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    In this paper I propose to analyse the binary notion of personal data and highlight its limits, in order to propose a different conception of personal data. From a risk regulation perspective, the binary notion of personal data is not particularly fit for purpose, considering that data collection and information flows are tremendously big and complex. As a result, the use of a binary system to determine the applicability of EU data protection law may be a simplistic approach. In an effort of bringing physics and law together, certain principles elaborated within the quantum theory are surprisingly applicable to data protection law, and can be used as guidance to shed light on many of today’s data complexities. Lastly, I will discuss the implications and the effects that certain processing operations may have on the possibility of qualifying certain data as personal. In other terms, how the chances to identify certain data as personal is dependent upon the processing operations that a data controller might put in place.


Alessandro El Khoury
Alessandro El Khoury, LLM, Legal and Policy Officer, DG Health & Food Safety, European Commission.
Part II Private Justice

ADR-Rooted ODR Design in Europe

A Bet for the Future

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords ODR, dispute system design, European law, redesign of ADR systems, artificial intelligence
Authors Fernando Esteban de la Rosa
AbstractAuthor's information

    The new European regulatory framework has a greater significance than it expressly declares, both for the development of online dispute resolution (ODR) in Europe and for the structure of alternative dispute resolution (ADR) entities of the Member States. A close reading of the ADR Directive reveals an implicit but clear mandate for the development and intensive use of ODR tools by certified ADR entities that could lead to the creation of new ODR platforms. The new ADR/ODR regulatory framework shows a clear tendency to produce important transformations in the traditional ADR structure in every Member State. This article aims to identify criteria for the development of ODR in Europe and to discover the European law’s implicit mandates related to the redesign of the ADR structure in the Member States, while assessing the role of the Member States, the ADR entities and the European Union itself.


Fernando Esteban de la Rosa
Fernando Esteban de la Rosa is Chair in Private International Law, University of Granada, Spain; NCTDR fellow.
Part II Private Justice

Using Technology and ADR Methods to Enhance Access to Justice

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords ODR, ADR, mediation, online court, e-court, consumer ADR, CADR, CDR, ombudsman
Authors Pablo Cortes
AbstractAuthor's information

    This article discusses how technology and extrajudicial processes can provide a solution to the access-to-justice problem for self-represented litigants. The article first observes the need for efficient dispute resolution processes based on a wider concept of access to justice and argues for greater integration amongst courts and extrajudicial bodies, especially in the consumer sphere where dispute resolution bodies are currently undergoing an institutionalization process as a result of recent EU legislation. Accordingly, it is argued that access to justice for consumers will only be achieved if they have access to either an accountable and effective extrajudicial scheme that offers adjudication or a truly user-friendly and accessible online court that incorporates alternative dispute resolution techniques as the United Kingdom has endeavoured to deliver. To that end, this article examines the policy options for the English Online Court with a particular focus on the challenges faced by litigants in person. Finally, this article submits that dispute system design changes need to be informed by empirical research and a holistic policy strategy on dispute resolution.


Pablo Cortes
Pablo Cortes is Professor of Civil Justice, Leicester Law School, University of Leicester.
Part I Courts and ODR

Ethical Concerns in Court-Connected Online Dispute Resolution

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords court ODR, fourth party, ethics, access to justice, confidentiality, transparency, informed participation, accessibility, accountability, empowerment, trust
Authors Dorcas Quek Anderson
AbstractAuthor's information

    This article examines the burgeoning trend of creating court ODR systems, focusing on the design aspects that are likely to raise ethical challenges. It discusses four salient questions to be considered when designing a court ODR system, and the resulting ethical tensions that are brought to the fore. As a fourth party, the ODR system not only replaces existing court functions, but enlarges the scope of the courts’ intervention in disputes and increases the courts’ interface with the user. Furthermore, certain ethical principles such as transparency, accountability, impartiality and fairness take on greater significance in the court context than in private ODR, because of the association of the courts with substantive and procedural justice. As in any dispute resolution system, a coherent and effective court ODR system should be guided by dispute system design principles, which includes having clarity of the system’s underlying values and purposes. It is therefore pertinent for each court to resolve the key ethical tensions in order to articulate the foundational values that will undergird the design of its ODR system.


Dorcas Quek Anderson
Dorcas Quek Anderson is an Assistant Professor in the Singapore Management University School of Law. This research is supported by the National Research Foundation, Prime Minister’s Office, Singapore (NRF), and the Infocomm Media Development Authority (IMDA) under a grant to the Singapore Management University School of Law to helm a 5-year Research Program on the Governance of Artificial Intelligence and Data Use.

    The Israeli health system consists of approximately 200,000 employees in a variety of positions, such as: doctors, nurses, pharmacists, psychologies, physical therapists, lab workers, speech therapists, occupational therapists, dieticians, orderlies, administrators and housekeeping workers and many more. (Ministry of Health, 2016). The system has gone through long-lasting struggles, conflicts and crises initiated by power groups and various functional representations and unions. This article will focus on conflicts occurring between doctors, in their professional occupation, and the governmental ministries (Health and Treasury). In addition, it will examine the processes that encourage the occurrence of conflicts in the health system. Even though doctors do not represent the entire health system, it is important to emphasize that they are its beating heart. Their weight in the general health system is extremely high, much higher than their relative part therein.
    In addition, this article will examine a struggle by doctors to shorten their long shift hours, by exposing the root causes and the reasons that led to the struggle’s demise, without the achievement of their declared goals. This article will suggest that tools appropriate for a true resolution of conflicts in the health system should be tailored and specific to the complexity of the system (as in a delicate surgery), as opposed to more general tools such as mediation, and certain “copy-paste” tools used for conflict resolution in other disciplines.


Adi Niv-Yagoda
Dr. Adi Niv-Yagoda, Ph.D, LL.M, LL.B is an expert in medical law and health policy; Advocate and Lecturer at the School of Medicine and Faculty of Law, Tel Aviv University.
Article

Access_open The Integrity of the Tax System after BEPS: A Shared Responsibility

Journal Erasmus Law Review, Issue 1 2017
Keywords flawed legislation, tax privileges, tax planning, corporate social responsibility, tax professionals
Authors Hans Gribnau
AbstractAuthor's information

    The international tax system is the result of the interaction of different actors who share the responsibility for its integrity. States and multinational corporations both enjoy to a certain extent freedom of choice with regard to their tax behaviour – which entails moral responsibility. Making, interpreting and using tax rules therefore is inevitably a matter of exercising responsibility. Both should abstain from viewing tax laws as a bunch of technical rules to be used as a tool without any intrinsic moral or legal value. States bear primary responsibility for the integrity of the international tax system. They should become more reticent in their use of tax as regulatory instrument – competing with one another for multinationals’ investment. They should also act more responsibly by cooperating to make better rules to prevent aggressive tax planning, which entails a shift in tax payments from very expert taxpayers to other taxpayers. Here, the distributive justice of the tax system and a level playing field should be guaranteed. Multinationals should abstain from putting pressure on states and lobbying for favourable tax rules that disproportionally affect other taxpayers – SMEs and individual taxpayers alike. Multinationals and their tax advisers should avoid irresponsible conduct by not aiming to pay a minimalist amount of (corporate income) taxes – merely staying within the boundaries of the letter of the law. Especially CSR-corporations should assume the responsibility for the integrity of the tax system.


Hans Gribnau
Professor of Tax Law, Fiscal Institute and the Center for Company Law, Tilburg University; Professor of Tax Law, Leiden University, The Netherlands.
Article

Ethical Principles for Online Dispute Resolution

A GPS Device for the Field

Journal International Journal of Online Dispute Resolution, Issue 1 2016
Keywords ODR, ethics, alternative dispute resolution, technology
Authors Leah Wing
AbstractAuthor's information

    The disruptive force of technology has led to innovative dispute resolution practices that increase access to justice and also raise new ethical considerations. In response, there have been assertions about the importance of applying to online dispute resolution (ODR) the shared values already enshrined within alternative dispute resolution (ADR) as well as calls to more carefully assess ways they may be insufficient or need refining to adequately address the new ethical challenges emerging in ODR. As ODR is increasingly incorporated into legislation, regulation and a wide variety of sectors in society, it is timely to explore the importance of ethical principles specifically for ODR. In the hope of contributing to these efforts, this article examines the benefits and challenges of articulating a set of ethical principles to guide the development and implementation of ODR systems, technology and processes.


Leah Wing
Leah Wing is Co-Director, National Center for Technology and Dispute Resolution, and Senior Lecturer, Legal Studies Program, Department of Political Science, University of Massachusetts at Amherst (USA).

    Arbitration is an important feature of the American justice system, providing numerous benefits, such as flexible dispute resolution, efficiency, privacy and avoidance of unwarranted punitive damages, while significantly reducing cases on overloaded court dockets. Its success, however, is not without criticism; and in the case of class arbitration waivers, as this article suggests, that criticism is well founded.
    Since the enactment of the Federal Arbitration Act (FAA) in 1925, the United States Supreme Court has pronounced a sweeping policy in favour of arbitration. More recently, the Court has made significant pronouncements in favour of class arbitration waivers, overruling a lower-court trend towards refusing to enforce such waivers.
    The Supreme Court’s endorsement of class arbitration waivers unfortunately results in claim preclusion of consumer claims for relatively small amounts of money. Stuck in this relatively inequitable playing field, there exists an opportunity to design innovative solutions to protect consumers from claim preclusion. Online binding arbitration, OArb, offers numerous benefits that offset its drawbacks, and it provides an accessible forum for some consumers to effectuate small claims. While OArb has failed to gain traction as an alternative dispute resolution process, it seems likely that a private, properly administered OArb programme could succeed and provide benefits to companies and consumers alike. OArb, however, is not a complete substitute for class arbitration, especially because numerous consumers are probably unaware of their claims. OArb, nevertheless, is a step in the right direction, and consumers are sure to benefit if it is implemented on a wider scale.


Andrew M. Malzahn
Andrew M. Malzahn, J.D., summa cum laude, 2015, Hamline University School of Law; Associate, Dady & Gardner, P.A., Minneapolis, Minnesota.

Maria Dakolias
M. Dakolias is counsel in the World Bank's Legal Department where she works on legal and judicial reform projects. The views expressed in this article are her views and not those of the organization she represents.

Javier Said
J. Said is an international consultant for innovation and technology management projects for the public sector including judicial reform. The authors wish to thank Judge John Lockhart for his comments. In addition, they wish to thank Alexandra Hunneus for her research assistance.
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