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Article

“What Does He Think This Is? The Court of Human Rights or the United Nations?”

(Plain) Language in the Written Memories of Arbitral Proceedings: A Cross-Cultural Case Study

Journal European Journal of Law Reform, Issue 3 2014
Keywords arbitration, legal language, plain language, specialised discourse, corpus linguistics
Authors Stefania Maria Maci
AbstractAuthor's information

    Arbitration as an alternative dispute resolution (ADR) is an extra-judicial process resolved privately outside an ordinary court of justice. As such, the award has the same legal effects as a judgment pronounced by a court judge. Arbitration can be preceded by a pre-trial process in which arbitrators try to reach a conciliation agreement between the parties. If an agreement is not reached, the arbitration process begins with the gathering of the parties’ memories. In both oral and written evidence, language is used argumentatively, and above all persuasively, by all sides or parties involved.
    Extensive studies in arbitration have been carried out from the viewpoint of law. From an applied linguistics angle, the study of interaction in legal contexts has recently been carried out with particular regard to witness testimony and cross-examination in international commercial arbitration within the processes of arbitral hearings and the writing of minutes.
    To the best of my knowledge, to date there has never been an investigation on plain language in arbitral memories across national and professional cultures. Therefore, by carrying out a comparative analysis of the written evidence presented in two arbitral processes, this paper tries to evaluate the degree of influence that different legal cultures may exert on the type of language used in written arbitration evidence. The main objective is to offer insights into some instances of arbitration proceedings and their development within their British and Italian contexts.


Stefania Maria Maci
Stefania M. Maci is Aggregate Professor of English Language and Translation at the University of Bergamo, where she teaches English linguistic courses at graduate and undergraduate level. She is member of CERLIS (Research Centre on Specialized Languages), CLAVIER (The Corpus and Language Variation in English Research Group), BAAL (British Association of Applied Linguistics), and AIA (Associazione Italiana di Anglistica).
Article

Shifting from Financial Jargon to Plain Language

Advantages and Problems in the European Retail Financial Market

Journal European Journal of Law Reform, Issue 3 2014
Keywords financial markets, financial information, PRIPs/KIIDs, financial jargon, plain language
Authors Francesco De Pascalis
AbstractAuthor's information

    The purpose of this paper is to discuss the European regulatory efforts to guarantee investors a proper understanding of the characteristics of the products being offered in the retail financial market. In particular, the analysis emphasises the proposal to introduce plain language as a mandatory requirement for drafting pre-contractual documents relating to retail financial products.
    The 2007-2009 financial crisis brought to attention the importance of providing investors with more information on financial products to help them make informed investment decisions. However, more disclosure alone is not enough. The quantity and quality of information to be disclosed must go hand in hand with the way the information is communicated.
    Plain language is seen as an adequate tool to make information more transparent and understandable to the average investor. However, to make plain language a valuable instrument, it is necessary to enhance the ability of those who have the responsibility to apply it, that is, the financial products’ issuers and distributors.
    This aspect deserves proper consideration; otherwise, the benefit of plain language will remain on paper.


Francesco De Pascalis
The author obtained an LLM degree in Banking and Finance Law at Queen Mary University of London in October 2010 and is admitted as a barrister to the Verona Bar Society. Currently, he is doctoral candidate at the Institute of Advanced Legal Studies, University of London.
Article

Making EU Legislation Clearer

Journal European Journal of Law Reform, Issue 3 2014
Keywords European Union, transparency, openness, clarity of legislation
Authors William Robinson
AbstractAuthor's information

    This article looks at the clarity of the legislation of the European Union (EU), in particular the clarity of the language used. It sketches out the basic EU rules on transparency and openness, past expressions of concern for clearer EU legislation, and the response of the institutions. Finally, it considers briefly some ways to make EU legislation clearer.


William Robinson
Associate Research Fellow at the Institute of Advanced Legal Studies, University of London, formerly coordinator in the Quality of Legislation Team of the European Commission Legal Service.
Article

Islamic Policy of Environmental Conservation

1,500 Years Old – Yet Thoroughly Modern

Journal European Journal of Law Reform, Issue 2 2014
Keywords environment, waqf (endowment), khalifa (steward), God's equilibrium, Arab Spring
Authors Mohamed A. ‘Arafa
AbstractAuthor's information

    Any legal system plays a significant role in the principle underlying its legal doctrines. The legal system works in compliance with, or as a consequence of cultural order. In other words, any legal system is restricted to a certain environment and subject to cultural impact. Culture and law operate in conjunction. Politics and economy are, among others, the main disciplines affecting that legal system including environmental laws and natural resources. The present article attempts a comparative analysis of three different legal systems and their approaches to environmental law, contributing to the extensive literature on this area of law in numerous areas of the world such as the United States, Europe, and the Middle East. However, that literature appears to have had little coverage of the treatment of environmental law in Islamic law, one of the three main global legal systems together with common and civil law. The bold spread of Islamic tendency in the Middle East that followed the so-called “Arab Spring” assures major changes in the political and economic sphere, including environmental and natural resource levels. Environmental threats are very pressing all over the world, as the Earth needs to be protected through the adoption of universally applicable legal rules and the right to a healthy environment needs to be elaborated on in international instruments. It is very significant to understand Islam's overall view of the universe to comprehend the gap between Islamic theories and practices in Muslim countries. The universe is full of diversified creatures that aim to fulfill man's needs and prove God's greatness. The Qur'an states: “Have you not seen that God is glorified by all in the heavens and on earth, such as birds with wings outspread? Each knows its worship and glorification, and God is aware of what they do.”All creatures in the universe perform two specific roles: a religious role of evidencing God's perfection and presence and a social role of serving man and other creatures. The final outcome is the solidarity of the universe and the realization of its common good (benefit).
    Man's position in the universe is premised on two principles: the stewardship of man which means that man is not only a creature but also God's khalifa (steward) on earth; God is the only proprietor of earth; and man is a mere beneficiary, and man can exploit nature for his/her and other creatures’ benefit without depleting it and the principle of trust that all natural resources created by God are placed as a trust in man's hand and needs of coming generations must be taken into consideration by man. Islamic environmental law uses a “duty paradigm” in the sphere of the right to healthy environment, as human beings must not destroy, deplete, or unwisely use natural resources but have an obligation to develop and enhance natural resources. Any disturbance of God's equilibrium in the universe is a transgression and athm (sin) against the divine system. Last but by no means least, Islamic law regards man as a creature with elevated status. In Islamic environmental law, the human is not the owner of nature, but a mere beneficiary. Islamic environmental safety is based upon the principle of “use” without “abuse”. Environmental protection under the Islamic legal scheme does not differ from any modern environmental legal system.


Mohamed A. ‘Arafa
Adjunct Professor of Islamic Law at Indiana University Robert H. McKinney School of Law (USA); Assistant Professor of Criminal Law and Criminal Justice at Alexandria University Faculty of Law (Egypt). SJD, Indiana University Robert H. McKinney School of Law (2013); LLM, University of Connecticut School of Law (2008); LLB, Alexandria University Faculty of Law (2006). Dr. ‘Arafa is a Visiting Professor of Business Law at the Arab Academy for Science, Technology, and Maritime Transport (‘College of Business Management’). Moreover, Professor ‘Arafa is a Domestic Public Mediator under Alternative Dispute Resolution, Indiana Rule ADR 25 (2012) and served as an Associate Trainee Attorney and Executive Attorney Assistant at ‘Arafa Law Firm (2007). Of course, all errors remain the author's.
Article

Human Rights in Islamic Law, Specifically the Guarantee of Procedural Justice

Journal European Journal of Law Reform, Issue 2 2014
Keywords Islamic law, procedural justice, human rights, rules of evidence, Cairo Declaration of Human Rights
Authors Mohamed Y. Mattar
AbstractAuthor's information

    International law guarantees several fundamental principles of procedural justice, such as presumption of innocence, the right against self-incrimination, the right to be tried without undue delay, the right to examine witnesses, and the right to legal assistance. In this article I examine whether Islamic law guarantees similar procedural protections and demonstrate how Islamic law provides for basic human rights as well as general principles that may serve as guidelines in procedural justice. These include the principle of non-retroactivity, the principle of personal accountability, the principle of no crime or punishment without law, the right to be presumed innocent until proven guilty, and the right to defence. The article also identifies rules of evidence provided by Islamic law which are designed to protect the accused.


Mohamed Y. Mattar
Mohamed Y. Mattar is a Senior Research Professor of International Law and the Executive Director of The Protection Project at The Johns Hopkins University School of Advanced International Studies (SAIS).
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