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Article

A Thorny Path to the Spotlight

The Rule of Law Component in EU External Policies and EU-Ukraine Relations

Journal European Journal of Law Reform, Issue 1 2014
Keywords rule of law, rule of law promotion, European Union, European Neighbourhood Policy, Ukraine
Authors Olga Burlyuk
AbstractAuthor's information

    The rule of law and its promotion abroad is currently at the core of EU external policies, specifically in the European neighbourhood. But has it always been the case? This article traces the rule of law component of EU external policies in general and EU–Ukraine relations as a case study, and reveals that in the last two decades the rule of law has followed a thorny path to the spotlight, emerging from a rather peripheral place in the 1990s to its currently central one. The article argues that this is a result of three processes: the legislative mainstreaming of the rule of law in the EU itself, the growing ambitiousness of EU–Ukraine relations, and the increased visibility of systemic shortcomings in rule of law application in Ukraine due to the trials of opposition politicians since 2010. The article concludes by suggesting that rule of law components of other EU bilateral relations in the European neighbourhood and beyond are subject to similar processes.


Olga Burlyuk
Recently awarded the degree of Doctor of Philosophy in International Relations, Brussels School of International Studies, the University of Kent.
Article

The Values of the European Union Legal Order

Constitutional Perspectives

Journal European Journal of Law Reform, Issue 1 2014
Keywords European Union, constitutional values, jurisprudence, rule of law, treaty objectives
Authors Timothy Moorhead
AbstractAuthor's information

    At the heart of the European Union legal order lie values directed collectively to the idea of European integration. As a body with significant governmental and lawmaking powers, the Union also presents itself as an institution based upon the rule of law. The Union ‘constitution’ therefore expresses both regulatory powers direct­ed towards European integration as well as rule of law principles whose scope of application is limited by the terms of the Treaties. In this article I consider how this distinctive amalgam of values operates as a constitution for the European Union, by comparison with domestic constitutional values within the Member States. I also consider how Union constitutional demands condition and inform the legal practices of the Court of Justice. Here I identify the interpretive effects of superior Union laws –‍ the core Treaty objectives as well as rule of law principles found within the General Principles ‍– as of particular significance in developing the legal influences of the entire Union project of integration.


Timothy Moorhead
Associate Lecturer, University of Kent.
Article

From a Soft Law Process to Hard Law Obligations

The Kimberley Process and Contemporary International Legislative Process

Journal European Journal of Law Reform, Issue 1 2014
Keywords Kimberley Process, soft law, international law, legislative process
Authors Martin-Joe Ezeudu
AbstractAuthor's information

    Ever since its creation and coming into force in 2003, the Kimberley Process has elicited a number of academic commentaries coming from different backgrounds. Legal scholars who have contributed to the commentaries, simply projected the regulatory regime as an international soft law without further analysis, based on an evaluation of the text of the agreement. This article in contrast, explores its practical effects and the manner of obligations that it imposes on its participant countries. It argues that although the regime may have been a soft law by classification, its obligations are hard and are no different from those of a conventional treaty. Those obligations enhance its juridical force, and are a factor by which the regime on its own tends to nullify the traditional criteria for distinction between hard and soft law in international jurisprudence, because it has elements of both.


Martin-Joe Ezeudu
PhD (Osgoode Hall Law School, York University, Toronto, Canada); LLM (University of Birmingham, UK); LLB (Nnamdi Azikiwe University, Awka, Nigeria); Barrister & Solicitor, Nigeria; Solicitor, England & Wales. An articling student at the Ontario Ministry of the Attorney General (Legal Services Branch of the Ministry of Consumer Services), Toronto, Canada. I am grateful to Prof Ikechi Mgbeoji who introduced me to this line of research. My thanks to Mr Tom van der Meer for his helpful comments on an earlier draft of this article. All errors and omissions remain mine. Dedicated to the loving memory of my brother, Chukwuemeka Innocent Ezeudu ‍–‍ a true brother and companion.
Article

Internet Trolling and the 2011 UK Riots

The Need for a Dualist Reform of the Constitutional, Administrative and Security Frameworks in Great Britain

Journal European Journal of Law Reform, Issue 1 2014
Keywords UK riots, tort law, criminal law, dualism, Internet trolling
Authors Jonathan Bishop
Abstract

    This article proposes the need for ‘dualism’ in the legal system, where civil and criminal offences are considered at the same time, and where both the person complaining and the person responding are on trial at the same time. Considered is how reforming the police and judiciary, such as by replacing the police with legal aid solicitors and giving many of their other powers to the National Crime Agency could improve outcomes for all. The perils of the current system, which treats the accused as criminals until proven not guilty, are critiqued, and suggestions for replacing this process with courts of law that treat complainant and respondent equally are made. The article discusses how such a system based on dualism might have operated during the August 2011 UK riots, where the situation had such a dramatic effect on how the social networking aspects, such as ‘Internet trolling’, affected it.


Jonathan Bishop
Article

Implementation of Better Regulation Measures in the Internal Security Draft Legislation

The Case of Estonia

Journal European Journal of Law Reform, Issue 1 2014
Keywords better regulation, internal security policy, impact assessment, participation, Estonia
Authors Aare Kasemets and Annika Talmar-Pere
AbstractAuthor's information

    The article analyses the implementation of better regulation measures in the internal security (IS) strategies, draft legislation and administrative routines of the Estonian Ministry of the Interior. The article includes the results of five substudies: (a) the research problem emerged from the studies of the explanatory memoranda of draft laws 2004-2009 according to which the Ministry has some deficiencies in fulfilling the better regulation requirements; (b) mapping of better regulation and internal security policy concepts; (c) content analysis of Estonian IS strategy documents; (d) systematization of Estonian IS laws; and (e) sociological e-survey of officials. Theoretical framework integrates the concepts of institutional theory, discursive democracy, realistic legisprudence and the adaptive strategic management.The main conclusions drawn by the article are as follows: the analysis of the knowledge of draft legislation and the excessive amount of laws in the IS field gives evidence of a lack of systematic regulatory impact assessment (IA); the concept of better regulation is not integrated into IS policy documents (insufficient planning and budgeting of IA); and a sociological e-survey of the officials of the Ministry indicates discontent with the management of the IA of policies and draft legislation. According to institutional analysis, this shows readiness for changes in the context of risk society challenges and adaptation with budgetary contractions.


Aare Kasemets
Estonian Academy of Security Sciences. Email: aare.kasemets@sisekaitse.ee.

Annika Talmar-Pere
Estonian Academy of Security Sciences.
Article

Judicial Case Management and the Complexities of Competing Norms Occasioned by Law Reforms

The Experience in Respect of Criminal Proceedings in Botswana

Journal European Journal of Law Reform, Issue 1 2014
Keywords case management, Botswana, criminal proceedings, law reform, subpoena
Authors Rowland J.V. Cole
AbstractAuthor's information

    The Botswana judicial and legal system has undergone a wave of reforms over the past few years. These reforms include judicial case management, which was introduced to reduce unnecessary delays and backlog in the hearing of cases. The introduction of judicial case management necessitates a revision of the rules of court. While the rules of the courts principally relate to civil proceedings, criminal proceedings are principally regulated by the Criminal Procedure and Evidence Act. However, the revised rules of court contain provisions that seek to bring criminal proceedings in line with judicial case management. A number of these provisions are inconsistent with the Criminal Procedure and Evidence Act. This presents problems for the implementation of these rules as the Criminal Procedure and Evidence Act is superior to the rules in the hierarchy of laws. Consequently, the implementation of judicial case management in criminal proceedings may prove to be an arduous task, and urgent harmonisation of the competing provisions is required.


Rowland J.V. Cole
LLB (Hons) (Sierra Leone), LLM (UNISA), LLD (Stell), Senior Lecturer, Department of Law, University of Botswana.
Article

The Costs and Consequences of US Drug Prohibition for the Peoples of Developing Nations

Journal European Journal of Law Reform, Issue 1 2014
Keywords U.S. drug policy, drug prohibition, War on Drugs, human rights, U.N. Declaration on the Right to Development
Authors J. Michael Blackwell
AbstractAuthor's information

    The widespread production and use of illicit drugs is a social phenomenon carrying enormous social, economic, and political significance. The United States stands as a vocal and forceful proponent of prohibitionist drug controls in international policymaking. However, strictly enforced US prohibitionist drug controls largely fail to effectively reduce the consumption of narcotic drugs and ultimately create a significant number of negative consequences for many peoples throughout the world. The increased violence, government corruption and community sequestration that result from the war against drugs are deleterious to economic development among rural communities in drug producing countries. In response to these concerns, this article examines the purpose, effects and consequences of the prohibitive drug controls routinely employed by the United States. Special attention is paid to an oft-overlooked repercussion of prohibitive drug controls: the marginalisation of developmental human rights for peoples in drug producing countries.


J. Michael Blackwell
J.D. candidate, Indiana University Robert H. McKinney School of Law, 2013; A special thanks to family, friends and Dr. Frank Emmert for guidance and support.
Article

Sir William Dale Annual Lecture

The Law Commission and the Implementation of Law Reform

Journal European Journal of Law Reform, Issue 4 2013
Authors The Rt. Hon. Sir David Lloyd Jones
Author's information

The Rt. Hon. Sir David Lloyd Jones
Chairman of the Law Commission of England and Wales.
Article

Donors without Borders

A Comparative Study of Tax Law Frameworks for Individual Cross-Border Philanthropy

Journal European Journal of Law Reform, Issue 4 2013
Keywords comparative, philanthropy, tax, deduction, international
Authors Joseph E. Miller, Jr.
AbstractAuthor's information

    Under current United States tax law, individual gifts to foreign charities generally are not deductible from federal income tax as charitable contributions. A comparative study of analogous tax laws in Switzerland and the United Kingdom demonstrates that the Swiss approach generally reflects the same prohibition against tax deductions for individual gifts to foreign charities, while British law permits such deductibility for gifts to qualified charities in other EU member states, Norway, and Iceland.
    All three countries’ legal frameworks demonstrate that their respective notions of the ‘public interest’ significantly affect their approaches to deductibility for gifts to foreign charities. The British conception of public interest, enlarged by participation in the European Union and the nondiscrimination requirements of the EU treaties, is embodied in its more expansive deductibility rules. Swiss non-participation in the EU, by contrast, reflects a more isolationist notion of public interest and may inform its prohibition on deductions for gifts to foreign charities. The narrower Swiss approach parallels the United States’ approach, and it suggests that an American expansion of deductibility for foreign charitable gifts could be encouraged by American participation in the proposed TPP, TTIP, or other multilateral trade agreements or economic unions.


Joseph E. Miller, Jr.
Joseph E. Miller is partner at Faegre Baker Daniels.
Article

Drafting of Legislation in Compliance with Model Laws

Journal European Journal of Law Reform, Issue 4 2013
Keywords challenges, domestic legislation, model laws
Authors Lesedi Poloko
AbstractAuthor's information

    Lawmaking is an essential attribute of a state. Laws differ from one country to another, and compliance with different legal rules may create problems. Uniformity of laws is an end in itself, and its value lies in its practical benefits. Interest in the quality of legislative instruments is a major concern, especially as regards the effectiveness of the national legislation.


Lesedi Poloko
LLM in Advanced Legislative Studies (2011-2012), Institute of Advanced Legal Studies, School of Advanced Study, University of London. The author would like to thank Prof. Helen Xanthaki for her constructive comments and valuable suggestions. Any errors remain those of the author.
Article

Drafting Conventions, Templates and Legislative Precedents, and their Effects on the Drafting Process and the Drafter

Journal European Journal of Law Reform, Issue 4 2013
Keywords drafting conventions, templates, legislative precedents, drafter’s skill, necessary tools for effective communication of language of legislation
Authors Agnes Quartey Papafio
AbstractAuthor's information

    The aim of this article is to explore whether drafting conventions, templates and legislative precedents contradict or complement the drafter’s style and if they complement the drafter’s style, the various ways in which the use of these tools achieves it.


Agnes Quartey Papafio
The author received her LLM Degree from the University of London, Institute of Advanced Legal Studies in 2012. She works at the Ministry of Justice and Attorney-General’s Office in Ghana as a legislative drafter attached to the Legislative Drafting Division.
Article

The Drafter’s Role in the Drafting Process

Journal European Journal of Law Reform, Issue 3 2013
Keywords drafter, drafting process, techniques, scrutiny
Authors Mico Augustin
AbstractAuthor's information

    Every government needs legislation to cover all issues transposing obligations in the manner required by the initiator and with respect to constitutional obligations and rules that provide for the conduct of society.
    Every legislative drafter should strive to achieve a law that is people oriented. The idea is to serve by extending legislative benefits to them in the best possible manner. Drafting is not a simple transcription or translation of administrative or executive guidelines, but is the command of legislative intent. It is a mixture of vision, mission and design, which brings out a workable proposition considering the background of a problem and foreseeing the ramifications of the legislative action. Drafting always supposes precision, brevity and clarity. Drafting should be compared to a focus of technical knowledge of a special kind that put together minds to produce a unity of thought enunciated as a command.
    In order to produce quality legislation, drafters need undergraduate law training, followed by specialised postgraduate training in legislative studies, combined with hands on experience in a drafting office with an experienced senior drafter.


Mico Augustin
Legislative Drafter and Advisor of the Rwanda Parliament/Chamber of Deputies. Email: micog2009@yahoo.fr
Article

Legislative Techniques in Rwanda

Present and Future

Journal European Journal of Law Reform, Issue 3 2013
Keywords legislative drafting, law-making, drafting techniques, Rwanda, quality of legislation
Authors Helen Xanthaki
AbstractAuthor's information

    This report is the result of the collective work of 26 Rwandan civil servants from a number of ministries, who set out to offer the Ministry of Justice a report on legislative drafting in Rwanda. The work was undertaken under the umbrella of the Diploma in Legislative Drafting offered by the Institute for Legal Professional Development (ILPD) in Nyanza under the rectorship of Prof. Nick Johnson. The authors have used their experience of practising drafting in Rwanda, but have contributed to the report in their personal capacity: their views are personal and do not reflect those of the Government of Rwanda.
    My only contribution was the identification of topics, which follows the well-established structure of manuals and textbooks in drafting; the division of the report into two parts: Part 1 on the legislative process and Part 2 on drafting techniques; and the methodology of each individual entry to our report: what is current Rwandan practice, what are international standards, what is the future of Rwanda, and a short bibliography to allow the readers and users of the report to read further, if needed.
    The strength of this report lies both in the methodology used and in the content offered. The breakdown of topics, their prioritization and their sequence allow the reader to acquire a holistic view on how legislation is drafted in Rwanda, but there is nothing to prevent its use in the context of surveys on legislative drafting and legislative quality in other jurisdictions. The content offers a unique insight into the legislative efforts of a jurisdiction in transition from civil to common law: both styles are assessed without prejudice, thus offering a unique fertile ground for critical assessment and practical impact analysis.
    June 2013


Helen Xanthaki
Senior Lecturer and Academic Director, Centre for Legislative Studies, Institute of Advanced Legal Studies, School of Advanced Study, University of London, Lawyer (Athens Bar).
Article

Treaties X Human Rights Treaties

A Critical Analysis of the Dual Stance on Treaties in the Brazilian Legal System

Journal European Journal of Law Reform, Issue 2 2013
Keywords human rights, international treaties, hierarchy of the treaties
Authors Gustavo Ferreira Santos
AbstractAuthor's information

    The Constitution of the Federative Republic of Brazil provides two procedures for incorporating treaties into domestic law. Human rights treaties must be approved by a special quorum: it is necessary that of three-fifths of the members of each legislative house vote in favour, with two rounds in each chamber. This proceeding is similar to a constitutional amendment. Treaties on other subjects need only the approval of the majority. This system has been in place since 2004. The Brazilian Supreme Court decided that human rights treaties incorporated after 2004 have the same hierarchical level of constitutional provisions but human rights treaties enacted before that have the same hierarchical position of ordinary statutory laws. This system needs to be reformed in order to allow an easier integration with international law. All human rights treaties should have the same position as constitutional provisions.


Gustavo Ferreira Santos
Professor of Constitutional Law at the Federal University of Pernambuco and the Catholic University of Pernambuco. Holder of a scholarship awarded by CNPq (Brazilian National Council for Scientific and Technological Development for Research Productivity).
Article

The Controversy Surrounding Article 9 of the Law That Defines How Brazilian Laws Are Applied

The Difficult Path to Reform of Private International Law Legislation in Brazil

Journal European Journal of Law Reform, Issue 2 2013
Keywords willingness, connecting element, controversy, Brazil
Authors Paul Hugo Weberbauer
AbstractAuthor's information

    This study aims to demonstrate that the legislative reform of Private International Law is one of the most complex subjects to be understood in terms of the Law in Brazil. With this objective, the point of reference of this study will be the controversy, which involves willingness as a connecting element, and is also known as the controversy around Article 9 of LINDB. By analyzing willingness as a connecting element within Brazilian legislation, a general panorama of the aforementioned Law is developed, as well as the debate of a doctrine nature about willingness as a connecting element and its insertion in the legal system in effect in Brazil. Finally, the difficulties encountered considering Brazil’s position towards international treaties and conventions, as well as the many attempts to reform Private International Law legislation will be analyzed.


Paul Hugo Weberbauer
Ph.D. in Law and Associate Professor of Recife Law School, Legal Sciences Centre at the Federal University of Pernambuco. Research Group: Regional integration, globalisation and International Law. E-mail: phwberbauer@hotmail.com.
Article

Continuous Mixed Forestry and the Citizens Forest Model

Journal European Journal of Law Reform, Issue 1 2013
Keywords continuous mixed forestry in Europe, citizen forest society, forest law reform, climate change, social forest ethics
Authors J.W. Simon and W. Bode
AbstractAuthor's information

    Climate change, air pollution and especially short-rotation forestry are the main causes for increasing detrimental effects on forests. Therefore, it is urgently necessary to find effective counteractions to this damage so that forests will become resistant, grow sustainably and are more economically effective and thus contribute optimally to the common welfare for all citizens. ‘Continuous mixed forestry’, in contrast to the normally used short-rotation or age-classed-forestry, is one suitable model to counteract climate change and air pollution in this way on both the local and national level. It is forestry without clear-cuts, biocides and with soft logging by continuous thinning and natural regeneration.The necessary change to this sustainable cultivation model is generally possible and necessary all over Europe and in other areas of the world. A very good chance for this type of forestry is available now within the framework of selling state-owned forests to private investors. This selling is planned by governments in some countries like the Great Britain1xThe Guardian, 22 December 2010, For sale: all of our forests. Not some of them, nor most of them – the whole lot, 11:55 GMT; Frankfurter Allgemeine Zeitung (2011), In love of the forest (Aus Liebe zum Forst), 4 February, No. 29, p. 5. But the British Government has apparently changed its view, see: The Guardian, 17 February 2011, Timber! Cameron in U-turn over forests sell-off, p. 1. and has been partly realised on a large scale in Germany.2xE.g. Lower House of the German Parliament (2009), answer of the Federal Government to the small question … Privatisation of forests by the Federal Institute of Real Estate Tasks, 16. Election period, Drucks. 16/14115, 30 September 2009. This article proposes selling the state-owned forests to a central, private national heritage foundation as a first step instead of transferring them with their traditional, mismanaged short rotation or age-classed forestry to private investors who would continue the state mismanagement. The task of the foundation would be to organize the ‘citizen forest society’ as a social-ethics–based society that is privately owned by citizens and the foundation. This would generate ecological advantages for the forest and moreover long-lasting profits for citizens, because the foundation would establish other organizations where the citizens become responsible owners of ‘their’ forest without any governmental or third-party influence.This proposal describes a solution to the demands of social-oriented ethics, which are primarily focused on the cooperation of responsible persons, represented by the private ownership of the forests, and directed by a responsible foundation.

Noten

  • 1 The Guardian, 22 December 2010, For sale: all of our forests. Not some of them, nor most of them – the whole lot, 11:55 GMT; Frankfurter Allgemeine Zeitung (2011), In love of the forest (Aus Liebe zum Forst), 4 February, No. 29, p. 5. But the British Government has apparently changed its view, see: The Guardian, 17 February 2011, Timber! Cameron in U-turn over forests sell-off, p. 1.

  • 2 E.g. Lower House of the German Parliament (2009), answer of the Federal Government to the small question … Privatisation of forests by the Federal Institute of Real Estate Tasks, 16. Election period, Drucks. 16/14115, 30 September 2009.


J.W. Simon
University of London, Institute for Advanced Legal Studies/Centre for Ethics and Law in the Life Sciences, Medical University Hannover.

W. Bode
Leit.Min.R., Ministerium für Umwelt und Verbraucherschutz/Saarland, 66121 Saarbrücken, Germany.
Article

Responsive Law Reform: A Case Study in Privacy and the Media

Journal European Journal of Law Reform, Issue 1 2013
Keywords law reform, regulatory theory, privacy, free speech, media
Authors Megan Richardson
AbstractAuthor's information

    This article develops a regulatory theory of law reform for common law jurisdictions drawing on a model of responsive regulation and applies it to a case study in Privacy and the Media with particular reference to law reform initiatives in Australia, New Zealand and the UK.


Megan Richardson
Professor of Law and Co-Director Centre for Media & Communications Law, Melbourne Law School, The University of Melbourne, former member of an International Advisory Panel for the New South Wales Law Reform Commission reference on invasion of privacy. This article was substantially written at the Institute for Advanced Legal Studies, where I had the privilege of being a Research Fellow in September–December 2012. I am grateful to the Institute for allowing me to spend three months in this excellent facility and also to my home institution, The Melbourne Law School, for supporting my research period abroad. The ideas in this article were presented at seminars at the Institute and at the Dickson Poon School of Law, King’s College London. I am grateful to those who attended for their helpful comments and especially to Tanya Aplin, Lyria Bennett Moses, Desmond Browne QC, Stewart Dresner, James Michael and Jan Oster. Thanks also to my colleagues Andrew Kenyon and Jason Bosland for additional helpful insights.
Article

Aspects of Italian Civil Law in the Recent Developments Regarding Money Laundering Regulations

Journal European Journal of Law Reform, Issue 1 2013
Keywords money laundering, preventive approach, traceability of payments
Authors Alessia Valongo
AbstractAuthor's information

    Original results have been achieved on the issue of money laundering through Italian regulations,1xG.M. Flick, ‘Riciclaggio’, in Enc. giur. Treccani, XXVII, Roma, 1991, p. 1; L. Magistro, Riciclaggio di capitali illeciti, Milano, 1991, p. 3; G. Amato, Il riciclaggio del denaro ‘sporco’, Roma, 1993, p. 17; L. Ferrajoli, La normativa antiriciclaggio, Milano, 1994, p. 3; E. Cassese, Il controllo pubblico del riciclaggio finanziario, Milano, 1999, p. 44; A. Di Amato, ‘Contratto e reato, Profili civilistici’, in P. Perlingieri (ed.), Tratt. dir. civ. Cons. Naz. Notariato, Napoli, 2003, p. 228; S. Faiella, Riciclaggio e crimine organizzato transnazionale, Milano, 2009, p. 11; R. Razzante, Il riciclaggio nella giurisprudenza, Milano, 2011, p. 43. mostly following the request of the European Community. In particular, the Decree dated 21 November 2007 n. 231, implementing two European directives (n. 2005/60/EC and n. 2006/70/EC), is the main framework, which coordinates the laws that have been passed in recent years.2xIt also has been amended by the so called “Save Italy Decree” (Decree dated 6 December 2011 n. 201, inside the Monti’s manoeuvre), which lays down urgent measures for growth and consolidation of public finances. My research is focused on the impact of the new regulations on the field of civil law, especially on contracts and obligations. The core of the paper is the involvement of the legal professionals and, in particular, of the lawyers, to the fight against money laundering. The topic also involves some problems about the protection of individual rights, such as right of transparency in the market, right to know economic and financial information, right to defense and to a fair trial, right to secrecy.

Noten

  • 1 G.M. Flick, ‘Riciclaggio’, in Enc. giur. Treccani, XXVII, Roma, 1991, p. 1; L. Magistro, Riciclaggio di capitali illeciti, Milano, 1991, p. 3; G. Amato, Il riciclaggio del denaro ‘sporco’, Roma, 1993, p. 17; L. Ferrajoli, La normativa antiriciclaggio, Milano, 1994, p. 3; E. Cassese, Il controllo pubblico del riciclaggio finanziario, Milano, 1999, p. 44; A. Di Amato, ‘Contratto e reato, Profili civilistici’, in P. Perlingieri (ed.), Tratt. dir. civ. Cons. Naz. Notariato, Napoli, 2003, p. 228; S. Faiella, Riciclaggio e crimine organizzato transnazionale, Milano, 2009, p. 11; R. Razzante, Il riciclaggio nella giurisprudenza, Milano, 2011, p. 43.

  • 2 It also has been amended by the so called “Save Italy Decree” (Decree dated 6 December 2011 n. 201, inside the Monti’s manoeuvre), which lays down urgent measures for growth and consolidation of public finances.


Alessia Valongo
Adjunct Professor, University of Perugia.
Article

The Application of Exception Clauses of the Rome Convention and the Rome I Regulation by the Dutch Courts

An Escape from Reality?

Journal European Journal of Law Reform, Issue 1 2013
Keywords Rome Convention 1980, Rome I Regulation, choice of law, exception clause, international commercial contracts
Authors Emmely de Haan
AbstractAuthor's information

    Both the Rome Convention and its successor the Rome I Regulation contain much discussed provisions on applicable law in the case of absence of a choice of law. Both instruments contain so called ‘exception clauses’ which refer to a closer connection of the contract with one state to the law of another state resulting from the general presumptions. The Netherlands is the frontrunner with a highly restrictive interpretation of the exception clauses. The applicable law to a transnational dispute might not always be the law of the competent court, although courts tend to prefer their own national law with which they are familiar. This year it has been exactly 20 years since the first revolutionary ruling on the subject by the Dutch Supreme Court, the so called Balenpers case. With the recent transition of the Convention into the Regulation, it is useful to analyse these connecting factors and review them in the context of the new Regulation. The Dutch courts have developed numerous connecting factors over the years. The article analyses Dutch case law on international contracts of carriage and international employment contracts from the implementation of the Rome Convention to date.


Emmely de Haan
The author graduated from Utrecht University in 2012 with an LL.M. degree in Dutch Private Law and is currently an LL.M. candidate at the University of Virginia in the United States, specializing in International Trade Law and Regulation and Dispute Settlement. This article is a shorter version of her master thesis, which was supervised by Professor dr. K.R.S.D. Boele-Woelki.
Article

What Virtues and Formalities Can Do for Corporate Social Responsibility and the Rule of Law in China?

仁 礼 誠 人, 人 必 治 法, 法 修 其 德, 德 治 其 國

Journal European Journal of Law Reform, Issue 4 2012
Keywords Chinese rule of law, Corporate Social Responsibility (CSR), sustainability, Confucianism, formative free speech
Authors Jin Kong
AbstractAuthor's information

    This article explores sustainability problems in China and foreign interests on the ‘rule of law’ problems there. The article undertakes an organic process improvement method (Define, Measure, Analyze, Control – ‘DMAC’) in hope to improve the west’s expectations of China and China’s own becoming of a rule of law nation. Corruption and environmental problems are of particular interest; China’s legal and political reform histories serve as our starting point; synergies between Confucian mercantile philosophy and modern corporate social responsibility principles are the undertones. The article will first Define the scope of China’s environmental, social, and economic problems; it will Measure the effects of these problems by observing the ontological and metaphysical uniqueness of the Chinese notion of ‘rule of law’ from a historical perspective; the Analysis will involve identifying synergies between Confucianism and Corporate Social Responsibility (hereinafter ‘CSR’); from these observations, this article will submit to Controling steps. Consequently, this article recognizes the need for ‘humanity’ and ‘formality’, in the Chinese sense, to aid one’s becoming of a law-biding person in China. The Chinese people will Control the laws that matter to them; those laws will evolve to cure the virtues of the people they are to govern.


Jin Kong
Jin Kong is a JD Candidate at the Robert H. McKinney School of Law. Jin also writes on the topic of sustainability at his blog, The Green Elephant (dot) US – <www.thegreenelephant.us>. The Chinese subtitle is loosely translated as follows: ‘If there is humanity and formality to aid one’s becoming a law-abiding person in China, they wil control the laws that matter to them; those laws will surely cure the virtues of its people and it is from those virtues a nation can govern.’
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