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Article

Access_open Digital Justice

Reshaping Boundaries in an Online Dispute Resolution Environment

Journal International Journal of Online Dispute Resolution, Issue 1 2014
Keywords ADR, ODR, DSD, digital technology, boundaries, dispute prevention
Authors Orna Rabinovich-Einy and Ethan Katsh
AbstractAuthor's information

    Digital technology is transforming the landscape of dispute resolution: it is generating an ever growing number of disputes and at the same time is challenging the effectiveness and reach of traditional dispute resolution avenues. While technology has been a disruptive force in the field, it also holds a promise for an improved dispute resolution landscape, one that is based on fewer physical, conceptual, psychological and professional boundaries, while enjoying a higher degree of transparency, participation and change. This promise remains to be realized as the underlying assumptions and logic of the field of dispute resolution have remained as they were since the last quarter of the 20th century, failing to reflect the future direction dispute resolution mechanisms can be expected to follow, as can be learned from the growth of online dispute resolution. This article explores the logic of boundaries that has shaped the traditional dispute resolution landscape, as well as the challenges such logic is facing with the spread of online dispute resolution.


Orna Rabinovich-Einy
Orna Rabinovich-Einy is Senior Lecturer, University of Haifa School of Law. Fellow, National Center for Technology and Dispute Resolution. For advice and suggestions we appreciate the guidance received from participants in the Cardozo Works in Progress conference in November 2013 and the Copenhagen Business School – Haifa Law Faculty Colloquium.

Ethan Katsh
Ethan Katsh is Director, National Center for Technology and Dispute Resolution and Professor Emeritus of Legal Studies, University of Massachusetts at Amherst. This article has benefited from research supported by National Science Foundation award #0968536, ‘The Fourth Party: Improving Computer-Mediated Deliberation through Cognitive, Social and Emotional Support’, <www.nsf.gov/awardsearch/showAward?AWD_ID=0968536>.
Article

Access_open ODR Redress System for Consumer Disputes

Clarifications, UNCITRAL Works & EU Regulation on ODR

Journal International Journal of Online Dispute Resolution, Issue 1 2014
Keywords consumer redress, B2C v/ B2B, ODR, UNCITRAL, EU Regulation
Authors Mirèze Philippe
AbstractAuthor's information

    Despite the evolution and the experience in the field of ODR, it appears that some aspects remain to be clarified in order to attempt to determine which type of procedure would be best adapted to consumer disputes. What does online arbitration mean and is this ODR? What is the profile of the users making use of ODR? What mechanisms are adapted to business disputes and to consumer disputes? Are procedural issues for disputes resolved through mediation similar to those resolved through arbitration? The article discusses about indispensable clarifications which may have an impact on the choice of procedure: mediation or arbitration. It then raises issues related to the UNCITRAL ODR WG discussions on a redress system for cross-border consumer disputes and questions whether types of disputes and potential mechanisms are not confused. Finally, the European Union which adopted a Regulation on ODR for consumer disputes may have found a solution.


Mirèze Philippe
Special Counsel at the Secretariat of the ICC International Court of Arbitration.
Article

Access_open Third-Party Ethics in the Age of the Fourth Party

Journal International Journal of Online Dispute Resolution, Issue 1 2014
Keywords ODR, ethics, fourth party, ADR, standards of practice
Authors Daniel Rainey
AbstractAuthor's information

    ‘Third Party Ethics in the Age of the Fourth Party’ presents and discusses some of the ethical impacts of the use of information and communication technology (ICT) in third party practice (mediation, facilitation, arbitration, etc.). The article argues that all of the ethical requirements related to third party practice have been affected by the use of ICT, that ethical standards of practice must be reviewed in light of the use of ICT, and that changes in ethical requirements based on the use of ICT will be evolutionary, not revolutionary.


Daniel Rainey
Clinical Professor of Dispute Resolution at Southern Methodist University, Chief of Staff for the National Mediation Board, and adjunct faculty in the dispute resolution programmes at Creighton University and Dominican University. <http://danielrainey.us>.
Article

Access_open What Makes Age Discrimination Special? A Philosophical Look at the ECJ Case Law

Journal Netherlands Journal of Legal Philosophy, Issue 1 2014
Keywords age discrimination, intergenerational justice, complete-life view, statistical discrimination, anti-discrimination law
Authors Axel Gosseries
AbstractAuthor's information

    This paper provides an account of what makes age discrimination special, going through a set of possible justifications. In the end, it turns out that a full understanding of the specialness of age-based differential treatment requires that we consider together the ‘reliable proxy,’ the ‘complete-life neutrality,’ the ‘sequence efficiency’ and the ‘affirmative egalitarian’ accounts. Depending on the specific age criteria, all four accounts may apply or only some of them. This is the first key message of this paper. The second message of the paper has to do with the age group/birth cohort distinction. All measures that have a differential impact on different cohorts also tend to have a differential impact on various age groups during the transition. The paper points at the practical implications of anti-age-discrimination law for differential treatment between birth cohorts. The whole argument is confronted all along with ECJ cases.


Axel Gosseries
Axel Gosseries is a permanent research fellow at the Belgian FRS-FNRS and a Professor at the University of Louvain (UCL, Belgium) where he is based at the Hoover Chair in Economic and Social Ethics.
Article

Access_open The Right to Have Rights as the Right to Asylum

Journal Netherlands Journal of Legal Philosophy, Issue 1 2014
Keywords Arendt, asylum, refugeeship, right to have rights, statelessness de facto and de jure
Authors Nanda Oudejans
AbstractAuthor's information

    This article argues that the right to have rights, as launched by Hannah Arendt, is relative to refugee displacement and hence translates as a right to asylum. It takes issue with the dominant view that the public/private divide is the locus classicus of the meaning of this primordial right. A different direction of thought is proposed, proceeding from Arendt’s recovery of the spatiality of law. The unencompassibility of place in matters of rights, freedom and equality brings this right into view as a claim at the behest of those who have lost a legal place of their own. This also helps us to gain better understanding of Arendt’s rebuttal of the sharp-edged distinction between refugees and stateless persons and to discover the defiant potential of the right to have rights to illuminate the refugee’s claim to asylum as a claim to an own place where protection can be enjoyed again.


Nanda Oudejans
Nanda Oudejans is an independent researcher in philosophy of law and political philosophy.
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.
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