This article considers the question how knowledge of an impending ecological catastrophe is likely to impact on regulatory legitimacy and regulatory effectiveness. If the ultimate aim to safeguard meaningful human life on earth is in acute danger, this is likely to translate into zero tolerance towards non-compliance with environmental rules designed to avert catastrophe. This, in turn, will persuade regulators to employ normative technologies that do not engage with the moral reason of regulatees at all, but leave no option but to comply. In addition, regulators may turn to panoptic surveillance techniques that allow no breaches of rules to remain undetected. Finally, it is argued that if and to the extent that impending ecological catastrophe marks the end of maintaining the status quo as a plausible policy goal, regulators will be more sympathetic towards potentially apocalyptic technologies that carry greater promise for future gain than otherwise would be the case. |
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Journal | Netherlands Journal of Legal Philosophy, Issue 1 2011 |
Keywords | ecological catastrophe, regulatory legitimacy, regulatory effectiveness, geo-engineering |
Authors | Han Somsen |
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From Uneasy Compromises to Democratic PartnershipThe Prospects of Central European Constitutionalism |
Journal | European Journal of Law Reform, Issue 1 2011 |
Keywords | Central Europe, parliamentarism, freedom of religion, Roma people, discrimination |
Authors | Gábor Attila Tóth |
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The Central European constitutional democracies were created by the political and constitutional transition of 1989. However, twenty years later, in the light of antidemocratic, authoritarian and intolerant tendencies, it is far from clear whether the negotiated revolution is a story of success or failure. This paper first outlines the constitutional background of revolutionary transition. It shows that the achieved structures and rules do not prevent political communities from realizing the full promise of democracy. Second, this analysis attempts to explore how the century-old historical circumstances, the social environment, and the commonly failed practice of constitutional institutions interact. This section focuses on the constitutional features of presidential aspirations, the privileges of churches and certain ethnic tensions. Finally, the paper argues that the chances of success of liberal democracies depend significantly on extraconstitutional factors. It seems that Hungary is in a more depressing and dangerous period of its history than for example Poland. |
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Methods and Materials in Constitutional LawSome Thoughts on Access to Government Information as a Problem for Constitutional Theory and Socio-Legal Studies |
Journal | European Journal of Law Reform, Issue 1 2011 |
Keywords | Citizenship, democracy, government information, representative government, secrecy |
Authors | Barry Sullivan |
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To be subject to law, Hobbes argued, is to be deprived of liberty, as we understand it. In this respect, democratic governments are no different from others. Hobbes’s insight has not caused us to abandon our commitments to democracy, but it still challenges us to think hard about the nature of representative government, the nature of citizenship in a democratic society, and the conditions necessary for fulfilling the promise of democratic citizenship. Two recent trends are evident. Some citizens have embraced a more active sense of citizenship, which necessarily entails a more insistent need for information, while governments have insisted on the need for greater concentration of governmental power and a higher degree of secrecy. Much is to be learned from the approaches that various national and transnational regimes have taken with respect to this problem. This essay will consider the problem of access to government information from a comparative perspective and as a problem for constitutional theory and socio-legal studies. |
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In the Judicial Steps of Bolívar and Morazán?Supranational Court Conversations Between Europe and Latin America |
Journal | European Journal of Law Reform, Issue 1 2011 |
Keywords | courts, dialogue, integration, regionalism, case-law |
Authors | Allan F. Tatham |
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This paper explores the issues of judicial dialogue and constitutional migrations between the European Court of Justice (‘ECJ’) and Latin American regional courts. It considers the impact of the ECJ’s ‘constitutional’ case-law regarding supremacy and direct effect on the decisions of the Central American Court of Justice (‘CCJ’) and the Court of Justice of the Andean Community (‘ACCJ’). The study proceeds from a brief exposition of the legal aspects of the EU model of integration, before moving to identify the main factors which led to the selection of Latin American courts and to outline the background to integration in the two sub-regions. In addressing the CCJ and ACCJ, a short history and sketch of their jurisdiction is given before examining the impact of the migration of the integrationist activism of the ECJ on these regional judicial institutions. |
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Comparative Aspects on ConstitutionsTheory and Practice |
Journal | European Journal of Law Reform, Issue 1 2011 |
Keywords | Constitutions, EU legal order, EU member states, EU enlargement |
Authors | Alfred E. Kellermann |
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This paper will investigate for the influence of international legal developments on the drafting and implementation of constitutions, especially the impact of the European Union on the texts of the national constitutions of the EU Member States and its acceding countries. |
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The European Law from Grundnorm towards the CathedralConstitutional Features of a Complex Legal System |
Journal | European Journal of Law Reform, Issue 1 2011 |
Keywords | economic analysis of legal remedies, state liability for breach of the EU law, judicial dialogue in the EU, self-referring legal rules, efficiency of the EU law |
Authors | Mariusz Jerzy Golecki |
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Many hopes of the adherents of constitutional reform in the EU remained in vain after the enactment of the Lisbon Treaty. Meanwhile the creeping constitutionalisation of the EU law leads to the empowerment of the UE quasi constitutional court – the Court of Justice of the European Union. This kind of constitutionalism is albeit firmly grounded on judicial cross-border cooperation. The main purpose of this paper is to address the question of whether and how the concept of judicial control based on transactional framework developed in law and economics could effectively supplement if not substitute the notion of constitutional democratic legitimacy. In order to demonstrate that it is logically possible and institutionally feasible to build a system based on circularity, self-referentiality and privatization of legal remedies, the paper contains the economic analysis of the recent development of the EU law which at least partially takes this direction. |
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Sir William Dale Annual Memorial LectureGender-Neutral Law Drafting: The Challenge of Translating Policy into Legislation |
Journal | European Journal of Law Reform, Issue 2 2011 |
Keywords | legislation, policy, gender-neutral law drafting, New Zealand |
Authors | Margaret Wilson |
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For legislation to be inclusive it must be expressed in a way that is gender-neutral. Gender-neutral drafting became a policy issue in New Zealand in the 1980s and since that time gender-neutral drafting has become an accepted drafting practice. The issue has been to ensure previous legislation is gender-neutral. The Legislation Bill that is before the Parliament provides for legislation already enacted to be reviewed to remove gendered language. The main lesson to be learnt from the New Zealand experience is the need for political and bureaucratic commitment to gender-neutral drafting. |
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Instructions to Draft LegislationA Study on the Legislative Drafting Process in Malaysia |
Journal | European Journal of Law Reform, Issue 2 2011 |
Keywords | legislative drafting process, role of instructing officer and drafter |
Authors | Rozmizan Muhamad |
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The importance of legislation is beyond any dispute. Legislation governed us perhaps even before our birth, certainly during our life and until our death. Even after our death there is still the Estate Duty Act to worry about, although of course the burden passes on to our executors or administrators. But day after day, many more new laws have been proposed and many existing laws have been revised and amended for various reasons and motives. The need for legislation has never diminished but continues to increase. Governments need legislation to govern, by which they achieve their political objectives and public policies. In other words, legislation is needed to affect changes in the law, to interfere with vested rights and interests, and to impose taxes, duties, excise and imposts. Such need originates from one or more of a great many sources such as a commission of inquiry, politicians, a particular pressure group or the public as a whole and also a reaction to social situations which seemingly develop independently or deliberately |
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Judicial ReviewAn Essential Tool for Curbing the Excesses and Abuse of Executive Action in Sierra Leone |
Journal | European Journal of Law Reform, Issue 2 2011 |
Keywords | delegated legislation, administrative law, judicial review |
Authors | Kadija Kabba |
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This essay examines judicial review in executive/administrative action as an essential tool for curbing the excesses and abuse of delegated legislative powers in Sierra Leone based on the valid assumption that there is a system of administrative law due to a developed system of judicial review in Sierra Leone. To examine and establish the facts, focus is laid on judicial review of administrative/ executive action and not on judicial review of primary legislation.This article first and foremost tried to establish that, the practice of delegated legislation from which judicial review ensues is a necessity in any given democratic society.This piece of work in trying to establish its facts, put forward arguments by scholars and writers in support and against the use of judicial review as an essential tool to curb the abuse and excesses of executive’s action. This is juxtaposed in conjunction with cases laws from Sierra Leone dealing with judicial review.The irrefutable fact this article tried to illustrate is that judicial review is important in any society in curtailing the excesses and abuse of executive actions. |
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Legislative Drafting and Human RightsThe Example of the European Arrest Warrant |
Journal | European Journal of Law Reform, Issue 2 2011 |
Keywords | rule of law, drafting EU legislation, Framework Decision 2002/584 on the European Arrest Warrant |
Authors | William Robinson |
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This article considers some of the requirements for good laws, focusing in particular on the drafters’ perspective. It looks first in general terms at the requirements forming part of the rule of law that laws be accessible and predictable. It then examines the drafting of laws in the European Union: how it is done; the concern to make EU laws accessible; and specific features of EU legislative drafting rules and practices, illustrated by reference to Framework Decision 2002/584. |
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Les avantages comparatifs des Règlements d’arbitrage CIRDI-CNUDCI-CCJA |
Journal | European Journal of Law Reform, Issue 3-4 2011 |
Authors | Sylvie Bebohi |
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L’arbitrage occupe une place centrale dans la régulation des échanges internationaux. En effet, en l’absence d’une juridiction internationale de droit privé, il est devenu «la seule méthode réaliste de résolution des litiges commerciaux internationaux».L’essor de l’arbitrage s’accompagne ainsi de l’adoption de Conventions multilatérales, d’autres textes juridiques et règlements d’arbitrage, modernes pour la plupart, ayant pour objectif de faire face aux situations nouvelles qu’engendre la mondialisation de l’économie. Cet essor est davantage ressenti plus dans le domaine des investissements notamment avec le développement des Traités Bilatéraux d’Investissement. |
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La vente commerciale en droit OHADA: apports et emprunts |
Journal | European Journal of Law Reform, Issue 3-4 2011 |
Authors | Joseph Issa Sayegh |
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Le droit uniforme de l’OHADA réglemente quelques contrats spéciaux des affaires: le bail; le courtage; la commission; le mandat de l’agent commercial; la société commerciale; le transport des marchandises par route; la vente commerciale. Hormis la société commerciale, seule la vente entre commerçants est longuement régie par 87 Arts. de l’acte uniforme relatif au droit commercial général (AUDCG) dans tous les détails de sa formation, son exécution, son dénouement. L’intérêt du législateur OHADA pour ce contrat se comprend pour, soit plusieurs raisons. |
This paper will make the case for more widespread African adherence to the United Nations Convention on the International Sale of Goods, 1980 (“CISG”) on the ground that it represents an effort through the United Nations system to make available harmonised rules on the international sale of goods which are intended to have an international and universal reach. The paper begins with an introduction which briefly examines the origins of CISG and proceeds to discuss the relevance of CISG to Africa. It ends with a recommendation to African States to accede to, or ratify, the Convention. |
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International Trade Law Reform in AfricaA Call for Action |
Journal | European Journal of Law Reform, Issue 3-4 2011 |
Authors | Luca G. Castellani |
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Africa is a major source of commodities and other natural resources. However, such wealth has not yet led to economic development or to increased living standards. On the contrary, Africa remains underdeveloped while other regions of the world enjoy significant, if not spectacular, success. Between 1970 and 2008, the pro-capita income of African energy-exporting countries has increased 72%, while that of African Least Developed Countries has decreased 13%, and that of remaining African countries has increased 31%; in the same period of time, the increase in pro-capita income for South Asian and East Asian low income countries has been, respectively, 236% and 223%, and that of China a staggering 1,531%. |
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Unification of Southern African Contract Law |
Journal | European Journal of Law Reform, Issue 3-4 2011 |
Authors | Riekie Wandrag |
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The unification or harmonisation of laws and legal systems is not a new phenomenon. Schmitthoff describes the wave of national unification of commercial laws in Europe during the nineteenth century as a method of obtaining political unity. According to Faria similar results were achieved on a wider scale by the dissemination of English legal traditions throughout common law jurisdictions. What he describes as the “ultimate goal”, however, was the unification of private law, the benefits of which had been extolled by Lord Justice Kennedy as early as 1909. |
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Is Africa Ready for Electronic Commerce?A Critical Appraisal of the Legal Framework for Ecommerce in Africa |
Journal | European Journal of Law Reform, Issue 3-4 2011 |
Authors | Nnaemeka Ewelukwa |
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It remains a daunting but not insurmountable challenge to actualize broad-based long term economic development in Africa. Statistics indicate that the poverty level in the continent is very high and the continent’s contribution to global trade remains very low in terms of export outflows. While acknowledging the negative aspects of Africa’s development however, it is important to note that the future may yet become brighter if key steps are taken by law and policy makers in the continent to put in place laws and policies that can facilitate the development process. One of the ways in which economic development can be facilitated is to significantly boost Africa’s contribution to global trade. In this regard, it has been noted that ‘After falling by 2.5% in 2009, export volumes of African countries are expected to increase on average by 3.2% in 2010 and by 5% in 2011. |
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Chinese Judicial Methodologies to Determine the Validity of Arbitration Agreements“Arbitration in Hong Kong and English Law to Apply” as an Example |
Journal | European Journal of Law Reform, Issue 3-4 2011 |
Authors | Song Lianbin and Sophia Juan Yang |
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As Financial Times says, “it is now difficult to consider African prospects without the mention of China, which in the past decade has increased trade with the continent 10-fold – from $ 10 billion to more than $ 100 billion and has overtaken the US and the Europe as the largest trading partner in some important economies”.1x See Financial Times Special Report on Africa-China Trade, available at <http://media.ft.com/cms/de832bb2-7500-11df-aed7-00144feabdc0.pdf>. Africa has particular needs for cost-effective and time-effective mechanisms for resolving trade disputes with Chinese parties. The most preferred choice is, not surprisingly, commercial arbitration. Noten
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Propos impertinents sur l’unification du droit général des contrats |
Journal | European Journal of Law Reform, Issue 3-4 2011 |
Authors | Mbissane Ngom |
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Les propos qui suivent revendiquent une double impertinence. Celle de la répétition car ils reprennent des points de vue déjà exprimés par d’autres, rappelant une vérité d’évidence reconnue par beaucoup, concernant le projet d’uniformisation du droit des contrats dans l’espace OHADA.1xActes du colloque ‘Harmonisation du droit OHADA des contrats’, Ouagadougou, 15-17 novembre 2007, disponible à <www.ohada.com/doctrine/Ohadata/D-09-26>. L’impertinence de l’originalité également en essayant de présenter sous un regard nouveau l’ambition d’intégration du droit des contrats exprimée par les autorités de l’Organisation pour l’Harmonisation du Droit des Affaires en Afrique. Noten
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Autonomy and Due Process in ArbitrationRecalibrating the Balance |
Journal | European Journal of Law Reform, Issue 3-4 2011 |
Authors | Christa Roodt |
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Conflicts of jurisdiction between a state court and an arbitral tribunal occur in two different scenarios: (a) claimant X institutes a court action and the defendant subsequently commences with arbitration or requests to be referred to arbitration (as envisaged by the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards – NYC); and (b) claimant X commences arbitration and the defendant subsequently challenges in a national court. X should be able to seek a stay of the parallel litigation on the ground of the existence of a valid agreement to arbitrate the dispute, but the duty on the part of South African courts to do so is not clearly legislated, nor is it as well-understood as it deserves to be. Various interests have fallen into disharmony in this area of the law. |
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Unification of General Contract Law in AfricaThe Case of the UNIDROIT Principles of International Commercial Contracts |
Journal | European Journal of Law Reform, Issue 3-4 2011 |
Authors | Stefan Vogenauer |
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The organizers of this conference kindly invited me to speak on the unification of general contract law and on one specific instrument in this area: the UNIDROIT Principles of International Commercial Contracts (‘PICC’).1xSee UNIDROIT International Institute for the Unification of Private Law, UNIDROIT Principles of International Commercial Contracts 2004, Rome, April 2004, available at <www.unidroit.org/english/principles/contracts/principles2004/integralversionprinciples2004-e.pdf>. I would like to use the 14 minutes allocated to my paper to touch on three issues. First, I will give a short overview of the PICC for those who are not yet familiar with this instrument. Secondly, I will look at the use of the PICC in legal practice. And thirdly, I will assess the potential of the PICC for making a contribution to the unification of general contract law in Africa. Overall, I can afford to be brief and limit myself to introductory comments because Ms Mestre of UNIDROIT will cover much of the ground in greater detail. Noten
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