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Article

Unwrapping the Effectiveness Test as a Measure of Legislative Quality

A Case Study of the Tuvalu Climate Change Resilience Act 2019

Journal European Journal of Law Reform, Issue 1 2021
Keywords effectiveness test, legislative quality, drafting process, Tuvalu Climate Change Resilience Act 2019
Authors Laingane Italeli Talia
AbstractAuthor's information


Laingane Italeli Talia
Laingane Italeli Talia is Senior Crown Counsel, Attorney General’s Office of Tuvalu
Case Notes

The Hungarian Constitutional Court’s Decision on the Protection of Groundwater

Decision No. 13/2018. (IX. 4.) AB of the Constitutional Court of Hungary

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords environmental impact assessment, precautionary principle, non-derogation principle, Constitutional Court of Hungary, groundwater
Authors Gábor Kecskés
AbstractAuthor's information

    On 28 August 2018, the Constitutional Court of Hungary delivered a milestone decision [Decision No. 13/2018. (IX. 4.) AB] in relation to the protection of groundwater with reference to the general protection of the environment as a constitutionally protected value. The President of the Republic pointed out in his petition to the Constitutional Court that two sections of the draft legislation are contrary to the Fundamental Law by violating Articles B(1), P(1) and XXI(1) of the Fundamental Law by permitting water abstraction with much lower standards. Adopted by the majority along with concurring and dissenting opinions, the decision is an important judicial achievement in the general framework of constitutional water and environmental protection. It also confirms the non-derogation principle elaborated by the Constitutional Court. The Constitutional Court had the opportunity and an ‘open mind’ to take into consideration numerous sources of scientific professional evidence on the stock of water and groundwater abstraction. The decision was acclaimed for its environmental orientation, and even more, for developing the 25-year old standards of constitutional review in environmental matters by elaborating on the implicit substance of several articles enshrined in the new Fundamental Law (e.g. Articles P and XXI).


Gábor Kecskés
Gábor Kecské: research fellow, Eötvös Loránd Research Network, Centre for Social Sciences, Institute for Legal Studies, Budapest; associate professor of law, Széchenyi István University, Győr.
Article

The CETA Opinion of the CJEU

Redefining the Contours of the Autonomy of the EU Legal Order

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords CETA, settlement of investment disputes, autonomy of EU law, Achmea, multilateral investment court
Authors Tamás Szabados
AbstractAuthor's information

    In its Opinion 1/17, the CJEU confirmed that the investor-state dispute settlement mechanism of the Comprehensive Economic and Trade Agreement (CETA or the Agreement) entered into between Canada and the EU is compatible with EU law. In the view of the CJEU, the CETA does not have an adverse effect on the autonomy of the EU legal order; it does not violate the principle of equality, the effectiveness of EU law and the right of access to an independent tribunal. Some of the findings of the Opinion are, however, controversial. In particular, it is questionable whether the autonomy of EU law is indeed unaffected by the Agreement, because it seems that in certain situations an interpretation of EU law is hardly avoidable for the CETA Tribunal and the Appellate Tribunal to make. With its Opinion, the CJEU not only lends support to similar trade and investment protection agreements, but it also paves the way for the participation of the EU in creating a multilateral investment court as long as the limits set by the CJEU are observed.


Tamás Szabados
Tamás Szabados: associate professor of law, ELTE Law School, Budapest.
Article

Aviators Grounded by COVID-19 (But Mediators Are Ready to Fly)

Journal Corporate Mediation Journal, Issue 1 2020
Keywords Fledgling mediators, Master Mediators, Ken Cloke, John Sturrock, Mediator’s Flight Plan
Authors Anna Doyle
AbstractAuthor's information

    Fledgling mediators are nourished by the wisdom of Master Mediators, until they find their wings and take to the sky. This is a personal perspective, inspired by the author’s attendance at a Master Class given by Ken Cloke in Edinburgh in 2008 (organised by John Sturrock of Core). It echoes precious wisdom, skilfully imparted and gratefully received. The Mediator’s Flight Plan has happily kept the author’s feet ‘off the ground’ for the past 12 years and has inspired her to fly. She shares it now in the hope that it may also inspire other mediators to dare to soar.


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

Key Factors of the Development and Renewal of the Social Market Economy in the EU

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords Europe 2020 strategy, social market economy, eco-social market economy, social welfare systems, EU structural funds
Authors István Kőrösi
AbstractAuthor's information

    The purpose of this study is to present the principles, strategy and operation of the social market economy, based on legal, political and economic considerations. The first social market economy, West Germany – followed by Austria, the Netherlands, as well as other countries in Northern and Western Europe –, mustered a positive overall performance from the post-World War II years to the early 1970s. Since then, however, we have been witnessing the erosion, distortion and decline of efficiency of the social market economy. There are four main issues to be addressed: (i) What are the main theoretical and conceptual, ‘eternal’ elements of the social market economy? (ii) What economic policy was built on this theoretical foundation and why did the system work well in Western Europe after World War II? (iii) What factors eroded this system? (iv) Can social market economy be renewed in the second decade of the 21st century and, if it can, what are the preconditions of it? In my analysis, I highlight some key areas: EU policies, Lisbon Agenda and Europe 2020 strategy, growth, financial disequilibria and competitiveness, innovation and employment, the relation of state and market.


István Kőrösi
Associate professor, Pázmány Péter Catholic University, Budapest; senior research fellow, World Economic Institute of ERRC of the Hungarian Academy of Sciences.
Article

Sustainable Developments in Foreign Investment Law and Policy

Related to Renewable Energy and Climate Change Mitigation and Adaptation

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords sustainable development, climate change mitigation, Paris Agreement, renewable energy law, ICSID
Authors Marie-Claire Cordonier Segger
AbstractAuthor's information

    Sustainable development is gradually integrated into policies worldwide, meanwhile, government authorities and policymakers, alongside public and private enterprises, are signaling the growing scope and scale of investment opportunities in this field. Capital cuts and decreasing generating costs are fueling the market in renewable technologies. At the same time, bilateral and multilateral treaties are being negotiated, which set the framework for expanding sustainable solutions: treaty regimes increasingly encourage and promote trade and investment for more sustainable energy development, responding to global concerns on climate change. Investment protection litigation offers new insights into trends in jurisprudence, demonstrating how this field of law can be instrumental not only for protecting undertakings’ interests, but holding countries to their commitments under international treaties for the protection of the environment.


Marie-Claire Cordonier Segger
Senior director, Centre for International Sustainable Development Law (CISDL); professor of law, University of Waterloo, Canada.
Introduction

Access_open Towards Responsible Business Conduct in Global Value Chains

Relevant Legal Developments in the Netherlands

Journal Erasmus Law Review, Issue 4 2019
Keywords responsible business conduct, business and human rights, corporate social responsibility, sustainable development, the Netherlands
Authors Liesbeth Enneking and Jeroen Veldman
AbstractAuthor's information

    The past few decades have seen an increasing scrutiny of the impacts – both positive and negative – that companies have on the societies in which they operate. The search for adequate responses to such scrutiny is reflected in developments in the societal, political and academic debate on three separate but interrelated concepts: corporate social responsibility, business and human rights and responsible business conduct. The focus in this Special Issue will be on law and policy relating to responsible business conduct in global value chains. The contributions in this Special Issue identify relevant developments and institutions in the Netherlands, including rules and regulations related to trade, investment and corporate governance as well as cases related to corporate and consumer responsibilities, and assess their role in relation to the potential to provide a positive response to the concern about the human and environmental impacts of business activities. Together, they provide a multi-perspective view of relevant gaps and/or best practices with regard to regulatory governance in the Netherlands while at the same time enabling a comparative debate on the extent to which these diverse developments and institutions are in line with stated policy goals in this context both at national and EU levels. In doing so, this Special Issue aims to contribute to further coherence between national and EU policies with regard to RBC in global value chains and sustainable development.


Liesbeth Enneking
Liesbeth Enneking is Professor of Legal Aspects of International Corporate Social Responsibility at Erasmus School of Law, Erasmus University Rotterdam.

Jeroen Veldman
Jeroen Veldman is Visiting Associate Professor at Rotterdam School of Management, Erasmus University Rotterdam, Visiting Associate Professor at Mines Paristech, Interdisciplinary Institute for Innovation, Paris and Section Editor Corporate Governance at the Journal of Business Ethics.
Article

Access_open Consumer Social Responsibility in Dutch Law

A Case Study on the Role of Consumers in Energy Transition

Journal Erasmus Law Review, Issue 4 2019
Keywords consumer, energy transition, social responsibility, Dutch law, EU law
Authors Katalin Cseres
AbstractAuthor's information

    As our economies continue to focus on growth, competition and maximisation of consumer choice, the global increase in consumption takes vast environmental and social costs and cause irreversible harm to our climate and environment. The urgency of reducing human footprint and to diminish one of the root causes of a declining climate and environment is irrefutable. In the shift that globally has to take place, a decentralised energy system relying on more distributed generation, energy storage and a more active involvement of consumers form a crucial component of renewable energy solutions. The move from a highly centralised to a more decentralised power system involves an increasing amount of small-scale (intermittent) generation from renewable energy which is located closer to the point of final consumption. In order to steer consumption towards sustainability national governments and supranational organisations have adopted policies and corresponding legislation that address individual consumers as rational and active choice-makers who make socially responsible choices when they receive the ‘right’ amount of information. By relying on insights from modern consumption theories with contributions from sociology, this article questions the effectiveness and legitimacy of these ‘consumer-centred’ policies and laws. First, the article argues that the single focus on individual consumer behaviour as a rational and utility maximising market actor fails to take into account the complexity of consumption, which is fundamentally influenced by social norms and its broader institutional setting. Although consumers are willing to consume more sustainably, they are often ‘locked in by circumstances’ and unable to engage in more sustainable consumption practices even if they want to. Second, by relying on evidence from sociological studies the article argues that individual consumers are not the most salient actors in support of sustainable consumption. Even though the urgency of the energy transition and the critical role consumers play in (un)sustainable energy consumption is acknowledged in both the EU and its Member States, their laws and policies remain grounded on goals of economic growth with competitive economies, the sovereignty of consumer choice and wealth maximisation, instead of aiming at slower economic growth or even degrowth, reducing overall resource use and consumption levels and introducing radically different ways of consumption.
    Third, the role of law is underlined as a social institution both as a constraint on the autonomous acts of consumption, dictating the normative frameworks within which the role of consumer is defined, and as a facilitator which consumers might also employ, in order to determine for themselves particular normative parameters within which consumption can occur.
    The Netherlands, which serves as a case study in this article, has reached important milestones in its energy transition policy since 2013. Still, it remains strongly focused on economic rationality and market competitiveness. Even though various models of consumer participation exist and local consumer energy initiatives are flourishing and are recognised as key actors in the energy transition, they remain embedded in institutional, structural and behavioural settings where consumers still face challenging sociocultural barriers to sustainable practices.
    In light of these legal, political and social complexity of energy transition, the article offers a critical analysis of the current Dutch law in its broader legal context of EU law in order to answer the question what the role of (energy) law is in steering consumers towards sustainable energy consumption.


Katalin Cseres
Katalin Cseres is Associate Professor of Law, Amsterdam Centre for European Law & Governance (ACELG), University of Amsterdam.
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 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.
Report

The 2018 Manfred Lachs Space Law Moot Court Competition

Case Concerning Conflicting Activities in Outer Space, Planetary Protection, and Outer Space Security (The Democratic Republic of Neapilia v. The Republic of Kalvion)

Journal International Institute of Space Law, Issue 12 2018
Authors Melissa K. Force
Author's information

Melissa K. Force
Co-Chair, Manfred Lachs Space Law Moot Court Committee, IISL.

Mahulena Hofmann
University of Luxembourg, Mahulena.Hofmann@uni.lu.
Article

Access_open Ownership, Governance and Related Trade-Offs in Agricultural Cooperatives

Journal The Dovenschmidt Quarterly, Issue 4 2014
Keywords investment constraints, collective decision-making, organizational complexity, agricultural cooperative, residual ownership rights
Authors Constantine Iliopoulos
AbstractAuthor's information

    Agricultural cooperatives represent a key institutional arrangement in the world food and agriculture industries. Understanding these business organizations by adopting multi-disciplinary perspectives serves both scholarly and societal needs. This article addresses two issues: (1) how agricultural cooperatives choose from a plethora of ownership and governance features and (2) what are the main trade-offs cooperatives face in making these choices. Both issues have important implications for the efficiency of collective entrepreneurship organizations in food supply chains and thus for food nutrition security and food quality. The article proffers observations based on the extant literature and the author’s field experience. It is concluded that agricultural cooperatives choose ownership and governance features in an attempt to attract risk capital for investments while optimizing collective decision-making efficiency. The main trade-offs that cooperatives address while making these choices are between (1) investor mentality and member-patron control, (2) organizational complexity and vagueness of ownership rights, (3) the need for risk capital and member control, (4) organizational complexity and member control and (5) management monitoring costs and the costs of collective decision-making. These observations are highly relevant for organizational scholars, cooperative practitioners and policymakers as they inform decision-making in cooperatives in more than one way.


Constantine Iliopoulos
Dr. Iliopoulos is the Director of the Agricultural Economics Research Institute and Adjunct Professor at the Agricultural University of Athens, Athens, Greece. E-mail: iliopoulosC@agreri.gr.
Article

Access_open Can Corporate Law on Groups Assist Groups to Effectively Address Climate Change?

A Cross-Jurisdictional Analysis of Barriers and Useful Domestic Corporate Law Approaches Concerning Group Identification and Managing a Common Climate Change Policy

Journal The Dovenschmidt Quarterly, Issue 3 2014
Authors Tineke Lambooy and Jelena Stamenkova van Rumpt
Author's information

Tineke Lambooy
Tineke Lambooy is Professor Corporate Law at Nyenrode Business University and Associate Professor Corporate Social Responsibility at Utrecht University.

Jelena Stamenkova van Rumpt
Jelena Stamenkova van Rumpt, LLM, is Advisor Responsible Investment at PGGM (Dutch Asset Manager for Pension Funds).

Diane Howard
Embry Riddle Aeronautical University
Article

Continuous Mixed Forestry and the Citizens Forest Model

Journal European Journal of Law Reform, Issue 1 2013
Keywords continuous mixed forestry in Europe, citizen forest society, forest law reform, climate change, social forest ethics
Authors J.W. Simon and W. Bode
AbstractAuthor's information

    Climate change, air pollution and especially short-rotation forestry are the main causes for increasing detrimental effects on forests. Therefore, it is urgently necessary to find effective counteractions to this damage so that forests will become resistant, grow sustainably and are more economically effective and thus contribute optimally to the common welfare for all citizens. ‘Continuous mixed forestry’, in contrast to the normally used short-rotation or age-classed-forestry, is one suitable model to counteract climate change and air pollution in this way on both the local and national level. It is forestry without clear-cuts, biocides and with soft logging by continuous thinning and natural regeneration.The necessary change to this sustainable cultivation model is generally possible and necessary all over Europe and in other areas of the world. A very good chance for this type of forestry is available now within the framework of selling state-owned forests to private investors. This selling is planned by governments in some countries like the Great Britain1xThe Guardian, 22 December 2010, For sale: all of our forests. Not some of them, nor most of them – the whole lot, 11:55 GMT; Frankfurter Allgemeine Zeitung (2011), In love of the forest (Aus Liebe zum Forst), 4 February, No. 29, p. 5. But the British Government has apparently changed its view, see: The Guardian, 17 February 2011, Timber! Cameron in U-turn over forests sell-off, p. 1. and has been partly realised on a large scale in Germany.2xE.g. Lower House of the German Parliament (2009), answer of the Federal Government to the small question … Privatisation of forests by the Federal Institute of Real Estate Tasks, 16. Election period, Drucks. 16/14115, 30 September 2009. This article proposes selling the state-owned forests to a central, private national heritage foundation as a first step instead of transferring them with their traditional, mismanaged short rotation or age-classed forestry to private investors who would continue the state mismanagement. The task of the foundation would be to organize the ‘citizen forest society’ as a social-ethics–based society that is privately owned by citizens and the foundation. This would generate ecological advantages for the forest and moreover long-lasting profits for citizens, because the foundation would establish other organizations where the citizens become responsible owners of ‘their’ forest without any governmental or third-party influence.This proposal describes a solution to the demands of social-oriented ethics, which are primarily focused on the cooperation of responsible persons, represented by the private ownership of the forests, and directed by a responsible foundation.

Noten

  • 1 The Guardian, 22 December 2010, For sale: all of our forests. Not some of them, nor most of them – the whole lot, 11:55 GMT; Frankfurter Allgemeine Zeitung (2011), In love of the forest (Aus Liebe zum Forst), 4 February, No. 29, p. 5. But the British Government has apparently changed its view, see: The Guardian, 17 February 2011, Timber! Cameron in U-turn over forests sell-off, p. 1.

  • 2 E.g. Lower House of the German Parliament (2009), answer of the Federal Government to the small question … Privatisation of forests by the Federal Institute of Real Estate Tasks, 16. Election period, Drucks. 16/14115, 30 September 2009.


J.W. Simon
University of London, Institute for Advanced Legal Studies/Centre for Ethics and Law in the Life Sciences, Medical University Hannover.

W. Bode
Leit.Min.R., Ministerium für Umwelt und Verbraucherschutz/Saarland, 66121 Saarbrücken, Germany.
Article

Trade in Oil and Export Restrictions

Taking the Organization of the Petroleum Exporting Countries to the WTO Court

Journal European Journal of Law Reform, Issue 1 2012
Keywords WTO, dispute settlement, US, OPEC, oil
Authors Bashar H. Malkawi
AbstractAuthor's information

    The Organization of the Petroleum Exporting Countries (OPEC), as seen by observers, resembles a greedy international cartel that preys on the public in defiance of market competition. High oil prices are considered as a principal cause of the US economic woes. Some US congressmen pinpointed OPEC’s alleged inconsistency with the World Trade Organization (WTO) rules and called upon the US administration to open dispute settlement proceedings against OPEC. This article discusses the legal issues arising from a US action at the WTO level against OPEC countries. The first sections of the article comprise an institutional review of the WTO and OPEC. The article addresses the interplay between the WTO and OPEC. It then illustrates the central provisions of the WTO that can be used for arguments and counter-arguments concerning such a WTO action. It culminates with a set of concluding thoughts.


Bashar H. Malkawi
Associate Professor of Commercial Law, University of Sharjah, UAE. He received his LL.B from Yarmouk University in 1999, LL.M from University of Arizona College of Law in 2001, S.J.D from American University, Washington College of Law in 2005. The author would especially like to thank the two outside reviewers for their direction, feedback and invaluable insight. He also thanks the law journal editors and staff writers for their hard work in polishing the article.
Editorial

Access_open Validity and Compatibility of the SAM and KLD Screening Instruments

Journal The Dovenschmidt Quarterly, Issue 1 2012
Keywords Corporate sustainability performance (measurement), screening instruments, sustainability rating agencies, Sustainable Asset Management (SAM), Corporate Sustainability Analysis Framework (CSAF), sustainability (reporting) guidelines, content analysis, Sustainability Items
Authors Egbert Dommerholt
AbstractAuthor's information

    The discussion about corporate sustainability performance already has a rich and longstanding history.Todate corporate sustainability performance is a key issue in many companies. However, when asked what it means or how to apply this construct in a concrete business context, many entrepreneurs and managers are not able to give an answer. This confusion may be due to the multitude of definitions and descriptions of corporate sustainability performance constructs.To get a better understanding of corporate sustainability performance and to help companies shape their corporate sustainability performance, a plenitude of (reporting) guidelines are available today. However, because of a rich variation in foci, these guidelines also contribute to the corporate sustainability performance confusion among business people.Companies are no longer solely judged on the financial performance, but they also have to account for their sustainability performance to a variety of stakeholders. However, along with the increasing attention of stakeholders for corporate sustainability performance, the number of organizations that assessing companies’ governance, social, ecological and economic performance also increasesThe aim of this paper is to research the validity and compatibility of the screening instruments of two widely respected sustainability rating agencies: the Zurich (Switzerland) based Sustainable Asset Management Group (SAM) and the Boston (USA) based KLD analytics, Inc (KLD). These screening instruments are benchmarked against the Corporate Sustainability Analysis Framework designed and developed by Dommerholt 2009. The results suggest that the SAM and KLD instruments are imperfect measures of corporate sustainability performance, implying that the validity of these measures is questionable. The results also show that the screening instruments are not really compatible indicating that these instruments cannot be used interchangeably because of differences in the underlying conceptions of corporate sustainability performance. Therefore we can say that these screening instruments too seem to add to the confusions surrounding corporate sustainability performance (measurement).


Egbert Dommerholt
Lecturer at the Hanze University of Applied Sciences, Groningen and research associate at the Institute of Corporate Law, Governance and Innovation Policy (ICGI) of the Maastricht University.

    Africa is a major source of commodities and other natural resources. However, such wealth has not yet led to economic development or to increased living standards. On the contrary, Africa remains underdeveloped while other regions of the world enjoy significant, if not spectacular, success. Between 1970 and 2008, the pro-capita income of African energy-exporting countries has increased 72%, while that of African Least Developed Countries has decreased 13%, and that of remaining African countries has increased 31%; in the same period of time, the increase in pro-capita income for South Asian and East Asian low income countries has been, respectively, 236% and 223%, and that of China a staggering 1,531%.


Luca G. Castellani
Legal officer with the UNCITRAL Secretariat, Vienna, Austria. The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations.
Article

Safety and Liability Aspects of Solar Power Satellites

Recent Developments in Space Law

Journal International Institute of Space Law, Issue 5 2010
Authors R.S. Jakhu and D. Howard

R.S. Jakhu

D. Howard
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