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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 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

Judicial Delegation of Administrative Acts During the Execution Phase or Execution Process

The Application of the Constitutional Principle of Efficiency, Under the Inspiration of Recent Portuguese Law Reforms

Journal European Journal of Law Reform, Issue 2 2013
Keywords Brazilian constitutional principle of efficiency, enforcement agents in Portugal, delegation of judicial procedural administrative and enforcement acts, enforcement proceedings
Authors Rafael Cavalcanti Lemos
AbstractAuthor's information

    The Constitutional Amendment 45/2004 emphasized the need for efficiency in both administrative and judicial judgments in Brazil and introduced the right of a trial within reasonable time (Art. 5, item LXXVIII) in the 1988 Federal Constitution. Although more judges are needed to comply with this constitutional requirement, no statutory regulation was enacted to date to conform to it, particularly to allow judges to delegate administrative and enforcement functions to civil servants. However, given that fundamental rights have immediate applicability, the principle of efficiency must be implemented regardless of further regulation. In Portugal, judges are not required to order executive acts, which are conferred to an enforcement agent. A similar system should be adopted in Brazil, leaving judges time for decision-making. An efficient judicial service is essential to strengthen the image of the Judiciary and depends on this type of reforms.


Rafael Cavalcanti Lemos
Judge at the Pernambuco Court of Justice, Diploma in Civil Procedures Law, Federal University of Pernambuco.
Article

Access_open Private law and ethical life

Honneth on legal freedom and its pathologies

Journal Netherlands Journal of Legal Philosophy, Issue 2 2013
Keywords Honneth, Hegel, social freedom, legal freedom, law, pathologies
Authors Jan Ph. Broekhuizen
AbstractAuthor's information

    In Das Recht der Freiheit Axel Honneth develops his concept of social freedom. In this article I discuss Honneth’s project and critique one of its crucial aspects: Honneth’s views on the disruptive role of legal freedom in our society and its dependent relation to the sphere of social freedom. I argue that in his attempt in Das Recht der Freiheit to reactualize Hegel’s discourse on the realization of freedom for our time, Honneth risks mistranslating Hegel’s discourse of ‘right’ by denying the sphere of legal relations a constitutive role for true freedom, and that because of this Honneth’s own theory of social freedom suffers: it becomes less clear whether it can still offer helpful insights into the proper place of legal freedom in our society.


Jan Ph. Broekhuizen
Jan Broekhuizen is an attorney (advocaat) in Amsterdam and a deputy judge at the Court of Appeals in Den Bosch (the Netherlands). He holds degrees in both law and philosophy.
Article

Access_open Revisiting the Humanisation of International Law: Limits and Potential

Obligations Erga Omnes, Hierarchy of Rules and the Principle of Due Diligence as the Basis for Further Humanisation

Journal Erasmus Law Review, Issue 1 2013
Keywords humanisation, constitutionalism, legal positivism, human rights, erga omnes, due diligence, positive obligations, normative hierarchy, proportionality
Authors Dr. Vassilis P. Tzevelekos
AbstractAuthor's information

    The article critically evaluates the theory of the humanisation of international law. First, it argues that despite human rights having impact on (other areas of) international law, this trend has in the past been somewhat inflated. A number of examples are given where human rights have been tested against other objectives pursued by international law, with humanisation revealing its limits and actual dimensions. The second argument consists in identifying and highlighting obligations erga omnes (partes) and the principle of due diligence as two ‘systemic’ tools, that are central to the humanisation of international law. Both these tools form part of modern positive law, but may also make a positive contribution towards the direction of deeper humanisation in international law, having the potential, inter alia, to limit state will, establish occasional material normative hierarchy consisting in conditional priority in the fulfilment of human rights, give a communitarian tone to international law and invite states to be pro-active in the collective protection of their common interests and values. In its conclusions, the article offers a plausible explanation about the paradox it identifies of the limits of the humanisation on the one hand, and its potential for further development on the other. For, it is inherent in international law that the line separating the law from deontology is thin. The process of humanisation needs to be balanced with the other objectives of international law as well as reconciled with the decentralised and sovereignist origins of the pluralistic international legal system.


Dr. Vassilis P. Tzevelekos
Lecturer in Public International Law, University of Hull Law School; Attorney, Athens’ Bar. PhD and M.Res, European University Institute; MA, European Political and Administrative Studies, College of Europe; DEA Droit international public et organisations internationales, Paris 1 Panthéon-Sorbonne; LLB, National and Kapodistrian University of Athens.
Article

Access_open The Regulation of Rating Agencies in Europe

Journal The Dovenschmidt Quarterly, Issue 2 2013
Keywords Credit Rating Agencies, Regulation No. 1060/2009, ESMA, sovereign ratings, complex products ratings
Authors Edith Weemaels
AbstractAuthor's information

    This article presents the current and future statutory framework for ratings agencies in Europe. The recent financial and economic crises dealt a fatal blow to this practice and the EU clearly intends to progress as quickly as possible when it comes to the regulation of credit rating agencies. This article examines the possibility that new EU framework serve to strengthen the position of credit rating agencies through the elimination of their unquestioned role in the markets. The author also presents existing and future European regulations and analyses the establishment and implementation of prudential supervision of the rating activity.


Edith Weemaels
Lawyer – Brussels Bar, Liedekerke Wolters Waelbroeck Kirkpatrick (Brussels), e.weemaels@liedekerke.com.

    In this article a non-binding global standard for solution of cross-border insolvency proceedings is introduced. These Global Principles for Cooperation in International Insolvency Cases can be used both in civil-law as well as common-law jurisdictions, and aim to cover all jurisdictions in the world. They are addressed to judges, insolvency practitioners and scholars, and aim to contribute to an improved global architecture of international insolvency.


Bob Wessels
Prof. Dr. Bob Wessels is an independent legal counsel in Dordrecht, The Netherlands, and professor International Insolvency Law, University of Leiden, School of Law. He can be reached at: info@bobwessels.nl.
Article

The Regularization of Undocumented Immigrants in the United States

The Spanish Solution

Journal European Journal of Law Reform, Issue 1 2013
Keywords undocumented immigrants, migration policy, regularization process, social assimilation, economic crisis
Authors Oscar Celador Angón
AbstractAuthor's information

    The aim of this article is to offer solutions to the problem of undocumented immigrants in the United States, using the Spanish migration model as a possible solution. During the last decade Spain has been the European country that has received more migration flows due to his economic development. Spain has used the knowledge and experience of other European host societies to design a migration model, which avoids the social conflicts arising from the coexistence of large numbers of undocumented immigrants, and that could provide answers to the problems faced by the US system.


Oscar Celador Angón
Oscar Celador Angón is Professor of Law and Director of the Department of International Law, Ecclesiastical Law and Philosophy of the Universidad Carlos III de Madrid.
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

The Importance of the Symbolic Role of the Head of State

Journal European Journal of Law Reform, Issue 1 2011
Keywords head of state, monarchy, democracy, symbolic, Sarkozy
Authors David Marrani
AbstractAuthor's information

    Why do we need, in a society that we assume to be democratic, someone that reminds us of the archaic organisation of humanity, someone like a head of state? We know that the ‘powerful’ heads have now been transformed, most of the time, in ‘powerless’ ones, with solely a symbolic role, often not recognised. So why do we need them and how important are they? Because they are part of our archaic memory, images of the father of the primitive hordes, and because they ‘sit’ above us, the symbolic role of the head of state can be read with the glasses of a psychoanalyst and the magnifier of a socio-legal scholar. This paper is a journey in time and space, looking at the move from the sovereign-monarch to the president-monarch, unfolding the question of authority and its link to ‘distance’ but also the connection to ‘the Father’ and the notion of the two bodies.


David Marrani
Dr. David Marrani, Senior Lecturer, University of Essex, School of Law, UK.
Article

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
AbstractAuthor's information

    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.


Nnaemeka Ewelukwa
Dr. iur. (Queen Mary, London), Senior Teaching Fellow, International Trade Law, School of Oriental and African Studies, University of London (SOAS).
Article

OHADA’s Proposed Uniform Act on Contract Law

Formal Law for the Informal Sector

Journal European Journal of Law Reform, Issue 3-4 2011
Authors Claire Moore Dickerson
AbstractAuthor's information

    A great deal of effort and a great deal of erudition have gone into the preparation of the OHADA Uniform Act on Contract Law (preliminary draft) [hereinafter draft Uniform Act on Contract Law].1xThe participants at this conference need no introduction to OHADA. The following sources may be helpful to Anglophones seeking basic information about this uniform system of business laws, which includes both statutes (“uniform acts”) and institutions, and is effective in 16 West and Central African countries (with a 17th having signed and ratified the constitutive treaty). Books: C. Moore Dickerson (Ed.), Unified Business Laws for Africa: Common Law Perspectives on OHADA, 2009; Mator et al., Business Law in Africa: OHADA and the Harmonization Process, 2nd edn, 2007; M. Baba Idris (Ed.), Harmonization of Business Law in Africa: The Law, Issues, Problems & Prospects, 2007. Websites, all of which have English-language content, including unofficial translations of the principal OHADA documents: <www.ohada.com>, which also contains scholarly articles; and <www.juriscope.org>, which provides English-language commentary for three of the uniform acts. Also useful is OHADA’s official website, <www.ohada.org>; however, as of this writing (25 February 2011), it describes its English-language portion as still under construction.
    During OHADA’s legislature, the Council of Ministers, adopted at its meeting (13-15 December 2010) revisions to two of its eight existing statutes, namely the Uniform Act on the General Commercial Law (“Acte Uniforme relatif au Droit Commercial Général”, originally adopted 17 April 1997, 1 JO OHADA 1 (1 October 1997), available at <www.ohada.com>, hereinafter sometimes “UAGCL”) and the Uniform Act on Secured Interests (the official French title is “Acte Uniforme portant Organisation des Sûretés,” originally adopted 17 April 1997, 3 JO OHADA 1 (1 October 1997), available at <www.ohada.com>), and adopted a new Uniform Act on Cooperatives, not yet in effect. Because the revised and new texts have not yet been published in their official form as of this writing (25 February 2011), all discussions of the uniform acts, and in particular of the UAGCL, are based on the texts in force prior to that meeting, except for the references at infra notes 10, 19 & 22. The acronym “OHADA” stands for “Organisation pour l’Harmonisation en Afrique du Droit des Affaires”, sometimes translated as “Organization for the Harmonization in Africa of Business Laws”.
    An important but simple observation is that by far the greater part of the economies in OHADA’s current and prospective member-countries is located in the informal sector. This reality inevitably will have an impact on the implementation of the proposed uniform act currently under discussion. To be sure, the uniform act, if adopted, will affect agreements in the formal sector. The focus here, however, is the informal sector, for which the draft uniform act is already remarkably suited, given its broad and clear fundamental principles, and its respect for local norms.

Noten

  • 1 The participants at this conference need no introduction to OHADA. The following sources may be helpful to Anglophones seeking basic information about this uniform system of business laws, which includes both statutes (“uniform acts”) and institutions, and is effective in 16 West and Central African countries (with a 17th having signed and ratified the constitutive treaty). Books: C. Moore Dickerson (Ed.), Unified Business Laws for Africa: Common Law Perspectives on OHADA, 2009; Mator et al., Business Law in Africa: OHADA and the Harmonization Process, 2nd edn, 2007; M. Baba Idris (Ed.), Harmonization of Business Law in Africa: The Law, Issues, Problems & Prospects, 2007. Websites, all of which have English-language content, including unofficial translations of the principal OHADA documents: <www.ohada.com>, which also contains scholarly articles; and <www.juriscope.org>, which provides English-language commentary for three of the uniform acts. Also useful is OHADA’s official website, <www.ohada.org>; however, as of this writing (25 February 2011), it describes its English-language portion as still under construction.
    During OHADA’s legislature, the Council of Ministers, adopted at its meeting (13-15 December 2010) revisions to two of its eight existing statutes, namely the Uniform Act on the General Commercial Law (“Acte Uniforme relatif au Droit Commercial Général”, originally adopted 17 April 1997, 1 JO OHADA 1 (1 October 1997), available at <www.ohada.com>, hereinafter sometimes “UAGCL”) and the Uniform Act on Secured Interests (the official French title is “Acte Uniforme portant Organisation des Sûretés,” originally adopted 17 April 1997, 3 JO OHADA 1 (1 October 1997), available at <www.ohada.com>), and adopted a new Uniform Act on Cooperatives, not yet in effect. Because the revised and new texts have not yet been published in their official form as of this writing (25 February 2011), all discussions of the uniform acts, and in particular of the UAGCL, are based on the texts in force prior to that meeting, except for the references at infra notes 10, 19 & 22. The acronym “OHADA” stands for “Organisation pour l’Harmonisation en Afrique du Droit des Affaires”, sometimes translated as “Organization for the Harmonization in Africa of Business Laws”.


Claire Moore Dickerson
LL.M. in Taxation (New York University), J.D. (Columbia), Professor of Law and Breaux Chair in Business Law (Tulane University), permanent visiting professor (University of Buea).
Article

Access_open Constitutionalism and the Incompleteness of Democracy: An Iterative Relationship

Journal Netherlands Journal of Legal Philosophy, Issue 3 2010
Keywords constitutionalism, globalization, democracy, modernity, postnational
Authors Neil Walker
AbstractAuthor's information

    The complexity of the relationship between democracy and modern constitutionalism is revealed by treating democracy as an incomplete ideal. This refers both to the empirical incompleteness of democracy as unable to supply its own terms of application – the internal dimension – and to the normative incompleteness of democracy as guide to good government – the external dimension. Constitutionalism is a necessary response to democratic incompleteness – seeking to realize (the internal dimension) and to supplement and qualify democracy (the external dimension). How democratic incompleteness manifests itself, and how constitutionalism responds to incompleteness evolves and alters, revealing the relationship between constitutionalism and democracy as iterative. The paper concentrates on the iteration emerging from the current globalizing wave. The fact that states are no longer the exclusive sites of democratic authority compounds democratic incompleteness and complicates how constitutionalism responds. Nevertheless, the key role of constitutionalism in addressing the double incompleteness of democracy persists under globalization. This continuity reflects how the deep moral order of political modernity, in particular the emphasis on individualism, equality, collective agency and progress, remains constant while its institutional architecture, including the forms of its commitment to democracy, evolves. Constitutionalism, itself both a basic orientation and a set of design principles for that architecture, remains a necessary support for and supplement to democracy. Yet post-national constitutionalism, even more than its state-centred predecessor, remains contingent upon non-democratic considerations, so reinforcing constitutionalism’s normative and sociological vulnerability. This conclusion challenges two opposing understandings of the constitutionalism of the global age – that which indicts global constitutionalism because of its weakened democratic credentials and that which assumes that these weakened democratic credentials pose no problem for post-national constitutionalism, which may instead thrive through a heightened emphasis on non-democratic values.


Neil Walker
Neil Walker is Regius Professor of Public Law and the Law of Nature and Nations at the University of Edinburgh, United Kingdom.
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