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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

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.
Article

Comments and Content from Virtual International Online Dispute Resolution Forum

1-2 March 2021, Hosted by the National Center for Technology and Dispute Resolution (NCTDR)

Journal International Journal of Online Dispute Resolution, Issue 1 2021
Authors David Allen Larson, Noam Ebner, Jan Martinez e.a.
Abstract

    For the past 20 years, NCTDR has hosted a series of ODR Forums in locations around the world. For 2021, the Forum was held virtually, with live presentation over a web video platform, and recorded presentations available to participants. A full recording of the sessions can be found through http://odr.info/2021-virtual-odr-forum-now-live/. The following items are narrative notes from some of the presentations:

    • David Allen Larson – ODR Accessibility

    • Noam Ebner – Human Touch

    • Jan Martinez & Amy Schmitz – ODR and Innovation

    • Frank Fowlie – Online Sport Dispute Resolution

    • Larry Bridgesmith – AI Introductory Notes

    • Julie Sobowale – AI and Systemic Bias

    • Clare Fowler – DEODRISE

    • Michael Wolf – ODR 2.0 System Design

    • Chris Draper – Algorithmic ODR

    • Zbynek Loebl – Open ODR


David Allen Larson

Noam Ebner

Jan Martinez

Amy Schmitz

Frank Fowlie

Larry Bridgesmith

Julie Sobowale

Clare Fowler

Michael Wolf

Chris Draper

Zbynek Loebl
Article

Access_open A future agenda for environmental restorative justice?

Journal The International Journal of Restorative Justice, Issue 1 2021
Keywords restorative justice, restorative practice, environmental justice, environmental regulation
Authors Miranda Forsyth, Deborah Cleland, Felicity Tepper e.a.
AbstractAuthor's information

    The challenges of developing meaningful environmental regulation to protect communities and the environment have never been greater. Environmental regulators are regularly criticised for failing to act hard and consistently, in turn leading to demands for harsher punishments and more rigorous enforcement. Whilst acknowledging the need for strong enforcement to address wantonly destructive practices threatening communities and ecosystems, we argue that restorative approaches have an important role. This article explores a future agenda for environmental restorative justice through (1) situating it within existing scholarly and practice-based environmental regulation traditions; (2) identifying key elements and (3) raising particular theoretical and practical challenges. Overall, our vision for environmental restorative justice is that its practices can permeate the entire regulatory spectrum, going far beyond restorative justice conferences within enforcement proceedings. We see it as a shared and inclusive vision that seeks to integrate, hybridise and build broader ownership for environmental restorative justice throughout existing regulatory practices and institutions, rather than creating parallel structures or paradigms.


Miranda Forsyth
Miranda Forsyth is Associate Professor at the School of Regulation and Governance in the College of Asia and Pacific in the Australian National University, Australia.

Deborah Cleland
Deborah Cleland is a Postdoctoral Fellow at the School of Regulation and Governance in the College of Asia and Pacific in the Australian National University, Australia.

Felicity Tepper
Felicity Tepper is a Senior Research Officer at the School of Regulation and Governance in the College of Asia and Pacific in the Australian National University, Australia.

Deborah Hollingworth
Deborah Hollingworth is a Principal Solicitor at the Environment Protection Authority Victoria, Australia.

Milena Soares
Milena Soares is a public servant at the Técnica de Desenvolvimento e Administração,Brazil.

Alistair Nairn
Alistair Nairn is Senior Engagement Advisor at the Environment Protection Authority Victoria, Australia.

Cathy Wilkinson
Cathy Wilkinson is Professor of Practice at Monash Sustainable Development, Australia. Contact author: miranda.forsyth@anu.edu.au.
Article

Imagining a community that includes non-human beings

The 1990s Moyainaoshi Movement in Minamata, Japan

Journal The International Journal of Restorative Justice, Issue 1 2021
Keywords restorative justice, community, environmental damage, spirituality, Japan, the Moyainaoshi Movement
Authors Orika Komatsubara
AbstractAuthor's information

    This article offers a vision of a community that includes non-human beings. After suffering environmental damage, a community is often harmed and confused. Restorative justice may have the potential to intervene in divisions with a community approach. However, though environmental damage affects both human and non-human beings, restorative justice typically concerns itself with human communities. Therefore, through a review of the literature I consider what non-human beings mean for a community, focusing on the Moyainaoshi Movement (MM) in Minamata, Japan, in the 1990s. This movement aimed to reconstruct the community after severe, long-term pollution. First, I examine the motivations of several stakeholders that worked to reconstruct the Minamata community in the 1990s. Second, I clarify the role of non-human beings in the vision of community as practiced by the MM. I find that non-human beings served as symbols to connect human beings within the community. Finally, I conclude that a vision of a community that includes non-human beings can propel community reconstruction in our current political realities, and I reveal that in studying this concept of community in restorative justice, listening to victims’ voices is of paramount importance.


Orika Komatsubara
Orika Komatsubara is working under a Research Fellowship for Young Scientists from the Japan Society for the Promotion of Science (JSPS). This study was supported by Grant Number 20J00091. Contact author: orika1982@gmail.com.
Article

The Mediation Disruption

A Path to Better Conflict Resolution through Interdisciplinarity and Cognitive Diversity

Journal Corporate Mediation Journal, Issue 2 2020
Keywords interdisciplinarity, social psychology, diversity and inclusivity, disruption
Authors Mark T. Kawakami
AbstractAuthor's information

    As the COVID-19 pandemic continues to expose obsolete business practices and force companies into uncharted territories, a disruption worth (re)considering for companies is to replace their over-reliance on litigation with mediation. In order for mediators to make this transition more appetising for businesses, we must train mediators to: 1) think more holistically through interdisciplinary training; and 2) foster cognitive diversity amongst our pool.


Mark T. Kawakami
Mark T. Kawakami is Assistant Professor of Private Law at the Faculty of Law, Maastricht University.
Article

Access_open Alternative Dispute Resolution in the Digital Sector

A Dejurisdictionalization Process?

Journal International Journal of Online Dispute Resolution, Issue 2 2020
Keywords European legislation, Alternative Dispute Resolution, civil procedure
Authors Rebecca Berto
AbstractAuthor's information

    Alternative Dispute Resolution (=ADR) is a generic reference to consensus-based processes that provide an alternative to litigation and to binding arbitration procedures. Analysing European provisions, the European legislator pushes Alternative Dispute Resolution methods as a means of resolving not only consumer-to-business disputes but also business-to-business. This may determine over the long term a sort of ‘dejurisdictionalization’ process, moving disputes from tribunals to Alternative Dispute Resolution methods. Procedural rights, however, such as raising interpretative questions to the European Court of Justice, may only be exercised before a court.
    Therefore, Alternative Dispute Resolution and national civil procedure are separated by a sort of procedural ‘Chinese wall’: this legislator’s forma mentis, repeated also in more recent directives, hinders the development of cross-border procedural provisions capable of tackling the legal and procedural questions posed by communication services and new technologies, such as blockchain, whose technical features are not limited by geographical boundaries.
    This article argues that, in the light of technological advancements, the European internal market needs new common procedural legislation fit for the cross-border economic and legal relationships carried out within it.


Rebecca Berto
Rebecca Berto is a lawyer with ECC-Italy: d.jur. University of Padua, Pg. Dipl. International Dispute Resolution (Arbitration) Queen Mary University – London, admitted to the Italian Bar. The views expressed herein are solely the author’s and represent neither that of ECC Italy nor of its host structures or any other of its public financiers. All opinions and errors are of the author. The author did not receive private or public funds for this article.
Article

Access_open The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000: Proposals for Legislative Reform to Promote Equality through Schools and the Education System

Journal Erasmus Law Review, Issue 3 2020
Keywords Transformative pedagogy, equality legislation, promotion of equality, law reform, using law to change hearts and minds
Authors Anton Kok, Lwando Xaso, Annalize Steenekamp e.a.
AbstractAuthor's information

    In this article, we focus on how the education system can be used to promote equality in the context of changing people’s hearts and minds – values, morals and mindsets. The duties contained in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (‘Equality Act’) bind private and public schools, educators, learners, governing bodies and the state. The Equality Act calls on the state and all persons to promote substantive equality, but the relevant sections in the Equality Act have not been given effect yet, and are therefore currently not enforceable. We set out how the duty to promote equality should be concretised in the Equality Act to inter alia use the education system to promote equality in schools; in other words, how should an enforceable duty to promote equality in schools be fashioned in terms of the Equality Act. Should the relevant sections relating to the promotion of equality come into effect in their current form, enforcement of the promotion of equality will take the form of obliging schools to draft action plans and submit these to the South African Human Rights Commission. We deem this approach inadequate and therefore propose certain amendments to the Equality Act to allow for a more sensible monitoring of schools’ duty to promote equality. We explain how the duty to promote equality should then play out practically in the classroom to facilitate a change in learners’ hearts and minds.


Anton Kok
Anton Kok is Professor of Jurisprudence at the Faculty of Law of the University of Pretoria.

Lwando Xaso
Lwando Xaso is an independent lawyer, writer and historian.

Annalize Steenekamp
Annalize Steenekamp, LLM, is a Multidisciplinary Human Rights graduate from the University of Pretoria.

Michelle Oelofse
Michelle Oelofse is an Academic associate and LLM candidate at the University of Pretoria.
Article

The Elusive Quest for Digital Exhaustion in the US and the EU

The CJEU’s Tom Kabinet Ruling a Milestone or Millstone for Legal Evolution?

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords digital exhaustion, Tom Kabinet, UsedSoft, ReDigi, copyright law
Authors Shubha Ghosh and Péter Mezei
AbstractAuthor's information

    The CJEU published its much-awaited preliminary ruling in Case C-263/18 - Nederlands Uitgeversverbond and Groep Algemene Uitgevers (the Tom Kabinet case) in December 2019. Our paper aims to introduce the Tom Kabinet ruling and discuss its direct and indirect consequences in copyright law. The Tom Kabinet ruling has seriously limited (in fact, outruled) the resale of lawfully acquired e-books. It left various questions unanswered, and thus missed the opportunity to provide for clarity and consistency in digital copyright law. Our analysis addresses how the CJEU deferred from its own logic developed in the UsedSoft decision on the resale of lawfully acquired computer programs, and how the CJEU’s conservative approach ultimately missed the opportunity to reach a compromise ruling. The paper further introduces the US approach that has a strong distinction between selling and making with respect to the research of exhaustion. We aim to trace how this distinction rests on the statutory basis for exhaustion (in copyright) and common law basis (in patent and trademark law) and compare these findings with the CJEU’s recent interpretation of exhaustion. Our focus will be on the Supreme Court’s decisions in Kirstaeng and Bowman and lower court decisions that examine technological solutions to facilitate resale. We examine how the US approach adopts a rigid approach that might inhibit technological development in digital markets, an approach with parallels in the Tom Kabinet ruling. In conclusion, we assess whether there is convergence between the two sides of the Atlantic or whether there is a path of innovative legal development that reconciles the various precedents.


Shubha Ghosh
Shubha Ghosh: Crandall Melvin professor of law, Syracuse University, US.

Péter Mezei
Péter Mezei: associate professor of law, University of Szeged; adjunct professor (dosentti), University of Turku, Finland.
Article

The Impact of the Achmea Ruling on Intra-EU BIT Investment Arbitration

A Hungarian Perspective

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords Achmea, Intra-EU BIT, investment arbitration, investment protection, Hungary
Authors Veronika Korom
AbstractAuthor's information

    The Achmea judgment of the CJEU brought the worlds of EU law and investment arbitration on a collision course. The judgment sent shockwaves through the EU investment arbitration community, which feared that Achmea would be the death knell of intra-EU BIT arbitration. In the years since Achmea, however, arbitral tribunals, ad hoc committees and national courts have found ways around Achmea, effectively eliminating its practical impact on intra-EU investment disputes. On 5 May 2020, the majority of EU Member States adopted a multilateral agreement that seeks to terminate intra-EU BITs and provides for a transitional regime for pending arbitrations in order to give effect to Achmea. This agreement, once ratified, will mark the end of intra-EU BIT arbitration in the future, although its impact on pending proceedings remains unclear. With its 22 intra-EU BITs and several arbitration proceedings pending under these treaties, Hungary has relied heavily (albeit unsuccessfully thus far) on Achmea in recent years as part of its defense strategy. The final termination of intra-EU BITs will be a win for Hungary in the short term, as no new investment arbitrations can be pursued by EU investors against Hungary. In the long term, however, the termination of intra-EU BITs will leave Hungarian companies who invest in the EU without sound legal protection and may even adversely impact Hungary’s standing as an attractive place for EU investment.


Veronika Korom
Veronika Korom: assistant professor of law, ESSEC Business School.
Article

Access_open Basel IV Postponed: A Chance to Regulate Shadow Banking?

Journal Erasmus Law Review, Issue 2 2020
Keywords Basel Accords, EU Law, shadow banking, financial stability, prudential regulation
Authors Katarzyna Parchimowicz and Ross Spence
AbstractAuthor's information

    In the aftermath of the 2007 global financial crisis, regulators have agreed a substantial tightening of prudential regulation for banks operating in the traditional banking sector (TBS). The TBS is stringently regulated under the Basel Accords to moderate financial stability and to minimise risk to government and taxpayers. While prudential regulation is important from a financial stability perspective, the flipside is that the Basel Accords only apply to the TBS, they do not regulate the shadow banking sector (SBS). While it is not disputed that the SBS provides numerous benefits given the net credit growth of the economy since the global financial crisis has come from the SBS rather than traditional banking channels, the SBS also poses many risks. Therefore, the fact that the SBS is not subject to prudential regulation is a cause of serious systemic concern. The introduction of Basel IV, which compliments Basel III, seeks to complete the Basel framework on prudential banking regulation. On the example of this set of standards and its potential negative consequences for the TBS, this paper aims to visualise the incentives for TBS institutions to move some of their activities into the SBS, and thus stress the need for more comprehensive regulation of the SBS. Current coronavirus crisis forced Basel Committee to postpone implementation of the Basel IV rules – this could be perceived as a chance to complete the financial regulatory framework and address the SBS as well.


Katarzyna Parchimowicz
Katarzyna Parchimowicz, LLM. Finance (Frankfurt), is PhD candidate at the University of Wrocław, Poland, and Young Researcher at the European Banking Institute, Frankfurt, Germany.

Ross Spence
Ross Spence, EURO-CEFG, is PhD Fellow at Leiden University Law School, and Young Researcher at the European Banking Institute and Research Associate at the Amsterdam Centre for Law and Economics.
Article

Access_open Changes in the Medical Device’s Regulatory Framework and Its Impact on the Medical Device’s Industry: From the Medical Device Directives to the Medical Device Regulations

Journal Erasmus Law Review, Issue 2 2019
Keywords Medical Device Directive, Medical Device Regulation, regulatory, European Union, reform, innovation, SPCs, policy
Authors Magali Contardi
AbstractAuthor's information

    Similar to pharmaceutical products, medical devices play an increasingly important role in healthcare worldwide by contributing substantially to the prevention, diagnosis and treatment of diseases. From the patent law perspective both, pharmaceutical products and a medical apparatus, product or device can be patented if they meet the patentability requirements, which are novelty, inventiveness and entail industrial applicability. However, regulatory issues also impact on the whole cycle of the innovation. At a European level, enhancing competitiveness while ensuring public health and safety is one of the key objectives of the European Commission. This article undertakes literature review of the current and incoming regulatory framework governing medical devices with the aim of highlighting how these major changes would affect the industry at issue. The analysis is made in the framework of an on-going research work aimed to determine whether SPCs are needed for promoting innovation in the medical devices industry. A thorough analysis the aforementioned factors affecting medical device’s industry will allow the policymakers to understand the root cause of any optimal patent term and find appropriate solutions.


Magali Contardi
PhD candidate; Avvocato (Italian Attorney at Law).
Article

Access_open Text and Data Mining in the EU ‘Acquis Communautaire’ Tinkering with TDM & Digital Legal Deposit

Journal Erasmus Law Review, Issue 2 2019
Keywords Web harvesting, data analysis, text & data mining, TDM, computational text
Authors Maria Bottis, Marinos Papadopoulos, Christos Zampakolas e.a.
AbstractAuthor's information

    Text and Data Mining (hereinafter, TDM) issue for the purpose of scientific research or for any other purpose which is included in the provisions of the new EU Directive on Copyright in the Digital Single Market (hereinafter, DSM). TDM is a term that includes Web harvesting and Web Archiving activities. Web harvesting and archiving pertains to the processes of collecting from the web and archiving of works that reside on the Web. In the following analysis we will elaborate briefly upon provisions in EU Copyright law which were discussed during the proposal for a new Directive on Copyright in the DSM as well as provisions which are included in the text of art.3 and art.4 of the new Directive 2019/790/EU per TDM. In addition, the following analysis presents legislation in very few EU Member States which pertains to TDM and preceded the rulings of Directive 2019/790/EU. Digital legal deposit remarkable examples from EU Member States are also presented in this paper. The example of Australia is also presented below hereto because it is one of the oldest and most successful worldwide. The National Library of Australia’s digital legal deposit is state-of-the-art.


Maria Bottis
Associate Professor, Department of Archives, Library Science and Museology, Ionian University, Corfu, Greece.

Marinos Papadopoulos
Attorney-at-Law, PhD, MSc, JD, Independent Researcher, Athens, Greece.

Christos Zampakolas
Archivist/Librarian, PhD, MA, BA, Independent Researcher, Ioannina, Greece.

Paraskevi Ganatsiou
Educator, MA, BA, Coordinator of Educational Projects in the Prefecture of Ionian Islands, Corfu, Greece.

    This article relies on the premise that to understand the significance of Open Access Repositories (OARs) it is necessary to know the context of the debate. Therefore, it is necessary to trace the historical development of the concept of copyright as a property right. The continued relevance of the rationales for copyright interests, both philosophical and pragmatic, will be assessed against the contemporary times of digital publishing. It follows then discussion about the rise of Open Access (OA) practice and its impact on conventional publishing methods. The present article argues about the proper equilibrium between self-interest and social good. In other words, there is a need to find a tool in order to balance individuals’ interests and common will. Therefore, there is examination of the concept of property that interrelates justice (Plato), private ownership (Aristotle), labour (Locke), growth of personality (Hegel) and a bundle of rights that constitute legal relations (Hohfeld). This examination sets the context for the argument.


Nikos Koutras
Postdoctoral Researcher, Faculty of Law, University of Antwerp.
Article

The New Regulation Governing AIR, VIR and Consultation

A Further Step Forward Towards ‘Better Regulation’ in Italy

Journal European Journal of Law Reform, Issue 4 2019
Keywords regulation, RIA, regulatory impact analysis, impact assessment, evaluation, consultation
Authors Victor Chimienti
AbstractAuthor's information

    This article describes the scope and contents of the newly adopted regulation governing regulatory impact analysis (RIA) and ex post evaluation of regulation (ExPER) in the Italian legal system. The article shows that this regulation has the potential to improve regulatory governance in Italy. Not only does it introduce innovations designed to increase transparency and participation, especially through strengthened consultation and communication mechanisms, but it also aims to improve the quality and effectiveness of regulatory analysis and evaluation activities. How the new regulation will be applied in practice, however, remains to be seen. In the meantime, the new set of rules are a welcome addition to Italy’s Better Regulation policy.


Victor Chimienti
Victor Chimienti is an international and EU lawyer currently working as a free-lance consultant on donor funded projects. In 1997, he graduated in Law with full marks at the University of Bari “Aldo Moro” (Italy), and, in 2006, obtained his Ph.D in International and EU Law from the same university. Meanwhile, he had attended post-graduate legal studies at LUISS University in Rome, Italy, specialising in international and EC business law. Dr. Chimienti has also served as Lecturer in International and Trade Law at the University of Foggia, Italy, and as Research Scholar in International & Comparative Law at the University of Michigan, USA. Among others, he specialises in Better Regulation tools and procedures, such as Regulatory Impact Analysis (RIA), Ex-Post Evaluation of Legislation, Monitoring, and Public Consultation.
Article

Access_open Mercosur: Limits of Regional Integration

Journal Erasmus Law Review, Issue 3 2019
Keywords Mercosur, European Union, regionalism, integration, international organisation
Authors Ricardo Caichiolo
AbstractAuthor's information

    This study is focused on the evaluation of successes and failures of the Common Market of the South (Mercosur). This analysis of Mercosur’s integration seeks to identify the reasons why the bloc has stagnated in an incomplete customs union condition, although it was originally created to achieve a common market status. To understand the evolution of Mercosur, the study offers some thoughts about the role of the European Union (EU) as a model for regional integration. Although an EU-style integration has served as a model, it does not necessarily set the standards by which integration can be measured as we analyse other integration efforts. However, the case of Mercosur is emblematic: during its initial years, Mercosur specifically received EU technical assistance to promote integration according to EU-style integration. Its main original goal was to become a common market, but so far, almost thirty years after its creation, it remains an imperfect customs union.
    The article demonstrates the extent to which almost thirty years of integration in South America could be considered a failure, which would be one more in a list of previous attempts of integration in Latin America, since the 1960s. Whether it is a failure or not, it is impossible to envisage EU-style economic and political integration in South America in the foreseeable future. So far, member states, including Brazil, which could supposedly become the engine of economic and political integration in South America, have remained sceptical about the possibility of integrating further politically and economically. As member states suffer political and economic turmoil, they have concentrated on domestic recovery before being able to dedicate sufficient time and energy to being at the forefront of integration.


Ricardo Caichiolo
Ricardo Caichiolo, PhD (Université catholique de Louvain, Belgium) is legal and legislative adviser to the Brazilian Senate and professor and coordinator of the post graduate programs on Public Policy, Government Relations and Law at Ibmec (Instituto Brasileiro de Mercado de Capitais, Brazil).
Article

The International Trading System and Market Distortions

Revisiting the Need for Competition Rules within the WTO

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords cross-border business activities, developing countries, multilateral competition rules, trade and competition, WTO
Authors Franziska Sucker
AbstractAuthor's information

    As a result of the interconnectedness of the global economy, cross-border activities of economic operators are soaring. Their business practices are not governed by multilateral rules, but merely, if at all, by regional or national laws. As a result, they are potentially subject to over- or under-enforcement and -regulation or to conflicting rules. The resultant legal uncertainties and, therefore, potential lack of discipline for practices facilitates the development of dominant positions and anticompetitive behavior. This advances market distortions to the detriment of diverse offerings and the competitiveness of small market players, especially in economically weak developed countries. Such unfavorable developments could be reduced by preventing market concentration and disciplining anticompetitive behavior. I argue that multilateral rules alone would ensure that cross-border activities of economic operators are subject to uniform rules, irrespective of which country’s or region’s market is affected; and thus, provide legal certainty for current gaps. Moreover, in spite of the resistance of numerous countries to include competition disciplines within the World Trade Organization (WTO), rules aimed at dismantling barriers to trade created by private economic operators are not only theoretically desirable but indispensable in the long term to avoid an erosion of the WTO system by effectively replacing state-created barriers. The increasing role of supply chains and the rising volatility of international commodity prices should give all, albeit particularly the economically weak developed countries, reason to pause and revisit an issue that has significant implications for the competitiveness of their economic operators.


Franziska Sucker
Associate professor, University of the Witwatersrand, Johannesburg.
Article

From International Law in Books to International Law in Action

ELTE Law School’s Jessup and Telders Victories in 2019

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Authors Gábor Katjár and Katalin Sulyok
Author's information

Gábor Katjár
Associate professor, ELTE Law School, Budapest, and coach of ELTE Jessup Team since 2010 as well as coach of ELTE Telders Team since 2016.

Katalin Sulyok
Senior lecturer, ELTE Law School, Budapest, and co-coach of ELTE Jessup Team in 2015, 2017 and 2019; co-coach of ELTE Telders Team in 2019.
Article

Access_open Putting the Dutch Child Labour Due Diligence Act into Perspective

An Assessment of the CLDD Act’s Legal and Policy Relevance in the Netherlands and Beyond

Journal Erasmus Law Review, Issue 4 2019
Keywords Mandatory Due Diligence, Responsible Business Conduct, Child Labour Due Diligence Act
Authors Liesbeth Enneking
AbstractAuthor's information

    In May 2019, the Dutch senate adopted a private member’s bill introducing a due diligence obligation for companies bringing goods or services onto the Dutch market with respect to the use of child labour in their supply chains. The aim of this article is to place this Child Labour Due Diligence (CLDD) Act in the national and international legal context and to discuss its relevance for the broader debate on international responsible business conduct (IRBC) in global value chains. The article shows that the CLDD Act introduces a due diligence obligation in this context that is new to Dutch law, as is the public law supervisor that is to be tasked with its enforcement. However, it does nothing to broaden the possibilities for access to remedies for victims of child labour beyond those already in existence. The article also shows that when compared with 2017 the French Duty of Vigilance Law, which is the only other mandatory due diligence law to have been adopted so far, the CLDD Act stands out in several respects. It is overshadowed, however, by the European parliament’s recent adoption of an ambitious outline for a future EU due diligence directive. Nonetheless, in view of the fact that it remains unclear for now whether the future EU directive on this topic will display the same level of ambition as the current proposal, the CLDD Act will remain relevant from an international perspective also for some time to come.


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