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Article

Access_open International Perspectives on Online Dispute Resolution in the E-Commerce Landscape

Journal International Journal of Online Dispute Resolution, Issue 2 2021
Keywords online dispute resolution (ODR), e-commerce, international dispute resolution, international law, United States, China, European Union, Australia, alternative dispute resolution (ADR), online platforms
Authors Teresa Ballesteros
AbstractAuthor's information

    This article will examine Online Dispute Resolution (ODR) from several perspectives to provide a comprehensive understanding of the global efforts to incorporate ODR in the e-commerce scope. Upon examining the nature and growth of both e-commercial activities and ODR, there will be an analysis from an international standpoint, where the article will discuss the relevant bodies and the progression of uniform standards in this regard. This is followed by an analysis of several jurisdictions, namely the United States, China, European Union and Australia. Finally, the essay will provide suggestions andrecommendations for the implementation of ODR.


Teresa Ballesteros
Teresa Ballesteros is a BCom/LLB student at the University of Sydney.
Article

Online Mediation and e-commerce (B2B and B2C) Disputes

Journal International Journal of Online Dispute Resolution, Issue 2 2021
Keywords ODR, online Mediation, e-commerce, business-to business (B2B), business-to consumer (B2C)
Authors Mariam Skhulukhia
AbstractAuthor's information

    Nowadays, electronic commerce plays a significant role in our society as internet transactions continue to grow in the business industry. Electronic commerce mainly refers to commercial transactions, such as business-to-business and business-to-consumer. Disputes are inevitable, part of our lives. Simultaneously by developing technology the need for an effective dispute resolution was obvious. Information communication technology and alternative dispute resolution together created online dispute resolution. Businesses and consumers are actively engaged in online dispute resolution. Therefore, the use of the internet makes business or consumer transactions easier. The online environment is much flexible when it comes to electronic commerce. This article focuses on online mediation, one of the most popular forms of online dispute resolution.


Mariam Skhulukhia
Mariam Skhulukhia has a Bachelor’s degree in law and a Master’s degree in International Business law from the University of Georgia. She participated in the Consensual Dispute Resolution Competition (CDRC VIENNA) in 2018 and the John H. Jackson Moot Court Competition in 2019. Mariam was an intern at Tbilisi City Court in Civil Affairs Board. Also, she worked as a lawyer for residency and citizenship matters at a foreign company. She has successfully passed a Bar Exam (Civil Law Specialization) in 2021. Mariam wrote her Master’s thesis: “Why do we need Online Mediation? Possible Challenges and Perspectives for Online Commercial Mediation in Georgia.” She also submitted her Research Paper titled “Mediating Online: Among the Praises and Diatribes in MediateGuru’s edited book titled “A Pathway to the Future of ADR: Comparative Perspectives around the World.”
Article

Access_open Populism, the Kingdom of Shadows, and the Challenge to Liberal Democracy

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Keywords Populism, Liberal democracy, Political representation, Société du spectacle, Theatrocracy
Authors Massimo La Torre
AbstractAuthor's information

    Populism is a somehow intractable notion, since its reference is much too wide, comprising phenomena that are indeed in conflict between them, and moreover blurred, by being often used in an instrumental, polemical way. Such intractability is then radicalized through the two alternative approaches to populism, one that is more or less neutral, rooting in the political science tradition, and a second one, fully normative, though fed by political realism, founding as it does on a specific political theory and project. In the article an alternative view is proposed, that of populism as the politics that is congruent with the increasing role played by ‘screens’, icons, and images in social relationships and indeed in political representation. In this way populism is approached as the specific way politics is done within the context of a digitalized société du spectacle.


Massimo La Torre
Massimo La Torre is Professor of Philosophy of Law, ‘Magna Graecia’ University of Catanzaro, Italy, and Visiting Professor of European Law, University of Tallinn, Estonia.
Article

Access_open What Solidarity?

A Look Behind the Veil of Solidarity in ‘Corona Times’ Contractual Relations

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Keywords Mechanical solidarity, Organic solidarity, Contract, Good faith, Punishment
Authors Candida Leone
AbstractAuthor's information

    The article uses three prominent examples from the Dutch context to problematize the relationship between contractual and social solidarity during the coronavirus crisis. The social science ideal types of ‘mechanical’ and ‘organic’ solidarity, and their typified correspondence with legal modes of punishment and compensation, are used to illuminate the way in which solidarity language in private relationships can convey and normalize assumptions about the public interest and economic order.


Candida Leone
Candida Leone is Assistant Professor at the, Amsterdam Centre for Transformative Private Law.

    This study explores the spread of disinformation relating to the Covid-19 pandemic on the internet, dubbed by some as the pandemic’s accompanying “infodemic”, and the societal reactions to this development across different countries and platforms. The study’s focus is on the role of states and platforms in combatting online disinformation.
    Through synthesizing answers to questions submitted by more than 40 researchers from 20 countries within the GDHR Network, this exploratory study provides a first overview of how states and platforms have dealt with Corona-related disinformation. This can also provide incentives for further rigorous studies of disinformation governance standards and their impact across different socio-cultural environments.
    Regarding the platforms’ willingness and efficacy in removing (presumed) disinformation, a majority of submissions identifies a shift towards more intervention in pandemic times. Most submitters assess that this shift is widely welcomed in their respective countries and more often considered as taking place too slowly (rather than being perceived as entailing dangers for unjustified restrictions of freedom of expression). The picture is less clear when it comes to enforcing non-speech related infection prevention measures.
    While the dominant platforms have been able to defend, or even solidify, their position during the pandemic, communicative practices on those platforms are changing. For officials, this includes an increasing reliance on platforms, especially social networks, for communicating infection prevention rules and recommendations. For civil society, the pandemic has brought an increasing readiness – and perceived need – to intervene against disinformation, especially through fact-checking initiatives.
    National and local contexts show great variance at whether platform-driven disinformation is conceived as a societal problem. In countries where official sources are distrusted and/or seen as disseminating disinformation criticism against private information governance by platforms remains muted. In countries where official sources are trusted disinformation present on platforms is seen more negatively.
    While Facebook, Twitter, and Instagram play important roles in the pandemic communication environment, some replies point towards an increasing importance of messaging apps for the circulation of Covid-19-related disinformation. These apps, like Telegram or WhatsApp, tend to fall under the radar of researchers, because visibility of content is limited and scraping is difficult, and because they are not covered by Network Enforcement Act-type laws that usually exclude one-to-one communication platforms (even if they offer one-to-many channels).
    Vis-à-vis widespread calls for a (re)territorialization of their content governance standards and processes amid the pandemic, platform companies have maintained, by and large, global standards. Standardized, featured sections for national (health) authorities to distribute official information via platforms are exceptions thereto.


Matthias C. Kettemann
Prof. dr. Matthias C. Kettemann, LL.M. (Harvard) is head of the research programme “Regulatory Structures and the Emergence of Rules in Online Spaces” at the Leibniz Institute for Media Research | Hans-Bredow-Institut.

Martin Fertmann
Martin Fertmann is a PhD student at the Leibniz-Institut für Medienforschung | Hans-Bredow-Institut’s research programme “Regulatory Structures and the Emergence of Rules in Online Spaces”.

    Terms-of-service based actions against political and state actors as both key subjects and objects of political opinion formation have become a focal point of the ongoing debates over who should set and enforce the rules for speech on online platforms.
    With minor differences depending on national contexts, state regulation of platforms creating obligations to disseminate such actors’ information is considered dangerous for the free and unhindered discursive process that leads to the formation of public opinions.
    Reactions to the suspension of Trump as not the first, but the most widely discussed action of platform companies against a politician (and incumbent president) provide a glimpse on the state of platform governance debates across participating countries.
    Across the countries surveyed politicians tend to see the exercise of content moderation policies of large platform companies very critically
    The majority of politicians in European countries seem to be critical of the deplatforming of Trump, emphasizing fundamental rights and calling for such decisions to be made by states, not private companies
    These political standpoints stand in an unresolved conflict with the constitutional realities of participating countries, where incumbents usually cannot invoke fundamental rights when acting in their official capacities and where laws with “must carry” requirements for official information do not exist for social media and would likely only be constitutional for narrowly defined, special circumstances such as disaster prevention.
    Facebooks’ referral of the Trump-decision to its Oversight Board sparked a larger debate about institutional structures for improving content governance. The majority of participating countries has experience with self- or co-regulatory press-, media- or broadcasting councils to which comparisons can be drawn, foreshadowing the possible (co-regulatory) future of governing online speech.
    Media commentators in participating countries interpreted the deplatforming of Trump as a signal that far-right parties and politicians around the world may face increasing scrutiny, while conservative politicians and governments in multiple participating countries instrumentalized the actions against Trump as supposed proof of platform’s bias against conservative opinions.
    Even without specific legal requirements on content moderation, submissions from several countries refer to a general – often: constitutional – privileging of speech of politicians and office holders. This could potentially support or even compel the decisions of platforms to leave content of political actors up even if it violates their terms of service.


Martin Fertmann
Martin Fertmann is a PhD student at the Leibniz-Institut für Medienforschung | Hans-Bredow-Institut’s research programme “Regulatory Structures and the Emergence of Rules in Online Spaces”

Matthias C. Kettemann
Prof. dr. Matthias C. Kettemann, LL.M. (Harvard) is head of the research programme “Regulatory Structures and the Emergence of Rules in Online Spaces” at the Leibniz Institute for Media Research | Hans-Bredow-Institut.
Article

Access_open European Standards of Judicial Independence in Lithuania

Journal East European Yearbook on Human Rights, Issue 1 2021
Keywords judicial independence, selection of judges, appointment of judges, rule of law, mutual trust
Authors Vygantė Milašiūtė and Skirgailė Žalimienė
AbstractAuthor's information

    The article examines the procedure for selection and appointment of judges in Lithuania in the light of the European standards of judicial independence. Both the Council of Europe and the European Union (EU) legal materials are relied on. The procedural role of different actors, the criteria for assessment of candidates, the question of judicial review of selection and appointment decisions as well as the problem of delays of judicial appointments are also examined. Even though the Lithuanian system for the selection and appointment of judges has been assessed favourably by European institutions, certain elements of the system are questionable. However, as long as these deficiencies are not systemic and do not raise issues of the rule of law in the sense of EU law, they would not negatively affect the operation of the EU law-based mutual trust instruments with respect to Lithuania. A suggestion is made that paying more attention to non-systemic deficiencies of judicial independence and the rule of law in EU member states could be beneficial for improving the protection of individual rights.


Vygantė Milašiūtė
Vygantė Milašiūtė: Associate professor at Vilnius University, Faculty of Law.

Skirgailė Žalimienė
Skirgailė Žalimienė: Associate professor at Vilnius University, Faculty of Law.
Article

Sustainability in Global Supply Chains Under the CISG

Journal European Journal of Law Reform, Issue 3 2021
Keywords CISG, sustainability, supply chains, UN Global Compact, Codes of Conduct, conformity of the goods
Authors Ingeborg Schwenzer and Edgardo Muñoz
AbstractAuthor's information

    In this article, the authors assert that the United Nations Convention for the International Sale of Goods (CISG) can contribute to tackling gaps in statutory legislation and defective business conduct that have been associated with unsustainable trade in Global Supply Chains (GSCs). The authors provide evidence that the CISG contains rules enabling a general legal framework for establishing uniform sustainable standards for goods concerning suppliers, sellers and buyers located in different countries. For instance, the CISG provisions on contract formation ease the incorporation of joint codes of conduct for sustainable trade in GSCs. In addition, the contracting parties’ circumstances and current trade usages are now more relevant to determine what constitutes conformity of the goods under the contract and the default warranties in Article 35 CISG. On the level of remedies, the authors show that best-efforts provisions, possibly included in a code of conduct or inferred from standards applicable to the goods, may redefine the notion of impediment in Article 79 CISG, which could lead to exoneration of liability for the seller. They also demonstrate why fundamental breach and the calculation of damages are at the centre of the discussion regarding the remedies for breach of an obligation to deliver sustainable goods.


Ingeborg Schwenzer
Ingeborg Schwenzer is Dean of the Swiss International Law School (SiLS), Professor emerita of Private Law at the University of Basel (Switzerland) and past Chair of the CISG Advisory Council. Dr. iur. (Freiburg i.Br.), LLM (UC Berkeley).

Edgardo Muñoz
Edgardo Muñoz is Professor of Law, Universidad Panamericana. Facultad de Derecho. Calzada Álvaro del Portillo 49, Zapopan, Jalisco, 45010, México. PhD (Basel), LLM (UC Berkeley), LLM (Liverpool), LLB (UIA Mexico), DEUF (Lyon). This research has been funded by Universidad Panamericana through the grant ‘Fomento a la Investigación UP 2020’, under project code UP-CI-2020-GDL-04-DER.
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

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

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.

    Earth Observation (EO) data products are the result of significant financial investments, resources and time, as well as the outcome of complex activities operated by a plethora of actors that follow different interests. The high “cost factor” of establishing and maintaining a space remote sensing system has led satellite operators to distribute data on a commercial basis, becoming a profitable industry. Private data owners aim to safeguard their profit interests implementing different kinds of “protection” on data products by putting a higher burden of cost on the users. Primary areas of investigation regarding the protection of generated data are data access policies, the articulate terms and conditions as well as restrictions of supply and use of data under which the operator is licensed, and the applicable Intellectual Property (IP) law regime. In the European context of copyright law, a step further is accomplished through the sui generis right for database (Database Directive 96/9/EC). The inconsistencies among the different practices of EO data generators concerning access policy and the applicable legal frameworks of IP rights leads to a lack of uniformity, a high level of vagueness and affect the legal interoperability of data. As a result of the fast-moving changes in the EO data supply sector, a comprehensive legal framework is highly requested. This paper will address the priorities which should be undertaken in its delineation. Among those, the rationalization of data access and the choice of open data access for applications beneficial to the society (e.g., climate protection) will be used as guiding principles.


Sara Dalledonne
Sara Dalledonne, McGill University.
Article

The Regional Preference from a Space Law and Policy Perspective and the European Intergovernmental Organisation as a Potential Model for the Middle East

Journal International Institute of Space Law, Issue 5 2020
Keywords regional preference, procurement, European perspective, Middle East, space industry
Authors Annette Froehlich and Claudiu Mihai Tăiatu
AbstractAuthor's information

    This article aims to provide the European perspective, highlighting the European Space Agency (ESA) procurement framework for regional industrial development as a potential model for the Middle East. Space activities are increasing across the Middle East and many of these countries are members of the World Trade Organization (WTO). This means that they must abide by WTO trade principles including competition rules. However, Middle East countries, especially Gulf countries, have developed national procurement frameworks applicable to the oil and gas industry to protect national industry participation and promote local employment. Similar rules of procurement could be proposed for the space industry in order to develop and secure the space industry in the Middle East region. To balance the criteria of regional preference and WTO competition rules, ESA’s industrial space policy could serve as a model for the Middle East.


Annette Froehlich
Dr. Annette Froehlich, LL.M., MAS, European Space Policy Institute (ESPI), Schwarzenbergplatz 6, Vienna, Austria; annette.froehlich@espi.or.at; German Aerospace Center (DLR); SpaceLab, Department of Electrical Engineering, University of Cape Town.

Claudiu Mihai Tăiatu
Claudiu Mihai Tăiatu, LL.M., European Space Policy Institute (ESPI), Schwarzenbergplatz 6, Vienna, Austria; claudiu.taiatu@community.isunet.edu.
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.
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