Various of our academic board analysed employment law cases from last year. |
Search result: 376 articles
Case Law |
2022/1 EELC’s review of the year 2021 |
Journal | European Employment Law Cases, Issue 1 2022 |
Authors | Niklas Bruun, Filip Dorssemont, Zef Even e.a. |
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Journal | Politics of the Low Countries, Issue 1 2022 |
Keywords | Euroscepticism, parliaments, party competition, Belgium, federalism |
Authors | Jordy Weyns and Peter Bursens |
AbstractAuthor's information |
Euroscepticism has long been absent among Belgian political parties. However, since the start of the century, some Eurosceptic challengers have risen. This article examines the effect of Eurosceptic competition on the salience other parties give to the EU and on the positions these parties take in parliament. Using a sample of plenary debates in the federal and regional parliaments, we track each party’s evolution from 2000 until 2019. Our findings both contradict and qualify existing theories and findings on Eurosceptic competition. When facing Eurosceptic challengers, all parties raise salience fairly equally, but government and peripheral parties adopted (soft) Euroscepticism more often than other parties. |
Editorial |
Restorative spaces: how does the organisation of space contribute to the experience of justice? |
Journal | The International Journal of Restorative Justice, Issue 1 2022 |
Authors | David Tait and Munzer Emad |
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Book Review |
Lindsey Pointer, The restorative justice ritual |
Journal | The International Journal of Restorative Justice, Issue 1 2022 |
Authors | Gerry Johnstone |
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Journal | Corporate Mediation Journal, Issue 2 2021 |
Keywords | international commercial mediation, Belt and Road Initiative, Singapore Convention, China, international dispute resolution |
Authors | Henneke Brink |
AbstractAuthor's information |
With unfaltering determination, China continues to expand its Belt and Road Initiative (BRI). This article focuses on the preference that is given to mediation for the resolution of BRI-related disputes. China, Hong Kong and Singapore proclaim that this approach better fits with ‘Asian’ cultural values than adversarial processes like arbitration and litigation. The BRI can be seen as an innovative field lab where mechanisms for international commercial conflict management and resolution are being developed and put to action - and where legitimacy is tested. |
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The Use of Technology (and Other Measures) to Increase Court CapacityA View from Australia |
Journal | International Journal of Online Dispute Resolution, Issue 2 2021 |
Keywords | court capacity, COVID-19, Australia, online dispute resolution, open justice, procedural fairness, access to justice, online courts, justice technology, judicial function |
Authors | Felicity Bell, Michael Legg, Joe McIntyre e.a. |
AbstractAuthor's information |
The COVID-19 pandemic has forced courts around the world to embrace technology and other innovative measures in order to continue functioning. This article explores how Australian courts have approached this challenge. We show how adaptations in response to the pandemic have sometimes been in tension with principles of open justice, procedural fairness and access to justice, and consider how courts have attempted to resolve that tension. |
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Journal | Netherlands Journal of Legal Philosophy, Issue 2 2021 |
Keywords | Populism, Liberal democracy, Political representation, Société du spectacle, Theatrocracy |
Authors | Massimo La Torre |
AbstractAuthor's information |
Populism is a somehow intractable notion, since its reference is much too wide, comprising phenomena that are indeed in conflict between them, and moreover blurred, by being often used in an instrumental, polemical way. Such intractability is then radicalized through the two alternative approaches to populism, one that is more or less neutral, rooting in the political science tradition, and a second one, fully normative, though fed by political realism, founding as it does on a specific political theory and project. In the article an alternative view is proposed, that of populism as the politics that is congruent with the increasing role played by ‘screens’, icons, and images in social relationships and indeed in political representation. In this way populism is approached as the specific way politics is done within the context of a digitalized société du spectacle. |
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Journal | Netherlands Journal of Legal Philosophy, Issue 2 2021 |
Keywords | SARS-CoV-2 pandemic, The state’s duty to protect, Duty to rescue, Responsibility, Solidarity |
Authors | Konstantinos A Papageorgiou |
AbstractAuthor's information |
The article discusses a range of important normative questions raised by anti-COVID-19 measures and policies. Do governments have the right to impose such severe restrictions on individual freedom and furthermore do citizens have obligations vis-à-vis the state, others and themselves to accept such restrictions? I will argue that a democratic state may legitimately enforce publicly discussed, properly enacted and constitutionally tested laws and policies in order to protect its citizens from risks to life and limb. Even so, there is a natural limit, factual and normative, to what the state or a government can do in this respect. Citizens will also need to take it upon themselves not to harm and to protect others and in the context of a pandemic this means that endorsement of restrictions or other mandatory measures, notably vaccination, is not to be seen as a matter of personal preference concerning the supposedly inviolable sovereignty of one’s own body. |
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Journal | East European Yearbook on Human Rights, Issue 1 2021 |
Keywords | non-coherence theory of digital human rights, network approach, universality of human rights, transversality effect |
Authors | Mart Susi |
AbstractAuthor's information |
The idea of universality of human rights is under multidimensional challenges entailing the aspects of practice generalization and postmodern social theories with juridical ambitions. Competing theories continue to exist and the elements of choice between theories are determined by practice, convenience and economies and not necessarily by idealistic goals. Among the many arguments raised against the universality of human rights stands the network approach, which is characterized by permeability, its supportive purpose of vertical normative structures, its impact on the rise of social responsibility, obscuring effect on legitimacy and “reliance on trust”. Supportive purpose of vertical normative structures in a network means that private networks can articulate the claim for correctness in self-regulation due to the existence of the vertical normative backbone. One of the main reservations related to digital human rights law and remedies through the network approach is that of distortion of legitimacy. The article approaches these issues through a novel theoretical approach of non-coherence. |
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Journal | East European Yearbook on Human Rights, Issue 1 2021 |
Authors | Martin Fertmann and Matthias C. Kettemann |
AbstractAuthor's information |
Terms-of-service based actions against political and state actors as both key subjects and objects of political opinion formation have become a focal point of the ongoing debates over who should set and enforce the rules for speech on online platforms. |
Case Reports |
2021/42 Football referees are employees, not self-employed (UK) |
Journal | European Employment Law Cases, Issue 4 2021 |
Keywords | Employment Status |
Authors | Colin Leckey |
AbstractAuthor's information |
The Court of Appeal (CA) has allowed an appeal by HM Revenue & Customs (HMRC) against a decision that there was insufficient mutuality of obligation and control for football referees to be treated as employees for tax purposes. |
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Legislative Effectiveness From a Legislative Drafter’s PerspectiveAnalysing the Transgender Persons (Protection of Rights) Act, 2019 |
Journal | European Journal of Law Reform, Issue 3 2021 |
Keywords | Effectiveness Test, legislative quality, drafting process, Transgender persons (Protection of Rights) Act, 2019 |
Authors | Devika Gulati |
AbstractAuthor's information |
This article discusses the effectiveness of Transgender persons (Protection of Rights) Act, 2019 and tests the legislation against Dr. Maria Mousmouti’s Effectiveness Test. The author first attempts to trace the real purpose of the Act in terms of specific and broad purposes, and the micro, meso and macro goals. Secondly, the author examines the content of the Act in terms of the legislative techniques used, compliance and enforcement mechanism, and legislative communication. Thirdly, the author studies the context of the Act in terms of its coherence, accessibility and the choice of superstructure. |
Public Health Emergency: National, European and International Law Responses |
On the Constitutionality of the Punishment of Scaremongering in the Hungarian Legal System |
Journal | Hungarian Yearbook of International Law and European Law, Issue 1 2021 |
Keywords | scaremongering, clear and present danger, COVID-19 pandemic, freedom of expression, Constitutional Court of Hungary |
Authors | András Koltay |
AbstractAuthor's information |
Scaremongering criminalized as a limitation to freedom of speech in Hungarian law. In lack of relevant case-law, free speech commentators rarely discussed the provision until the Government took action to step up the fight against the COVID-19 pandemic, and the ensuing amendment of the Criminal Code in Spring 2020 brought the subject back to the forefront of public debate. The article analyses the constitutional issues related to the criminalization of scaremongering, taking the two available Constitutional Court decisions rendered in this subject as guideline. Though the newly introduced legislation attracted widespread criticism in Hungary and elsewhere in Europe, a thorough examination of the new statutory elements makes it clear that public debate and critical opinions may not be stifled by prosecuting individuals for scaremongering. Although the applicable standard cannot yet be determined with full accuracy, the Constitutional Court’s decisions and relevant academic analysis resolve the main issues in order to protect freedom of expression, while the clarification of further details remains a matter for the case-law. |
Anniversary: Commemorating the 90th Birthday of Ferenc Mádl, President of the Republic (2000-2005) |
Back to the Future: Ferenc Mádl, The Law of the European Economic Community (1974)Investment Protection Then and Now |
Journal | Hungarian Yearbook of International Law and European Law, Issue 1 2021 |
Keywords | Ferenc Mádl, investment protection, SEGRO and Horváth, Achmea, BIT |
Authors | Miklós Király |
AbstractAuthor's information |
The first part of the article (Sections 1-2) reviews Prof. Ferenc Mádl’s magnum opus, published in 1974, emphasizing the importance of the monograph’s publication in the communist era. It discusses the unique structure of the volume, which, from the perspective of undertakings and companies, examined the fundamental economic freedoms and EEC competition law in parallel. The second part (Sections 3-5) highlights the issue of investment protection, noting that Mádl’s early academic theorem has been vindicated decades later by the case-law of the CJEU, in particular in its SEGRO and Horváth judgment: Provisions ensuring free movement of capital serve to protect foreign investments as well. |
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. |
Developments in European Law |
The First Ever Ultra Vires Judgment of the German Federal Constitutional Court: PSPPWill the Barking Dog Bite More Than Once? |
Journal | Hungarian Yearbook of International Law and European Law, Issue 1 2021 |
Keywords | judicial dialogue, ultra vires, PSPP, German Federal Constitutional Court, infringement procedure |
Authors | Robert Böttner |
AbstractAuthor's information |
In May 2020, the German Federal Constitutional Court (FCC) delivered its judgment in the PSPP case. At first it seemed that it would be a remake of the Gauweiler/OMT case between the German Court and the CJEU. Shockingly, however, the German FCC decided that not only had the ECB acted ultra vires by failing to duly justify its PSPP decision, but it also found the CJEU to have delivered an incomprehensible and objectively arbitrary judgment by which the German Court was not bound. This case note not only traces the history of the PSPP proceedings, but it also tries to review the heavy criticism that the FCC’s verdict has garnered. In the context of European integration and due to the German FCC’s authority among supreme courts in Europe, it is a dangerous precedent, that the European Commission tries to curb through infringement proceedings. One can only hope that it will be settled for good and shall remain an unfortunate but singular incident. |
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Journal | Erasmus Law Review, Issue 2 2021 |
Keywords | strategic culture, international law, ISIS, parliamentary debates, interdisciplinarity |
Authors | Martin Hock |
AbstractAuthor's information |
This article presents an interdisciplinary comparison of British and German legal arguments concerning the justification of the use of force against the Islamic State in Iraq and Syria (ISIS). It is situated in the broader framework of research on strategic culture and the use of international law as a tool for justifying state behaviour. Thus, a gap in political science research is analysed: addressing legal arguments as essentially political in their usage. The present work questions whether differing strategic cultures will lead to a different use of legal arguments. International legal theory and content analysis are combined to sort arguments into the categories of instrumentalism, formalism and natural law. To do so, a data set consisting of all speeches with regard to the fight against ISIS made in both parliaments until the end of 2018 is analysed. It is shown that Germany and the UK, despite their varying strategic cultures, rely on similar legal justifications to a surprisingly large extent. |
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Journal | Erasmus Law Review, Issue 2 2021 |
Keywords | European Convention on Human Rights, European Court of Human Rights, techniques of interpretation, the Vienna Convention on the Law of Treaties |
Authors | Eszter Polgári |
AbstractAuthor's information |
The interpretive techniques applied by the European Court of Human Rights are instrumental in filling the vaguely formulated rights-provisions with progressive content, and their use provoked widespread criticism. The article argues that despite the scarcity of explicit references to the Vienna Convention on the Law of Treaties, all the ECtHR’s methods and doctrines of interpretation have basis in the VCLT, and the ECtHR has not developed a competing framework. The Vienna rules are flexible enough to accommodate the interpretive rules developed in the ECHR jurisprudence, although effectiveness and evolutive interpretation is favoured – due to the unique nature of Convention – over the more traditional means of interpretation, such as textualism. Applying the VCLT as a normative framework offers unique ways of reconceptualising some of the much-contested means of interpretation in order to increase the legitimacy of the ECtHR. |
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Cancelling proposed debatesAgenda Setting, Issue Ownership and Anti-elitist Parliamentary Style |
Journal | Politics of the Low Countries, Issue 3 2021 |
Keywords | agenda-setting, parliaments, anti-elitism, issue-ownership |
Authors | Simon Otjes and Roy Doedens |
AbstractAuthor's information |
The Dutch Tweede Kamer is unique among parliaments because here the agenda is actually determined in a public, plenary meeting of all MPs. In the Dutch Tweede Kamer 30 members of parliament (MPs) can request a plenary debate. Many opposition parties request these debates, but only 23% of these are actually held. We examine the question ‘under what conditions do political party groups cancel or maintain proposals for minority debates?’ as a way to gain insight into the black box of parliamentary agenda setting. We examine two complementary explanations: issue competition and parliamentary style. We trace all 687 minority debates that were proposed between 2012 and 2021 in the Netherlands. This allows us to see what proposals for debates MPs make and when they are retracted. We find strong evidence that anti-elitist parties maintain more debate proposals than do other parties |
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The Praise for a ‘Caretaker’ LeaderGendered Press Coverage of Prime Minister Sophie Wilmès in a COVID-19 Context |
Journal | Politics of the Low Countries, Issue 2 2021 |
Keywords | political leadership, crisis, care, Belgium, gendered media coverage |
Authors | Clémence Deswert |
AbstractAuthor's information |
Studies on media coverage of women politicians have underlined how the media contribute to the association of the figure of the political leader with masculinity. Yet, the social construction of leadership seems to evolve towards a more ‘femininity-inclusive’ definition. Research on the ‘glass cliff’ phenomenon suggests that stereotypical feminine attributes might be expected from political leaders in a time of crisis. We investigated the gendered construction of political leadership in the press in a COVID-19 context through the case of former Belgian Prime minister Sophie Wilmès. In line with the ‘think crisis-think female’ association, our discourse analysis shows an appreciation of traditionally feminine traits, and particularly care-related qualities, in the evaluation of what a ‘good’ leader should be in pandemic times, although some characteristics traditionally associated with masculinity are still considered valuable assets in the journalistic portrayal of Wilmès’ leadership. |