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Anniversary: Commemorating the 90th Birthday of Ferenc Mádl, President of the Republic (2000-2005)

Ferenc Mádl, the Hungarian Professor of European Law

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords Ferenc Mádl, private international law, Central Europe, V4, Hungary
Authors Endre Domaniczky
AbstractAuthor's information

    Living in a country under foreign occupation he became engrossed in the science of private law, and (under the influence and with the support of his masters) he started to study the characteristics of socialist, and later of Western European legal systems. Within the socialist bloc, he became one of the early experts on Common Market law, who, following an unexpected historical event, the 1989 regime change in Hungary, was also able to make practical use of his theoretical knowledge for the benefit of his country. In 2021, on the 90th anniversary of his birth and the 10th anniversary of his death, the article remembers Ferenc Mádl, legal scholar, member of the Hungarian Academy of Sciences, minister in the Antall- and Boross governments, former President of Hungary.


Endre Domaniczky
Endre Domaniczky: senior research fellow, Ferenc Mádl Institute of Comparative Law, Budapest.
Hungarian State Practice

An Institution for a Sustainable Future

The Hungarian Ombudsman for Future Generations

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords intergenerational equity, rights of future generations, ombudsman for future generations, Hungary, right to environment
Authors Kinga Debisso and Marcel Szabó
AbstractAuthor's information

    The purpose of this article is to give an insight into the process leading up to the establishment of the Hungarian Ombudsman for Future Generations and its tasks: an almost 15-year-old, unique legal institution aiming to protect the interests of future generations. The Ombudsman for Future Generations is an example for the institutionalization of the principle of intergenerational justice. The article aims to introduce the characteristics and strengths of the current institutional design and the structural features that allow for the successful operation of the Ombudsman for Future Generations in Hungary. Following an introduction to the political and historical context in which the institution was established, the article describes in detail the Ombudsman’s work, responsibilities, most important functions, elaborating on some examples of its best practices and achievements. Finally, the article touches upon how the example and experiences of the Hungarian institution may be valuable for other countries in Europe and beyond.


Kinga Debisso
Kinga Debisso: political advisor, Ministry of Justice, Budapest.

Marcel Szabó
Marcel Szabó: professor of law, Pázmány Péter Catholic University, Budapest; justice, Constitutional Court of Hungary, Budapest.
Developments in European Law

Whose Interests to Protect?

Judgments in the Annulment Cases Concerning the Amendment of the Posting Directive

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords posting of workers, freedom to provide services, posting directive, remuneration of posted workers, private international law
Authors Gábor Kártyás
AbstractAuthor's information

    The directive 96/71/EC on the posting of workers had been in force for over 20 years when its first amendment (Directive 2018/957) came into force on 30 July 2020. The Hungarian and Polish Governments initiated annulment proceedings against the new measure, primarily arguing that as the amendment extended the host state’s labor standards ó to posted workers, the directive is no longer compatible with the freedom to provide services (Cases C-620/18 and C-626/18). Although both claims were rejected, the actions contain a number of noteworthy legal arguments (from the perspective of home States), which highlight some of the long-known contradictions of EU legislation on postings. The article summarizes the CJEU’s key observations made in the judgments, which are important propositions for further discussion.


Gábor Kártyás
Gábor Kártyás: associate professor of law, Pázmány Péter Catholic University, Budapest.

Tejas Rao
Tejas Rao, B.A., LL.B. (Hons.), LL.M. (Cantab.), associate fellow, Centre for International Sustainable Development Law (CISDL), Montreal, Canada.
Case Notes

The Afterlife of the Relocation of Judicial Cases

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords right to a lawful judge, National Judicial Council, relocation of judicial cases, reasonable time, length of proceedings
Authors Ágnes Czine
AbstractAuthor's information

    The requirement of an independent and impartial tribunal established by law is set out in Article 6(1) ECHR and Article XXVIII(1) of the Fundamental Law of Hungary. The elements of the definition of the right to a fair trial are closely tied to the requirement of judicial independence, impartiality and a court established by law. These guarantees’ purpose is to ensure that the applicant receive a judgment that is not prejudged by other branches of power, such as the influence of the executive, or the arbitrariness of the judiciary. This important human and fundamental rights requirement is monitored by bodies dedicated to the protection of democratic institutions. According to the laws of Hungary, lawsuits may be transferred to another court by the National Office for the Judiciary in order to reduce the workload. This solution has received strong international attention and scrutiny. Although these are actually not in force, they still have repercussions, which must be dealt with by the Constitutional Court. This article seeks to provide insight into the constitutional afterlife of this system of reallocation.


Ágnes Czine
Ágnes Czine: justice, Constitutional Court of Hungary, Budapest; associate professor of law, and acting rector, Károli Gáspár University of the Reformed Church, Budapest.
Case Notes

Can a Two-Tailed Dog Be Allowed Into the Polling Booth?

The Case of Magyar Kétfarkú Kutya Párt Versus Hungary Before the ECtHR

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords freedom of speech, elections, ECtHR, democracy, secrecy of votes
Authors János Tamás Papp
AbstractAuthor's information

    The Hungarian satirical Two-Tailed Dog Party (Magyar Kétfarkú Kutya Párt – MKKP) applied to the ECtHR as a result of the decisions rendered by the Hungarian National Electoral Commission, the Curia of Hungary and the Constitutional Court, who ruled that a mobile application developed by the party allowing anonymous users to share their invalid votes violated Hungarian election law. By 16 votes to 1, the Grand Chamber of the ECtHR ruled that the Hungarian authorities had violated the Article of the ECHR on freedom of expression. According to the ECtHR’s reasoning, the severe uncertainties about the possible consequences of the legal provisions applied by the domestic authorities went beyond what is permissible under Article 10(2) ECHR. The ECtHR has ruled that a judicial interpretation of a law’s rules does not inherently violate the requirement that laws be written in such a way that the legal implications are predictable. However, since the national law in this case provided for a case-by-case limitation on the expression of an opinion on voting, electoral bodies and national courts that interpreted and enforced these rules enjoyed an excessive amount of discretion. In conclusion, the ECtHR found that legislation restricting freedom of expression must be treated more strictly in connection with electoral procedures: it must not be in any way misleading or inconsistent.


János Tamás Papp
János Tamás Papp: PhD candidate, research fellow, Pázmány Péter Catholic University, Budapest; media specialist, Institute for Media Studies of the Media Council of the National Media and Infocommunications Authority, Budapest.
Public Health Emergency: National, European and International Law Responses

Support for Families

A Way to Tackle COVID-19 and Its Implications in Hungary

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords family, children, vulnerable groups, social protection, housing benefits, labor market
Authors Éva Gellérné Lukács
AbstractAuthor's information

    COVID-19 poses a huge challenge for families and children; their exposure to economic, social and mental hardship is considerable and is confirmed by several studies. The pandemic pushes governments to allocate resources to the economy, but it is equally important to invest in the future by supporting families and children. The article outlines general tendencies in the EU and reflects on Hungarian measures in this field. During the first, second and third waves of COVID-19, a wide range of measures were introduced in Hungary. By extending the eligibility periods of family benefits for families with small children (both social insurance contribution-based and universal benefits) approximately 40,000 families (households) were covered. During the first and second COVID-19 waves, not only did the government extend benefit eligibility, but it also announced several new or renewed measures related to cash benefits and housing for families with at least one economically active parent. During the third wave eligibility periods of family benefits have again been extended. On the other hand, the unemployment benefit system remained intact, labor market pitfalls were addressed by providing wage subsidies.


Éva Gellérné Lukács
Éva Gellérné Lukács: senior lecturer, ELTE Law School, Budapest; external expert, Kopp Mária Institute for Demography and Families, Budapest.
Article

Access_open Hardship and Force Majeure as Grounds for Adaptation and Renegotiation of Investment Contracts

What Is the Extent of the Powers of Arbitral Tribunals?

Journal Erasmus Law Review, Issue 2 2021
Keywords contract adaptation, hardship, force majeure, investment contracts, arbitration
Authors Agata Zwolankiewicz
AbstractAuthor's information

    The change of circumstances impacting the performance of the contracts has been a widely commented issue. However, there seems to be a gap in legal jurisprudence with regard to resorting to such a remedy in the investment contracts setting, especially from the procedural perspective. It has not been finally settled whether arbitral tribunals are empowered to adapt investment contracts should circumstances change and, if they were, what the grounds for such a remedy would be. In this article, the author presents the current debates regarding this issue, potential grounds for application of such a measure and several proposals which would facilitate resolution of this procedural uncertainty.


Agata Zwolankiewicz
Agata Zwolankiewicz is an advocate trainee, graduated from the University of Silesia in Katowice (M.A. in law), and the University of Ottawa (LL.M. with concentration in international trade and foreign investment).

    Evaluations of restorative justice frequently report that only a minority of schools succeed in adopting a whole-school approach. More common are a consortium of practices necessitating the evaluation of schools not implementing the whole-school model but still achieving positive results. Previous research established that unconventional models have successful outcomes, yet little is known about the contextual factors and the causal mechanisms of different practices. This study finds that models of restorative justice facilitating student voice and consequently procedural justice have promising outcomes. Importantly, alternative models may be less resource-intensive, making them more feasible to fully implement.


Heather Norris
Heather Norris is a lecturer in the Department of Psychology at Aberystwyth University, Wales, UK. Corresponding author: Heather Norris at hnn1@aber.ac.uk.
Article

Access_open Text-mining for Lawyers: How Machine Learning Techniques Can Advance our Understanding of Legal Discourse

Journal Erasmus Law Review, Issue 1 2021
Keywords text mining, machine learning, law, natural language processing
Authors Arthur Dyevre
AbstractAuthor's information

    Many questions facing legal scholars and practitioners can be answered only by analysing and interrogating large collections of legal documents: statutes, treaties, judicial decisions and law review articles. I survey a range of novel techniques in machine learning and natural language processing – including topic modelling, word embeddings and transfer learning – that can be applied to the large-scale investigation of legal texts


Arthur Dyevre
Arthur Dyevre is Professor at the KU Leuven Centre for Empirical Jurisprudence, Leuven, Belgium. arthur.dyevre@kuleuven.be.
Article

Access_open Big Data Ethics: A Life Cycle Perspective

Journal Erasmus Law Review, Issue 1 2021
Keywords big data, big data analysis, data life cycle, ethics, AI
Authors Simon Vydra, Andrei Poama, Sarah Giest e.a.
AbstractAuthor's information

    The adoption of big data analysis in the legal domain is a recent but growing trend that highlights ethical concerns not just with big data analysis, as such, but also with its deployment in the legal domain. This article systematically analyses five big data use cases from the legal domain utilising a pluralistic and pragmatic mode of ethical reasoning. In each case we analyse what happens with data from its creation to its eventual archival or deletion, for which we utilise the concept of ‘data life cycle’. Despite the exploratory nature of this article and some limitations of our approach, the systematic summary we deliver depicts the five cases in detail, reinforces the idea that ethically significant issues exist across the entire big data life cycle, and facilitates understanding of how various ethical considerations interact with one another throughout the big data life cycle. Furthermore, owing to its pragmatic and pluralist nature, the approach is potentially useful for practitioners aiming to interrogate big data use cases.


Simon Vydra
Simon Vydra is a Researcher at the Institute for Public Administration, Leiden University, the Netherlands.

Andrei Poama
Andrei Poama is Assistant Professor at the Institute for Public Administration, Leiden University, the Netherlands.

Sarah Giest
Sarah Giest is Assistant Professor at the Institute for Public Administration, Leiden University, the Netherlands.

Alex Ingrams
Alex Ingrams is Assistant Professor at the Institute for Public Administration, Leiden University, the Netherlands.

Bram Klievink
Bram Klievink is Professor of Digitization and Public Policy at the Institute for Public Administration, Leiden University, the Netherlands.
Article

Opening an Absolute Majority A Typology of Motivations for Opening and Selecting Coalition Partners

Journal Politics of the Low Countries, Issue Online First 2021
Keywords negotiation, absolute majority, oversized coalition, motivations, local election
Authors Geoffrey Grandjean and Valentine Meens
AbstractAuthor's information

    Following the municipal elections in the Walloon Region (Belgium) on 14 October 2018, 189 political groups won an absolute majority. Twenty-two of these decided not to exercise power alone, but favoured the formation of an oversized coalition by integrating a minority partner. The aim of this article is to identify the motivations behind the formation of a local coalition when one of the partners has an absolute majority. Semi-structured interviews with mayors and leaders of political groups in these municipalities make it possible to identify the motivations for, first, the choice to open and, second, the choice of a minority partner. By distinguishing between necessary and supporting motivations, this article shows that the search for greater representation is a necessary motivation for the choice to open, whereas personal affinities and memories of the past are necessary motivations for choosing minority partners. By prioritising motivations, this article shows that.


Geoffrey Grandjean
Geoffrey Grandjean is Professor of Political Science at the Faculty of Law, Political Science and Criminology of the University of Liege and Director of the Institut de la decision publique.

Valentine Meens
Valentine Meens holds a master's degree in political science from the University of Liege.
Article

Access_open Using restorative justice to rethink the temporality of transition in Chile

Journal The International Journal of Restorative Justice, Issue 2 2021
Keywords temporality, transitional justice, restorative justice, Chile, ongoingness, multilayeredness & multidirectionality
Authors Marit de Haan and Tine Destrooper
AbstractAuthor's information

    Assumptions of linear progress and a clean break with the past have long characterised transitional justice interventions. This notion of temporality has increasingly been problematised in transitional justice scholarship and practice. Scholars have argued that a more complex understanding of temporalities is needed that better accommodates the temporal messiness and complexity of transitions, including their ongoingness, multilayeredness and multidirectionality. Existing critiques, however, have not yet resulted in a new conceptual framework for thinking about transitional temporalities. This article builds on insights from the field of restorative justice to develop such a framework. This framework foregrounds longer timelines, multilayered temporalities and temporal ecologies to better reflect reality on the ground and victims’ lived experiences. We argue that restorative justice is a useful starting point to develop such a temporal framework because of its actor-oriented, flexible and interactive nature and proximity to the field of transitional justice. Throughout this article we use the case of Chile to illustrate some of the complex temporal dynamics of transition and to illustrate what a more context-sensitive temporal lens could mean for such cases of unfinished transition.


Marit de Haan
Marit de Haan is a PhD researcher at the Human Rights Centre of Ghent University, Belgium.

Tine Destrooper
Tine Destrooper is Associate Professor of Transitional Justice at the Human Rights Centre of Ghent University, Belgium. Contact author: marit.dehaan@ugent.be.

Vidar Halvorsen
Vidar Halvorsen is a professor at the University of Oslo, Norway. Contact author: vidar.halvorsen@jus.uio.no.
Editorial

Access_open Where Were the Law Schools?

On Legal Education as Training for Justice and the Rule of Law (Against the ‘Dark Sides of Legality’)

Journal Netherlands Journal of Legal Philosophy, Issue 1 2021
Authors Iris van Domselaar
Author's information

Iris van Domselaar
Iris van Domselaar is associate professor in legal philosophy and legal ethics at the Amsterdam Law School, University of Amsterdam.
Article

When No One Wants to Mediate, Call the Mediator!

A Pre-COVID-19 Case Study Takes on New Significance in a Post-pandemic World

Journal Corporate Mediation Journal, Issue 1 2021
Keywords reflective practice, pre-COVID-19, conflict navigator, enhanced collective perspective, board members
Authors Anna Doyle
AbstractAuthor's information


Anna Doyle
Anna (Walsh) Doyle is an International Mediator & CMJ Editorial Board member. She is also an external Mediator on the Global Mediation Panel at the Office of the Ombudsman for UN Funds and Programmes (independent contractor serving on an on-call basis).
Article

Interest Representation in Belgium

Mapping the Size and Diversity of an Interest Group Population in a Multi-layered Neo-corporatist Polity

Journal Politics of the Low Countries, Issue 1 2021
Keywords interest groups, advocacy, access, advisory councils, media attention
Authors Evelien Willems, Jan Beyers and Frederik Heylen
AbstractAuthor's information

    This article assesses the size and diversity of Belgium’s interest group population by triangulating four data sources. Combining various sources allows us to describe which societal interests get mobilised, which interest organisations become politically active and who gains access to the policy process and obtains news media attention. Unique about the project is the systematic data collection, enabling us to compare interest representation at the national, Flemish and Francophone-Walloon government levels. We find that: (1) the national government level remains an important venue for interest groups, despite the continuous transfer of competences to the subnational and European levels, (2) neo-corporatist mobilisation patterns are a persistent feature of interest representation, despite substantial interest group diversity and (3) interest mobilisation substantially varies across government levels and political-administrative arenas.


Evelien Willems
Evelien Willems is a postdoctoral researcher at the Department of Political Science, University of Antwerp. Her research focuses on the interplay between interest groups, public opinion and public policy.

Jan Beyers
Jan Beyers is Full Professor of Political Science at the University of Antwerp. His current research projects focus on how interest groups represent citizens interests and to what extent the politicization of public opinion affects processes of organized interest representation in public policymaking.

Frederik Heylen
Frederik Heylen holds a PhD in Political Science from the University of Antwerp. His doctoral dissertation addresses the organizational development of civil society organizations and its internal and external consequences for interest representation. He is co-founder and CEO of Datamarinier.
Article

Access_open Curbing Drug Use in the Seychelles through Regulation beyond Legislation

Journal European Journal of Law Reform, Issue 1 2021
Keywords Seychelles, legislative drafting, drug abuse, drug abuse legislation
Authors Amelie Nourrice
AbstractAuthor's information

    This article was written with the intention of figuring out why the Seychelles has been unable to douse the drug epidemic despite apparent vigorous efforts on the part of the government and of finding a new way of curtailing drug abuse without relying entirely on legislation, which although in some ways are necessary, has on its own, been incapable serving efficacy.
    The article introduces a four step pyramid giving effect to a responsive approach which Braithwaite suggests lays ‘emphasis on the pyramidal regulatory structure, on regulation through engagement and dialogue rather than by dictat, on bringing third parties into what had been previously characterized as a binary regulator/regulatee interaction, and on the concept of the benign big gun.’
    Thus, by building a drug user’s capacity and providing the apt restorative treatment before labelling him as an offender and subjecting him to incapacitation, the drug user is offered an opportunity at restoration.
    The criteria featuring in the pyramid must work in conjunction with the law as this combination and the use of various actors at each tier is a significant way to effectively execute government policies without that strict and direct regulator/regulatee relationship whereby the former would otherwise lord it over the latter.


Amelie Nourrice
Amelie Nourrice is Legislative Drafter, Office of the Attorney General, The Seychelles.
Article

The Hallmarks of the Legislative Drafting Process in Common Law Systems:

A Comparative Study of Eswatini and Ghana

Journal European Journal of Law Reform, Issue 1 2021
Keywords legislation, comparing drafting process, Commonwealth Africa, comparative law
Authors Nomalanga Pearl Gule
AbstractAuthor's information

    This research study is an attempt to test the comparative criteria developed by Stefanou in his work where he discusses the characteristics that defines the drafting process in the two most dominant legal systems, common and civil law. It examines the legislative drafting process in common law countries with the aim to establish if the comparative criteria identify with the process that defines the drafting of legislation in those jurisdictions. Two common law jurisdictions were selected and an in-depth comparative analysis of steps undertaken in their drafting process was done. The scope of the study is only confined to the drafting process in the common law system and the criteria that is tested are those which define the drafting process in the common law jurisdictions only.


Nomalanga Pearl Gule
Nomalanga Pearl Gule is State Counsel, Government of Eswatini, Attorney at Law (Eswatini Bar). LL.B (UNISWA), LL.M Commercial Law (UCT), LL.M Drafting Legislation, Regulations, and Policy (IALS).
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