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Public Health Emergency: National, European and International Law Responses

Defining the Common European Way of Life

Exploring the Concept of Europeanness

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords European identity, Common European Way of Life, coronavirus, European citizenship, Hungary, enlargement policy, Europeanness
Authors Lilla Nóra Kiss and Orsolya Johanna Sziebig
AbstractAuthor's information

    The article focuses on the interpretation of the European Way of Life and the concept of Europeanness. Ursula von der Leyen determined the Promotion of the European Way of Life as a priority of the 2019-2024 Commission. The purpose behind this was to strengthen European democracy and place the citizens into the center of decision-making. The article examines the role of European identity, European citizenship and those historical-traditional conditions that make our way of life ‘common’. The Common European Way of Life may be defined as a value system based on the established legal basis of EU citizenship that can be grasped in the pursuit of common principles and the exercise of rights guaranteed to all EU citizens, limited only under exceptional circumstances and ensuring socio-economic convergence. The article covers general conceptual issues but also focuses on the extraordinary impact of the COVID-19. Lastly, the relevant aspects of enlargement policy are also explored.


Lilla Nóra Kiss
Lilla Nóra Kiss: Visiting Scholar at Antonin Scalia Law School, George Mason University, Virginia, US.

Orsolya Johanna Sziebig
Orsolya Johanna Sziebig: senior lecturer, University of Szeged.
Public Health Emergency: National, European and International Law Responses

European State Aid Rules in Times of Pandemic

Distorting Competition Between European Airlines?

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords state aid, air transport, airlines, COVID-19 pandemic, Ryanair
Authors Mónika Papp
AbstractAuthor's information

    The outbreak of the COVID-19 pandemic had an immediate and profound impact on mobility and, more specifically, on air passenger transport: airlines were quickly stranded, and the Member States granted aid to air carriers subject to specific eligibility criteria. The Commission reacted swiftly to challenges posed by the COVID-19 pandemic and adopted its Temporary Framework under which vast amounts could be disbursed to market operators. The most controversial eligibility condition set by the Member States is the holding of a national license. This article’s research questions are, first, to explore the conditions under which Member States can grant large amounts of state aid to airlines, and second, to assess whether the requirement to hold a national license is compatible with EU law. By addressing these issues, this article seeks to improve our understanding of EU law’s capacity to tackle distortions of competition.


Mónika Papp
Mónika Papp: research fellow, Centre for Social Sciences, Eötvös Loránd Research Network, Budapest; senior lecturer, ELTE Law School, Budapest.
Developments in European Law

The Possibility of Using Article 72 TFEU as a Conflict-of-Law Rule

Hungary Seeking Derogation from EU Asylum Law

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords Article 72 TFEU, internal security, conflict of law, Common European Asylum System, relocation decisions
Authors Ágnes Töttős
AbstractAuthor's information

    The purpose of this article is to examine how the CJEU circumscribed the room for maneuver of Member States for safeguarding their internal security and whether the use of and reference to Article 72 TFEU changed over the past years. The starting point of the analysis is the Hungarian asylum infringement case: the article looks back at earlier case-law and identifies how the reference to Article 72 TFEU shifted from considering it an implementation clause to the attempts at using it as a conflict-of-law rule. Although the article finds that the CJEU reduced the scope of possibly using Article 72 TFEU as a conflict-of-law rule and practically excludes its application by the setting high standards for this unique form of application, the article examines some extreme situations from 2020 where it could be validly referred to.


Ágnes Töttős
Ágnes Töttős: senior government counselor, Government Office of the Prime Minister, Budapest.
Hungarian State Practice

The Public Trust Doctrine, the Non-Derogation Principle and the Protection of Future Generations

The Hungarian Constitutional Court’s Review of the Forest Act

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords public trust, non-derogation, Article P, Constitutional Court of Hungary, future generations
Authors Katalin Sulyok
AbstractAuthor's information

    This article analyzes the doctrinal findings of the Hungarian Constitutional Court with respect to the constitutional protection afforded to future generations in the Fundamental Law. It focuses on Decision No. 14/2020. (VII. 6.) AB in which the Constitutional Court abolished an amendment to the Forest Act for infringing the right to a healthy environment and the environmental interests of future generations as enshrined in Article P of the Fundamental Law. On this occasion, the Constitutional Court for the first time explicitly recognized that Article P embodies the public trust doctrine; and stressed that it confers fiduciary duties on the State to act as a trustee over the natural heritage of the nation for the benefit of future generations, which limits the executive’s discretion to exploit and regulate such resources. This article puts the Hungarian constitutional public trust in a comparative perspective by exploring the origins, role and functioning of similar constitutional public trust provisions in other jurisdictions. This is followed by setting out the normative principles derived by the Hungarian Constitutional Court in its previous practice from Article P, such as the non-derogation principle, the principle of inter-generational equity, the imperative of long-term planning, economical use of resources and the precautionary principle. The article then sets out the legal bases featured in the ex post constitutional challenge brought against the amendment of the Forest Act by the Ombudsman, and the Constitutional Court’s reasoning. It concludes with offering some wider lessons for the judicial enforcement of long-term environmental goals vis-á-vis short-term economic private interests.


Katalin Sulyok
Katalin Sulyok: senior lecturer, ELTE Law School, Budapest; chief legal advisor, Office of the Hungarian Ombudsman for Future Generations, Budapest.
Article

Restorative justice practice in forensic mental health settings: bridging the gap

Journal The International Journal of Restorative Justice, Issue Online First 2021
Keywords restorative justice in mental health, evidence-based practice, institutional settings, victims, ethics
Authors Gerard Drennan and Fin Swanepoel
AbstractAuthor's information

    The ‘clinic’ has developed sophisticated systems for responding to the challenge of serious mental health conditions. Mental health services combine hierarchical decision-making processes, with clear medical authority, with interventions that are required to be evidence-based to the highest standard. This is a system in which ethical, defensible practice is imperative to protect the public and to protect practitioners from legal liability in the event of adverse outcomes. Restorative justice interventions are powerful ‘medicine’. At their best, they change lives. However, the evidence base for formal restorative justice interventions when ‘administered’ to people with severe mental health difficulties is almost non-existent. It is into this relative vacuum of empirical support that initial steps are being taken to formalise access to restorative justice for mental health populations. This article will consider the challenges for applications of restorative justice in mental health settings and how the gap between the principle of equality of access and actual practice could be conceptualised and bridged. Recommendations include a rigorous commitment to meeting the needs of victims; a focus on the mental health patient’s capacity to consent rather than the capacity to benefit; practice-based evidence development and the inclusion of restorative justice awareness in all mental health practitioner training.


Gerard Drennan
Gerard Drennan is Head of Psychology & Psychotherapy at South London & Maudsley NHS Foundation Trust, London, United Kingdom.

Fin Swanepoel
Fin Swanepoel is a Restorative Justice Practitioner at South London & Maudsley NHS Foundation Trust, London, United Kingdom. Corresponding author: Gerard Drennan at Gerard.Drennan@slam.nhs.uk. Acknowledgements: We wish to thank the reviewers of the first submission of this article for their helpful comments and suggestions as the article was significantly improved by their guidance. We also wish to thank our colleagues in forensic mental health services who are also working to introduce restorative justice practices in their settings. We have learnt so much from their vision and commitment. We have been sustained in our journey because we journey with them.
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.

Albert Dzur
Albert Dzur is Distinguished Research Professor, Departments of Political Science and Philosophy, Bowling Green State University, USA. Contact author: awdzur@bgsu.edu.
Article

Exploring the growth and development of restorative justice in Bangladesh

Journal The International Journal of Restorative Justice, Issue 2 2021
Keywords restorative justice, Bangladesh, salish, village courts, INGOs
Authors Muhammad Asadullah and Brenda Morrison
AbstractAuthor's information

    Although restorative justice is a new concept in Bangladesh (BD), resolving wrongdoing outside the criminal justice system is not a new practice. Community-based mediation, known as salish, has been practised for centuries – withstanding colonisation, adaptation and distortion. Other practices, such as village courts and customary justice, are also prevalent in Bangladesh. Of these, village courts are currently the most widely practised in Bangladesh. Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ Bangladesh) formally introduced restorative justice in 2013 with the support of international non-governmental organisations (INGOs), NGOs, academics and government agencies. Most of the literature on community-based justice practice focuses on village courts; academic, peer-reviewed research on restorative justice in Bangladesh is scarce. This qualitative study explores the growth and development of restorative justice in Bangladesh. Using in-depth qualitative interviews and survey, the study retraces the genesis of restorative justice in Bangladesh. In recent times, GIZ Bangladesh has been key to the development of restorative justice, which was further expanded by UNDP’s Activating Village Courts project, as well as a graduate course on restorative justice at the University of Dhaka. This study also finds contentious themes raised by the key informants, specifically the role of INGOs, government and community.


Muhammad Asadullah
Muhammad Asadullah is Assistant Professor at the Department of Justice Studies, University of Regina, Canada.

Brenda Morrison
Brenda Morrison is Associate Professor at the School of Criminology, Simon Fraser University, Canada. Contact author: Muhammad.Asadullah@uregina.ca.

Stephan Parmentier
Stephan Parmentier is a Professor of Sociology of Law, Crime and Human Rights at the Faculty of Law, KU Leuven, Belgium. Contact author: stephan.parmentier@kuleuven.be.
Article

An exploration of trauma-informed practices in restorative justice: a phenomenological study

Journal The International Journal of Restorative Justice, Issue 2 2021
Keywords restorative justice, trauma, trauma-informed care, interpretative phenomenological analysis
Authors Claudia Christen-Schneider and Aaron Pycroft
AbstractAuthor's information

    While several studies identify trauma as a main risk factor for developing offending behaviour, the criminal justice system still largely ignores the problem, and the same seems to be true of restorative justice. This article offers a critical exploration of trauma-informed work with offenders using interpretative phenomenological analysis. The interviewees perceive a growing interest in the topic of trauma and trauma-informed care (TIC). However, they also identify several areas that seem to hinder a trauma-informed approach, not only with offenders but also with victims. One concern is the tendency to institutionalise restorative justice with an emphasis on efficiency, effectiveness and outcome orientation. The interviewees also perceive a revengeful and retributive attitude in their societies that does not condone restorative measures that seemingly favour offenders. This tendency appears even stronger in societies that have suffered from collaborative trauma and not recovered from it. Interviewees therefore advocate for raising awareness of trauma, the consequences of unhealed trauma and the need to work trauma-informed with all stakeholders, including offenders and the extended, affected community. They also appeal for increased training to be provided for practitioners in TIC and self-care as these areas seem essential to provide safe and beneficial processes for all stakeholders.


Claudia Christen-Schneider
Claudia Alexandra Christen-Schneider is president of the Swiss RJ Forum.

Aaron Pycroft
Aaron Pycroft PhD is Reader in Criminal Justice and Social Complexity at the University of Portsmouth, UK. Contact author: Claudia Alexandra Christen-Schneider at swissrjforum@gmail.com.

Claudia Mazzucato
Claudia Mazzucato is Associate Professor of Criminal Law at Università Cattolica del Sacro Cuore, Milan, Italy. Contact author: claudia.mazzucato@unicatt.it.
Article

Access_open The Resilience of Democracy in the Midst of the COVID-19 Pandemic

Democratic Compensators in Belgium, the Netherlands and France

Journal Politics of the Low Countries, Issue 2 2021
Keywords COVID-19, crisis-management, democratic compensators, exceptionalism
Authors Tom Massart, Thijs Vos, Clara Egger e.a.
AbstractAuthor's information

    Since January 2020, European countries have implemented a wide range of restrictions to contain the COVID-19 pandemic. Yet governments have also implemented democratic compensators in order to offset the negative impacts of restrictions. This article aims to account for the variation of their use between Belgium, the Netherlands and France. We analyse three drivers: the strength of counterpowers, the ruling parties’ ideological leanings and political support. Building on an original data set, our results distinguish between embedded and ad hoc compensators. We find that ad hoc compensators are championed mainly by counterpowers, but also by ideology of the ruling coalitions in Belgium and the Netherlands and used strategically to maintain political support in France. Evidence on the link between embedded compensators and counterpowers is more ambiguous.


Tom Massart
Tom Massart is a PhD candidate at ULB / CEVIPOL. His research mainly focuses on European economic governance.

Thijs Vos
Thijs Vos is a political scientist and research assistant at Groningen University.

Clara Egger
Clara Egger is assistant professor in international relations at Groningen University. She is currently leading the Exceptius project on Covid19 containment policies in Europe.

Claire Dupuy
Claire Dupuy is professor of comparative politics at UCLouvain. She specializes in comparative public policy with a focus on multilevel governance, federalism and regionalization processes.

Constance Morel-Jean
Constance Morel-Jean is a master’s student at Grenoble-Alpes University. She specialises in the study of political behaviour.

Raul Magni-Berton
Raul Magni-Berton is professor of political science at Grenoble-Alpes University, PACTE research unit. His research mainly focuses on democracy, its institutions and norms.

Sébastian Roché
Sebastian Roché is CNRS Research Professor at Grenoble-Alpes University, PACTE research unit. He specializes in policing and legitimacy studies.
Article

The Reform of Contract Rules in China’s New Civil Code

Successes or Pitfalls

Journal European Journal of Law Reform, Issue 2 2021
Keywords Civil Code of the People’s Republic of China, Contracts of the Civil Code, Chinese legal system, legislative history
Authors Peng Guo and Linxuan Li
AbstractAuthor's information

    The Civil Code of the People’s Republic of China (Civil Code) came into force on 1 January 2021. Book III on Contracts of the Civil Code has adopted significant changes compared to the old Chinese Contract Law (Contract Law). This article provides a comprehensive and systemic analysis of those changes from structure to content, from legislative technics to values underpinning the Civil Code. It evaluates all the factors in the context of the development of Chinese society, Chinese culture and Chinese legal system.
    This article first outlines the historical background of the development of the Contract Law and the Civil Code. It then moves on to compare the Civil Code and the Contract Law, highlighting the changes in structure, the incorporation of new provisions and the amendments to old provisions in light of contemporary Chinese society and culture. Finally, it argues that the Civil Code is a significant milestone in China’s legislative history; that it reflects the legislative experience and judicial practice in China; that it adds provisions which are innovative and of Chinese characteristics to meet the needs of China’s changing society and legal system; and that it keeps pace with the development of the global law reform and harmonization.


Peng Guo
Peng Guo is a Lecturer in Law, Graduate School of Business and Law, RMIT University, Australia.

Linxuan Li
Linxuan Li, LL.M. University of International Business and Economics, LL.B. Shandong University, China.
Article

Democratic Scrutiny of COVID-19 Laws

Are Parliamentary Committees Up to the Job?

Journal European Journal of Law Reform, Issue 2 2021
Keywords parliament, scrutiny, committees, COVID-19, rights, legislation, Australia, New Zealand, United Kingdom
Authors Sarah Moulds
AbstractAuthor's information

    In response to the complex and potentially devastating threat posed by COVID-19, parliaments around the world have transferred unprecedented powers to executive governments and their agencies (Edgar, ‘Law-making in a Crisis’, 2020), often with the full support of the communities they represent. These laws were passed within days, sometimes hours, with limited safeguards and a heavy reliance on sunsetting provisions, some of which are dependent on the pandemic being officially called to an end. While parliaments themselves have suspended or reduced sitting days (Twomey, ‘A Virtual Australian Parliament is Possible’, 2020), parliamentary committees have emerged as the forum of choice when it comes to providing some form of parliamentary oversight of executive action.
    This article aims to evaluate the capacity of parliamentary committees established within the Australian, New Zealand (NZ) and United Kingdom (UK) parliaments to effectively scrutinize and review governments’ responses to COVID-19. It does this by comparing the legal framework underpinning the relevant committees in each jurisdiction and examining the work of these committees with a view to offering some preliminary views as to their impact on the shape of the laws made in response to COVID-19 in those jurisdictions. The article concludes by offering some preliminary observations about the scrutiny capacity of the parliamentary committee systems in Australia, NZ and the UK in the context of emergency lawmaking and flags areas for further research, evaluation and reform.


Sarah Moulds
Dr. Sarah Moulds, University of South Australia.
Article

Consensual Accommodation of Sharia Law and Courts in Greece

Journal European Journal of Law Reform, Issue 2 2021
Keywords choice architecture, law reform, Molla Sali v. Greece, Mufti, multicultural accommodation, Muslim minority, nomoi group, Sharia law
Authors Nikos Koumoutzis
AbstractAuthor's information

    Having been exempted from a massive population exchange that took place between Greece and Turkey under the Treaty of Lausanne (1923), the Muslim minority of Western Thrace enjoys ever since a special status providing for the application of the Sharia law in family and succession matters, as well as the jurisdiction of the Mufti for the resolution of relevant disputes. A reform introduced by Law 4511/2018 marks a watershed moment in this long history. From now on, the Sharia law and the Mufti cease to be mandatory; their intervention requires the consent of the members of the minority, who also have the alternative to subject to the civil law and courts. This article tries to explore key features of the new model providing for an accommodation of the Muslim personal legal system based on choice. It focuses on the technique employed to structure the right of choice, on the proper ways for the exercise of choice, on the possibilities offered (or not) to make a partial choice only and revoke a previously made choice. In the end, a further question is raised, concerning how effective the right of choice may prove in the hands of women insiders, given that these are the most likely to experience pressure to demonstrate loyalty and not ignore the traditions and values – including the nomos – of their collective.


Nikos Koumoutzis
Nikos Koumoutzis is Associate Professor Law School at the University of Nicosia, ORCID ID: https://orcid.org/0000-0003-4362-2320
Article

Access_open Approach with Caution

Sunset Clauses as Safeguards of Democracy?

Journal European Journal of Law Reform, Issue 2 2021
Keywords emergency legislation, sunset clauses, post-legislative review, COVID-19
Authors Sean Molloy
AbstractAuthor's information

    In response to the COVID-19 pandemic, leaders across the globe scrambled to adopt emergency legislation. Amongst other things, these measures gave significant powers to governments in order to curb the spreading of a virus, which has shown itself to be both indiscriminate and deadly. Nevertheless, exceptional measures, however necessary in the short term, can have adverse consequences both on the enjoyment of human rights specifically and democracy more generally. Not only are liberties severely restricted and normal processes of democratic deliberation and accountability constrained but the duration of exceptional powers is also often unclear. One potentially ameliorating measure is the use of sunset clauses: dispositions that determine the expiry of a law or regulation within a predetermined period unless a review determines that there are reasons for extension. The article argues that without effective review processes, far from safeguarding rights and limiting state power, sunset clauses can be utilized to facilitate the transferring of emergency powers whilst failing to guarantee the very problems of normalized emergency they are included to prevent. Thus, sunset clauses and the review processes that attach to them should be approached with caution.


Sean Molloy
Dr Sean Molloy is a Lecturer in Law at Northumbria University.
Article

Corporate Mediation and Company Law

State of the Art, Recent Trends and New Opportunities

Journal Corporate Mediation Journal, Issue 1 2021
Keywords corporate dispute, enforcement, mediation clause, stakeholders, sustainability, sustainable development
Authors Valentina Allotti
AbstractAuthor's information

    This article describes the legal framework on corporate mediation in Italy with a particular focus on the effects of the mediation clauses included in company by-laws. The available data on the use of corporate mediation indicate that such clauses are not commonly used. There is still resistance among the parties in a dispute to engage in dialogue through mediation, not only where corporate disputes are concerned. The author suggests that one way to expand the use of mediation would be to promote the introduction of mediation clauses in the articles of association of companies. She also suggests that recent trends in company law, notably the emergence of sustainability issues, related to the impact of business activity on the environment and society, and more broadly on human rights, may create new opportunities for the use of mediation to prevent and solve corporate-related disputes.


Valentina Allotti
Valentina Allotti is a Senior Legal Policy Officer, Capital Markets and Listed Companies Area, Assonime. Views expressed by the author are her own and do not necessarily represent those of Assonime.
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).

Martin Brink
Martin Brink (Van Benthem & Keulen BV, advocaten en notariaat at Utrecht, The Netherlands), is Editor in Chief of this Journal.
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.
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