Search result: 37 articles

x
The search results will be filtered on:
Year 2013 x Category Article x
Article

Access_open A Turn to Legal Pluralism in Rule of Law Promotion?

Journal Erasmus Law Review, Issue 3/4 2013
Keywords legal pluralism, rule of law promotion, legal reform, customary law, non-state legal systems, donor policy
Authors Dr.mr Ronald Janse
AbstractAuthor's information

    Over the past 25 years, international organizations, NGOs and (mostly Western) states have spent considerable energy and resources on strengthening and reforming legal systems in developing countries. The results of these efforts have generally been disappointing, despite occasional successes. Among donors, one of most popular explanations of this failure in recent years is that rule of law promotion has wrongly focused almost exclusively on strengthening the formal legal system. Donors have therefore decided to 'engage' with informal justice systems. The turn to legal plu‍ra‍lism is to be welcomed for various reasons. But it is also surprising and worrisome. It is surprising because legal pluralism in developing countries was a fact of life before rule of law promotion began. What made donors pursuing legal reform blind to this reality for so long? It is worrisome because it is not self-evident that the factors which have contributed to such cognitive blindness have disappeared overnight. Are donors really ready to refocus their efforts on legal pluralism and 'engage' with informal justice systems? This paper, which is based on a review of the literature on donor engamenet with legal pluralism in so-called conflict affected and fragile states, is about these questions. It argues that 7 factors have been responsible for donor blindness regarding legal pluralism. It questions whether these factors have been addressed.


Dr.mr Ronald Janse
Ronald Janse is Associate Professor of Law, University of Amsterdam, The Netherlands.
Article

Access_open Unity in Multiplicity: Shared Cultural Understandings on Marital Life in a Damascus Catholic and Muslim Court

Journal Erasmus Law Review, Issue 3/4 2013
Keywords Syria, personal status law, Eastern Catholic law, patriarchal family, marital obligations
Authors Esther Van Eijk Ph.D.
AbstractAuthor's information

    Family relations in Syria are governed by a plurality of personal status laws and courts. This plurality manifests itself on a variety of levels, including statutory, communal and individual. In this article, the author argues that, albeit this plurality, Syrian personal status law is also characterised by the prevalence of shared, gendered norms and views on marital life. Based on fieldwork conducted in a Catholic and a shar’iyya personal status courts in Damascus in 2009, the author examines the shared cultural understandings on marital relationships that were found in these courts, and as laid down – most importantly – in the respective Catholic and Muslim family laws. The article maintains that the patriarchal family model is preserved and reinforced by the various personal status laws and by the various actors which operated in the field of personal status law. Finally, two Catholic case studies are presented and analysed to demonstrate the importance and attachment to patriarchal gender norms in the Catholic first instance court of Damascus.


Esther Van Eijk Ph.D.
Esther Van Eijk is a postdoc researcher at Maastricht University, The Netherlands. She recently defended (September 2013) her Ph.D. thesis entitled ‘Family Law in Syria: A Plurality of Laws, Norms, and Legal Practices’ at Leiden University, the Netherlands. This study is based on her PhD fieldwork (including interviews and participant observation) conducted in March-April 2008, and October 2008-July 2009 in Syria.
Article

Access_open At the Crossroads of National and European Union Law. Experiences of National Judges in a Multi-level Legal Order

Journal Erasmus Law Review, Issue 3/4 2013
Keywords national judges, legal pluralism, application of EU law, legal consciousness, supremacy and direct effect of EU law
Authors Urszula Jaremba Ph.D.
AbstractAuthor's information

    The notion and theory of legal pluralism have been witnessing an increasing interest on part of scholars. The theory that originates from the legal anthropological studies and is one of the major topical streams in the realm of socio-legal studies slowly but steady started to become a point of departure for other disciplines. Unavoidably it has also gained attention from the scholars in the realm of the law of the European Union. It is the aim of the present article to illustrate the legal reality in which the law of the Union and the national laws coexist and intertwine with each other and, subsequently, to provide some insight on the manner national judges personally construct their own understanding of this complex legal architecture and the problems they come across in that respect. In that sense, the present article not only illustrates the new, pluralistic legal environment that came into being with the founding of the Communities, later the European Union, but also adds another dimension to this by presenting selected, empirical data on how national judges in several Member States of the EU individually perceive, adapt to, experience and make sense of this reality of overlapping and intertwining legal orders. Thus, the principal aim of this article is to illustrate how the pluralistic legal system works in the mind of a national judge and to capture the more day-to-day legal reality by showing how the law works on the ground through the lived experiences of national judges.


Urszula Jaremba Ph.D.
Urszula Jaremba, PhD, assistant professor at the Department of European Union Law, School of Law, Erasmus University Rotterdam. I am grateful to the editors of this Special Issue: Prof. Dr. Sanne Taekema and Dr. Wibo van Rossum as well as to the two anonymous reviewers for their useful comments. I am also indebted to Dr. Tobias Nowak for giving me his consent to use the data concerning the Dutch and German judges in this article. This article is mostly based on a doctoral research project that resulted in a doctoral manuscript titled ‘Polish Civil Judges as European Union Law Judges: Knowledge, Experiences and Attitudes’, defended on the 5th of October 2012.

Catherine Barnard
Catherine Barnard, MA (Cantab), L.LM. (EUI), Ph.D. (Cantab), is a Professor in European Union and Employment Law at the University of Cambridge and a fellow of Trinity College. She specialises in EU law, employment law and discrimination law. She is co-director of the Centre for European Legal Studies at Cambridge, and the author of EU Employment Law (4th edn) OUP, Oxford, 2012 and The Substantive Law of the EU: The Four Freedoms (4th edn.), OUP, Oxford, 2013.
Article

Regulating Local Border Traffic in the European Union

Salient Features of Intersecting Legal Orders (EU Law, International Law, Hungarian Law) in the Shomodi Case (C-254/11)

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2013
Authors Tamás Molnár
Author's information

Tamás Molnár
Ministry of Interior, Department of EU Cooperation, Unit for Migration, Asylum and Border Management, head of unit, Corvinus University of Budapest, Institute of International Studies, adjunct professor.

Adrienne Komanovics
LL.M, Ph.D, works at the Department of Public International and European Law of the Faculty of Law, University of Pécs. Her main research fields include the public law aspects of the European Union, democracy in the European Union,the protection of human rights at the universal level and in the framework of European organizations, UN human rights treaty monitoring.

Imola Schiffner
Senior Lecturer in the Department of International and European Law of the Faculty of Law and Political Sciences at the University of Szeged. She received her Ph.D. in 2010 in international public law, on the topic of Diplomatic Protection.

Tamas Vince Ádány
Ph.D., senior lecturer in international law, Peter Pazmany Catholic University, Budapest.

Jan Klabbers
Professor of International Law at the University of Helsinki, and currently (spring 2013) a Visiting professor at the Graduate Institute of International and Development Studies in Geneva.

Petra Lea Láncos
Adjunct professor at the Pázmány Péter Catholic University of Budapest, Faculty of Law at the Department for European Law. She is also member of the secretariat of the Hungarian Deputy Commissioner for the Protection of the Interests of Future Generations (“Green Ombudsman”).

    This article seeks to critically analyse the European Commission's Proposal for a Council Regulation on jurisdiction, applicable law and recognition and enforcement of decisions in matters of matrimonial property regimes (COM (2011) 126). It focuses upon the coordination of the Proposal's provisions on jurisdiction and applicable law with the parallel provisions contained in other related EU private international law instruments, namely those relating to divorce (Brussels II bis and Rome III) and succession (Succession Regulation). In doing so, the article adopts a 'stress-test' approach, presenting scenarios in which interaction between these related instruments takes place. The compositions and circumstances of the fictitious couples in these scenarios are varied in order to fully illustrate the potential consequences of the interplay between the instruments. This article seeks to assess the extent to which (in)consistency exists between the current and proposed EU private international instruments and, by evaluating this interaction through a number of norms, how identified inconsistencies impact upon international couples' legal relationships. In order to ensure the analysis remains as up to date as possible, the article will also take into account relevant changes introduced in the latest revised versions of the Proposal.


Jacqueline Gray LL.M.
Jacqueline Gray studied law at the University of Glasgow (2006-2010) and European law at the Leiden University (2010-2011). Following this, she undertook a four-month internship at the Molengraaff Institute for Private Law and five-month traineeship at the European Parliament in Brussels. She is now a PhD student at the Molengraaff Institute for Private Law, where she is writing her dissertation on party autonomy in the EU private international law relating to family matters and succession.

Pablo Quinzá Redondo LL.M.
Pablo Quinzá Redondo, a research scholar funded by the Spanish Ministry of Education, Culture and Sport, is currently undertaking a PhD at the University of Valencia. His specialisation concerns 'The europeanisation of matrimonial property regimes from a substantive and private international law perspective'. Prior to commencing his PhD, he completed undergraduate degrees in both Law and Administration and Business management (2004- 2010), as well as a Master’s degree in Company Law (2010-2012), at the University of Valencia.
Article

Access_open Towards Context-Specific Directors' Duties and Enforcement Mechanisms in the Banking Sector?

Journal Erasmus Law Review, Issue 2 2013
Keywords banking sector, directors' duties, financial crisis, context-specific doctrines, public enforcement
Authors Wasima Khan LL.M.
AbstractAuthor's information

    The global financial crisis gives reason to revisit the debate on directors’ duties in corporate law, mainly with regard to the context of banks. This article explores the need, rationale and the potential for the introduction of context-specific directors’ duties and enforcement mechanisms in the banking sector in the Netherlands from a comparative perspective.
    Chiefly, two legal strategies can be derived from the post-crisis developments and calls for legal reforms for the need and rationale to sharpen directors’ duties in the context of the banking sector in order to meet societal demands. The two strategies consist in shifting the scope of directors’ duties (i) towards clients’ interests and (ii) towards the public interest.
    Subsequently, this article explores the potential for context-specific directors’ duties and accompanying enforcement mechanisms. Firstly, it is argued that the current legal framework allows for the judicial development -specific approach. Secondly, such context-specific directors’ duties should be enforced through public-enforcement mechanisms to enhance the accountability of bank directors towards the public interest but currently there are too much barriers for implementation in practice.
    In conclusion, this article argues that there is indeed a need, rationale and potential for context-specific directors’ duties; yet there are several major obstacles for the implementation of accompanying public-enforcement mechanisms. As a result, the introduction of context-specific directors’ duties in the banking sector may as yet entail nothing more than wishful thinking because it will merely end in toothless ambitions if the lack of accompanying enforcement mechanisms remains intact.


Wasima Khan LL.M.
PhD Candidate at the Erasmus School of Law, Erasmus University Rotterdam. The author wishes to express her gratitude for valuable comments on an earlier draft of this article from Prof. Vino Timmerman and Prof. Bastiaan F. Assink at the Erasmus School of Law, Erasmus University Rotterdam, as well as the Journal‘s editors and peer reviewers. Any errors remain those of the author.
Article

Access_open An Eclectic Approach to Loyalty-Promoting Instruments in Corporate Law: Revisiting Hirschman's Model of Exit, Voice, and Loyalty

Journal Erasmus Law Review, Issue 2 2013
Keywords Eclecticism, corporate law & economics, corporate constitutionalism, loyalty-promoting instruments
Authors Bart Bootsma MSc LLM
AbstractAuthor's information

    This essay analyses the shareholder role in corporate governance in terms of Albert Hirschman's Exit, Voice, and Loyalty. The term 'exit' is embedded in a law & economics framework, while 'voice' relates to a corporate constitutional framework. The essay takes an eclectic approach and argues that, in order to understand the shareholder role in its full breadth and depth, the corporate law & economics framework can 'share the analytical stage' with a corporate constitutional framework. It is argued that Hirschman's concept of 'loyalty' is the connecting link between the corporate law & economics and corporate constitutional framework. Corporate law is perceived as a Janus head, as it is influenced by corporate law & economics as well as by corporate constitutional considerations. In the discussion on the shareholder role in public corporations, it is debated whether corporate law should facilitate loyalty-promoting instruments, such as loyalty dividend and loyalty warrants. In this essay, these instruments are analysed based on the eclectic approach. It is argued that loyalty dividend and warrants are law & economics instruments (i.e. financial incentives) based on corporate constitutional motives (i.e. promoting loyalty in order to change the exit/voice mix in favour of voice).


Bart Bootsma MSc LLM
PhD candidate in the corporate law department at Erasmus School of Law, Erasmus University Rotterdam. Email: bootsma@law.eur.nl. The research for this article has been supported by a grant from the Netherlands Organisation for Scientific Research (NWO) in the Open Competition in the Social Sciences 2010. The author is grateful to Ellen Hey, Klaus Heine, Michael Faure, Matthijs de Jongh and two anonymous reviewers for their constructive comments and suggestions. The usual disclaimer applies.
Article

Access_open Offer and Acceptance and the Dynamics of Negotiations: Arguments for Contract Theory from Negotiation Studies

Journal Erasmus Law Review, Issue 2 2013
Keywords Contract Formation, Offer and Acceptance, Negotiation, Precontractual, UNIDROIT Principles of International Commercial Contracts
Authors Ekaterina Pannebakker LL.M.
AbstractAuthor's information

    The doctrine of offer and acceptance forms the basis of the rules of contract formation in most western legal systems. However, if parties enter into elaborate negotiations, these rules may become difficult to apply. This paper addresses the application of the doctrine of offer and acceptance to the formation of contract in the context of negotiations. The paper argues that while the doctrine of offer and acceptance is designed to assess the issues related to the substance of the future eventual contract (the substantive constituent of negotiations), these issues overlap within the context of negotiations with the strategic and tactical behaviour of the negotiators (dynamic constituent of negotiations). Analysis of these two constituents can be found in negotiation studies, a field which has developed over the last decades. Using the rules of offer and acceptance of the UNIDROIT Principles of International Commercial Contracts as an example, this paper shows that the demarcation between the substantive and the dynamic constituents of negotiations can be used as the criterion to distinguish between, on the one hand, the documents and conduct forming a contract, and, on the other hand, other precontractual documents and conduct. Furthermore, the paper discusses the possibility of using the structure of negotiation described by negotiation studies as an additional tool in the usual analysis of facts in order to assess the existence of a contract and the moment of contract formation.


Ekaterina Pannebakker LL.M.
PhD candidate, Erasmus School of Law, Erasmus University Rotterdam. I thank Sanne Taekema and Xandra Kramer for their valuable comments on the draft of this article, and the peer reviewers for their suggestions. The usual disclaimer applies.

M.J. Stanford
Immediate past Deputy Secretary-General, International Institute for the Unification of Private Law (Unidroit).
Article

Report of the Symposium

Journal International Institute of Space Law, Issue 9 2013
Authors Iris Froukje Regtien and Aurora Viergever
Author's information

Iris Froukje Regtien
LLB, Leiden University.

Aurora Viergever
LLM (adv), Leiden University.

Annette Froehlich
LL.M., MAS, European Space Policy Institute (ESPI), Schwarzenbergplatz 6, annette. froehlich@espi.or.at, A-1030 Vienna, Austria.

Yuri Takaya-Umehara
Any views in this article pertain to the first author only. Kobe University, Japan, yuritakaya_japan@hotmail.com.

Seiji Matsuda
IHI Aerospace Co, Ltd., Japan, matsuda-s@iac.ihi.co.jp.

Takayoshi Fuji
Japan Space Systems, Japan, fuji-takayoshi@jspacesystems.or.jp.

Mitsuteru Kaneoka
CSP Japan, Inc., Japan, kaneoka@csp.co.jp.

Jan Wouters
Leuven Centre for Global Governance Studies, KU Leuven, Belgium, Jan.Wouters@ ggs.kuleuven.be.

Rik Hansen
Leuven Centre for Global Governance Studies, KU Leuven, Belgium, Rik.Hansen@ ggs.kuleuven.be.
Showing 1 - 20 of 37 results
« 1
You can search full text for articles by entering your search term in the search field. If you click the search button the search results will be shown on a fresh page where the search results can be narrowed down by category or year.