ law’ and, therefore, avoids subjects that could be politically controversial. Consequentially, the bulk of its recommendations are accepted and translated into legislation.


Edward Donelan
Edward Donelan, PhD, M.A., Barrister-at-Law (Kings Inns, Dublin, Middle Temple, London), Dip. Eur. Law, Dip. Arb. Better Regulation and Legislative Drafting Expert, currently working on projects with the Attorney General in Botswana to develop a programme of law reform for the newly established Law Reform Unit in the Chambers of the Attorney General.
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

The EU Approach to Consumer ODR

Journal International Journal of Online Dispute Resolution, Issue 2 2019
Keywords consumer alternative/online dispute resolution, European Union, ODR Regulation 524/2013, ADR Directive 2013/11, ODR platform
Authors Emma van Gelder
AbstractAuthor's information

    The EU internal market has undergone several developments in the past decades. One of the main developments is the inclusion of a digital dimension. One of the fields in which these developments are very evident is the consumer market. A further development of e-commerce is however hindered because there are no suitable redress mechanisms for consumers involved in low-value, high volume claims typically arising from e-commerce transactions. In response to the ills of existing redress mechanisms, an emerging trend of consumer alternative dispute resolution (ADR) and consumer online dispute resolution (ODR) schemes has been identified throughout the Member States (MS) aimed to offer consumers a swift, cheap and simple procedure through which they can enforce their rightsThis paper outlines the EU approach to Consumer ADR/ODR, gives some observations of the functioning of the legislation in practice and concludes with some thoughts for the future.


Emma van Gelder
PhD Candidate Erasmus University, Rotterdam.

    The UN General Assembly established the International Law Commission (“ILC”) in 1947 to assist States with the promotion of 1) the progressive development of international law and 2) its codification. The ILC’s first assignment from the General Assembly was to formulate the Nuremberg Principles, which affirmed the then radical idea that individuals can be held liable for certain international crimes at the international level. Since then, the ILC has played a seminal role in the development of modern international criminal law. In 2017, the ILC adopted on first reading a draft convention aimed at the prevention and punishment of crimes against humanity which it transmitted to States for comments. The draft treaty will help fill the present gap in the law of international crimes since States criminalized genocide in 1948 and war crimes in 1949, but missed the opportunity to do so for crimes against humanity. This Article examines the first reading text using the lens of the ILC’s two-pronged mandate. Part II explains how the ILC can take up new topics and the main reasons why it decided to propose a new crimes against humanity convention. Part III discusses positive features of the draft convention, highlighting key aspects of each of the Draft Articles. Part IV critiques the ILC draft treaty focusing on inconsistencies in the use of the ICC definition of the crime, immunities, amnesties, and the lack of a proposal on a treaty monitoring mechanism. The final part draws tentative conclusions. The author argues that, notwithstanding the formal distinction drawn by the ILC Statute between progressive development, on the one hand, and codification, on the other hand, the ILC’s approach to the crimes against humanity topic follows a well settled methodology of proposing draft treaties that are judged likely to be effective and broadly acceptable to States rather than focusing on which provisions reflect codification and which constitute progressive development of the law. It is submitted that, if the General Assembly takes forward the ILC’s draft text to conclude a new crimes against humanity treaty after the second reading, this will make a significant contribution to the development of modern international criminal law.


Charles C. Jalloh B.A. LL.B Ph.D
Professor of Law, Florida International University and Member, International Law Commission.
Article

Access_open Mercosur: Limits of Regional Integration

Journal Erasmus Law Review, Issue 3 2019
Keywords Mercosur, European Union, regionalism, integration, international organisation
Authors Ricardo Caichiolo
AbstractAuthor's information

    This study is focused on the evaluation of successes and failures of the Common Market of the South (Mercosur). This analysis of Mercosur’s integration seeks to identify the reasons why the bloc has stagnated in an incomplete customs union condition, although it was originally created to achieve a common market status. To understand the evolution of Mercosur, the study offers some thoughts about the role of the European Union (EU) as a model for regional integration. Although an EU-style integration has served as a model, it does not necessarily set the standards by which integration can be measured as we analyse other integration efforts. However, the case of Mercosur is emblematic: during its initial years, Mercosur specifically received EU technical assistance to promote integration according to EU-style integration. Its main original goal was to become a common market, but so far, almost thirty years after its creation, it remains an imperfect customs union.
    The article demonstrates the extent to which almost thirty years of integration in South America could be considered a failure, which would be one more in a list of previous attempts of integration in Latin America, since the 1960s. Whether it is a failure or not, it is impossible to envisage EU-style economic and political integration in South America in the foreseeable future. So far, member states, including Brazil, which could supposedly become the engine of economic and political integration in South America, have remained sceptical about the possibility of integrating further politically and economically. As member states suffer political and economic turmoil, they have concentrated on domestic recovery before being able to dedicate sufficient time and energy to being at the forefront of integration.


Ricardo Caichiolo
Ricardo Caichiolo, PhD (Université catholique de Louvain, Belgium) is legal and legislative adviser to the Brazilian Senate and professor and coordinator of the post graduate programs on Public Policy, Government Relations and Law at Ibmec (Instituto Brasileiro de Mercado de Capitais, Brazil).
Article

Certain Factors Influencing Compliance with International Humanitarian Law

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords implementation of international humanitarian law, compliance measures and mechanisms, enforcement of international humanitarian law, non-state actors, individual criminal responsibility
Authors Réka Varga
AbstractAuthor's information

    There are various mechanisms within and outside the sphere of international humanitarian law (IHL) which contribute to a better application, respect and enforcement of its rules. The present study takes stock of specific factors or mechanisms that may have an effect on better respect. This analysis attempts to demonstrate that even though states could not agree on the setting up of a permanent mechanism to meet regularly and discuss IHLrelated issues (the so-called Compliance process), there are certain instruments which could lead to similar result. The UN’s role with respect to IHL is examined. The International Criminal Court (ICC) is also briefly analyzed from this perspective, bearing in mind the international politics within which it has to function. The International Humanitarian Fact-Finding Commission (IHFFC) that has successfully completed its first mandate is a string of hope if more frequently used. Soft law documents are filling a void caused by the fatigue of states in adopting new rules, at the same time they start to have a similarly binding effect as legally binding obligations. All these factors become especially interesting if we understand that most conflicts today are fought with the involvement of non-state armed groups who are not involved in law-making. This reality gives training, both within state and non-state armed forces a special significance. States should also make efforts to undertake enquiries in cases of serious violations of IHL, as well as through exercising jurisdiction to repress violations, be they their own nationals or not.


Réka Varga
Associate professor, Pázmány Péter Catholic University, Budapest; Member of the International Humanitarian Fact-Finding Commission.
Article

The Rights of the Victim in Hungarian Criminal Proceedings

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords rights of victims, code of criminal procedure in Hungary, victims in criminal procedure, Directive 2012/29/EU, rights of vulnerable persons
Authors Anna Kiss
AbstractAuthor's information

    In the course of the development of criminal law victims lost their former leading role in the procedure and were pushed to the periphery of justice. Legal experts have come to realize that this tendency is tremendously unfair to the victim. European documents on the legal position of the victims increasingly called the attention of the legislature to the need of bringing about changes. In Hungary, the relevant new law was passed in June 2017. The Code came into effect in July 2018 and confirmed the victim’s procedural position. Since July, there are three groups of victims’ rights in Hungarian Criminal Proceedings: provision of information and support; participation in criminal proceedings; protection of victims and recognition of victims in need of special protection. In addition to describing the rights, the study also draws attention to the fact in light of the principle that all rights are worth upholding it is not enough to regulate the rights of victims. The study also warns that although the rights of victims are important, we should not forget the guarantees concerning suspects’ rights, which must also be ensured.


Anna Kiss
Senior research fellow, National Institute of Criminology, Budapest.
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

Access_open Levying VAT in the EU Customs Union: Towards a Single Indirect Tax Area? The Ordeal of Indirect Tax Harmonisation

Journal Erasmus Law Review, Issue 3 2019
Keywords single indirect tax area, VAT action plan, quick fixes, e-commerce package, definitive VAT system
Authors Ben Terra
AbstractAuthor's information

    This contribution deals with the latest proposals regarding levying VAT in the European Union (EU) Customs Union. The present system, which has been in place since 1993 and was supposed to be transitional, splits every cross-border transaction into an exempted cross-border supply and a taxable cross-border acquisition. It is like a customs system, but lacks equivalent controls and is therefore the root of cross-border fraud. After many years of unsuccessful attempts, the Commission abandoned the objective of implementing definitive VAT arrangements based on the principle of taxing all cross-border supplies of goods in the Member State of their origin, under the same conditions that apply to domestic trade including VAT rates. The European Parliament and the Council agreed that the definitive system should be based on the principle of taxation in the Member State of the destination of the goods. After a brief discussion of the VAT Action Plan of 2016 (Section 1), the e-commerce package in the form of Directive (EU) 2017/2455 is dealt with (Section 2), followed by the proposal to harmonise and simplify certain rules in the VAT system and introduce the definitive system, only partially adopted (Section 3). Section 4 deals with the proposal to introduce detailed measures of the definitive VAT system. The proposed harmonisation and simplification of certain rules were meant to become applicable on 1 January 2019, but will become only partially applicable on 2020. It is proposed to make the detailed measures of the definitive VAT system applicable in 2022. It remains to be seen whether the Member States are willing to accept the definitive VAT system at all; hence the subtitle ‘the ordeal of indirect tax harmonisation’.


Ben Terra
Prof. Dr. Dr. h.c. Ben Terra was a professor of tax law at the universities of Amsterdam and Lund and visiting professor at the Universidade Católica in Lisbon.
Article

Access_open The Foundations of the Internal Market: Free Trade Area and Customs Union under Articles 28-31 TFEU

Journal Erasmus Law Review, Issue 3 2019
Keywords free trade area, EU Customs Union, internal market, European Union, Brexit
Authors Stefan Enchelmaier
AbstractAuthor's information

    This contribution places the provisions of the Treaty creating a free trade area and customs union between the Member States (Articles 28-31 TFEU) in their wider context. It then focuses on the interpretation of Article 30 in the jurisprudence of the Court of Justice of the European Union (CJEU). Throughout, it casts sideways glances at corresponding provisions of General Agreement on Tariffs and Trade (GATT). As it turns out, the abolition of customs duties and charges having equivalent effect, and the establishment of a customs union between Member States, were important milestones in the development of European unification. They became overshadowed later by more spectacular developments in the case law on the free movement of goods, persons and services. As a consequence, the importance of the customs provisions is widely underrated. Brexit concentrates the minds in this respect, as an important economy is about to rearrange and even recreate the basic building blocks of its international trading relations.


Stefan Enchelmaier
Stefan Enchelmaier, Dr iur (Bonn) habil (Munich) LLM (Edinb) MA (Oxon) is Professor of European and Comparative Law at Lincoln College, University of Oxford.
Article

Access_open Opening the Opaque Blank Box

An Exploration into Blank and Null Votes in the 2018 Walloon Local Elections

Journal Politics of the Low Countries, Issue 3 2019
Keywords voting, elections, blank vote, invalid vote, abstention
Authors Jean-Benoit Pilet, Maria Jimena Sanhuza, David Talukder e.a.
AbstractAuthor's information

    In this article, we propose an in-depth exploration of blank and null ballots in the recent 2018 local elections in Wallonia (Belgium). In the official results, both blank and null ballots are merged together and are classified as invalid votes. After obtaining the authorization to access genuine electoral ballots, we study the votes which were not considered for the composition of local councils in detail. The dataset is a representative sample of 13,243 invalidated ballots from 49 Walloon municipalities. We first describe how many of these invalidated ballots are blank and how many are null votes, as well as the nature of the nulled votes (unintended errors or intentionally spoiled ballots). Second, we dig deeper into the differences between ballots that have been intentionally invalidated by voters (blank votes and intentional null votes) and ballots non-intentionally invalidated. Our results show that most of the ballots (two-thirds) are null ballots and that among them, half are unintentional null ballots. Finally, we show that contextual (socio-demographic and political) factors explain the variations in intentional and unintentional null votes across municipalities.


Jean-Benoit Pilet
Jean-Benoit Pilet is professor of political science at Université libre de Bruxelles (ULB). He works on elections, political parties, and democratic reforms. He has recently co-authored Faces on the Ballot. The Personalization of Electoral Systems in Europe (OUP, 2016, with Alan Renwick) and The Politics of Party Leadership (OUP, 2016, with William Cross).

Maria Jimena Sanhuza
Maria Jimena Sanhueza is PhD Researcher in Political Science at Universite Libre de Bruxelles where she is associated to three projects studying Belgian politics. Her research focuses on citizenship, representation and democracy. Before starting her PhD, Maria Jimena worked as assistant researcher for EU HORIZON 2020 projects Pathways to Power and Solidarity in Times on Crisis, and co-authored a few publications on European democracies and representation.

David Talukder
David Talukder is PhD candidate at the Université libre de Bruxelles (ULB). He is conducting a thesis on the reform of representative democracy, looking at disadvantaged groups’ evaluation of representative democracy and demands for procedural democratic reforms. His main research interests are related to procedural democratic reforms, participatory democracy and democratic innovations.

Jérémy Dodeigne
Jérémy Dodeigne is associate professor in political science at the Université de Namur. His research areas cover the study of political representation in multilevel systems, local politics, comparative politics and mixed methods research designs. His work appears in journals such as Party Politics, American Behavioral Scientist, Local Government Studies, Regional & Federal Studies, Government & Opposition, and Representation.

Audrey E. Brennan
Audrey E. Brennan is completing a joint doctorate in political science at Université libre de Bruxelles (ULB) and Université Laval. Her research interests are political parties, elections, and political participation. Her dissertation studies the effect of leadership change mechanisms on the long-term behaviour of political party members.
Article

Split-Ticket Voting in Belgium

An Analysis of the Presence and Determinants of Differentiated Voting in the Municipal and Provincial Elections of 2018

Journal Politics of the Low Countries, Issue 3 2019
Keywords split-ticket voting, local elections, voting motives, Belgium, PR-system
Authors Tony Valcke and Tom Verhelst
AbstractAuthor's information

    This article tackles the particular issue of split-ticket voting, which has been largely overlooked in Belgian election studies thus far. We contribute to the literature by answering two particular research questions: (1) to what extent and (2) why do voters cast a different vote in the elections for the provincial council as compared to their vote in the elections for the municipal council?
    The article draws on survey data collected via an exit poll in the ‘Belgian Local Elections Study’, a research project conducted by an inter-university team of scholars.
    Our analysis shows that nearly 45% of the total research population cast a split-ticket vote in the local elections of 2018. However, this number drops to one out of four if we only consider a homogenous party landscape at both levels by excluding the numerous votes for ‘local’ lists (which occur mostly at the municipal level). This finding underlines the importance of accounting for the electoral and institutional context of the different electoral arenas in research on split-ticket voting in PR systems. In the Belgian context, split-ticket voting in 2018 also differed between the different parties and regions. Furthermore, it was encouraged by a higher level of education and familiarity with particular candidates. This candidate-centred and strategic voting was matched by party identification and the urban municipal context favouring straight-ticket voting. Other factors such as region, a rural municipal context and preferential voting seemed more relevant to determine voting for local parties than using the instrument of split-ticket votes as such.


Tony Valcke
Tony Valcke is Associate Professor at the Faculty of Political and Social Sciences of Ghent University (Belgium). He is a member of the Centre for Local Politics (CLP) and coordinator of the Teacher Training Department. His research, publications and educational activities focus on elections and democratic participation/innovation, (the history of) political institutions and (local) government reform, political elites and leadership, citizenship (education).

Tom Verhelst
Tom Verhelst is Assistant Professor at the Faculty of Political and Social Sciences at Ghent University (Belgium) and a postdoctoral research fellow at the Department of Political Science at Maastricht University (the Netherlands). His research focuses on the Europeanisation of local government (with a particular interest for the regulatory mobilisation of local government in EU decision-making processes) and on the role and position of the local council in Belgium and the Netherlands (with a particular interest for local council scrutiny).
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.
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