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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

Access_open Business Enterprises and the Environment

Corporate Environmental Responsibility

Journal The Dovenschmidt Quarterly, Issue 4 2013
Keywords Corporate Environmental Responsibility, Environmental Due Diligence, Environmental CSR, Business enterprises and the environment, Environmental complement to Ruggie Framework
Authors Katinka D. Jesse and Erik V. Koppe
AbstractAuthor's information

    In 2011, following his 2005 initial mandate of the UN Commission on Human Rights and his extended 2008 mandate of the UN Human Rights Council, the Special Representative of the Secretary-General (SRSG) on the issues of human rights and transnational corporations and other business enterprises, Professor John Ruggie, issued the final text of the ‘Guiding Principles for the Implementation of the United Nations “Protect, Respect and Remedy Framework”‘. The 2008 Framework on Business and Human Rights and the complementing 2011 Guiding Principles consist of three pillars: the duty of states to protect human rights, the responsibility of business enterprises to respect human rights, and access to remedies for victims of human rights abuses. They currently qualify as the dominant paradigm in the corporate social responsibility (CSR) discourse, also because they now form part of various soft law and self-regulation initiatives. The Framework and Guiding Principles do not, however, specifically focus on environmental issues, but their systematic approach and structure do provide a model to address state duties and business responsibilities to care of the environment. This article is intended to complement the UN Framework and Guiding Principles on business and human rights with principles in the field of business and the environment. Hence, it is submitted that states have a customary duty to care for the environment; it is similarly submitted that business enterprises have a responsibility to care for the environment; and it is submitted that stakeholders must have access to remedies in relation to breaches of these duties and responsibilities.


Katinka D. Jesse
Dr. Katinka D. Jesse is post-doctoral research fellow at North-West University, South Africa.

Erik V. Koppe
Dr. Erik V. Koppe is assistant professor of public international law at Leiden Law School, The Netherlands. This article is partly based on research conducted by Jesse and Koppe as HUGO Fellows at the Netherlands Institute for Advanced Studies in Wassenaar in the fall of 2011.
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

Access_open There is Only One Presumption of Innocence

Journal Netherlands Journal of Legal Philosophy, Issue 3 2013
Keywords burden of proof, German law, procedural rights, pretrial detention
Authors Thomas Weigend
AbstractAuthor's information

    Antony Duff proposes a comprehensive concept of the presumption of innocence, covering the period before, during and after a criminal process, both in an official (state vs. individual) and a non-official, civic sense. By that broad usage, the concept of presumption of innocence is getting blurred and risks losing its contours. I therefore suggest to keep separate matters separate. The presumption of innocence in the narrow sense that I suggest applies only where there exists a suspicion that an individual has committed a criminal offence. The important function of the presumption of innocence in that situation is to prevent an over-extension of state power against the individual under suspicion before that suspicion has been confirmed to be true beyond a reasonable doubt. A general presumption that all people abide by the law at all times is neither warranted nor necessary. It is not warranted because experience tells us that many people break some laws sometimes. And it is not necessary because a system of civil liberties is sufficient to protect us against official or social overreach based on a suspicion that we may commit crimes.


Thomas Weigend
Thomas Weigend is Professor of Criminal Law at the University of Cologne.
Article

The Pursuit of Clarity, Precision and Unambiguity in Drafting Retrospective Legislation

Journal European Journal of Law Reform, Issue 3 2013
Keywords retrospectivity, clarity, precision, unambiguity, legislative drafting
Authors Elias Turatsinze
AbstractAuthor's information

    The hypothesis of this paper is that clarity, precision and unambiguity are the essential tools for expressing retrospective intent, which is a pre-requisite for quality and validity of retrospective legislation. The main objective of this work is to show that retrospective laws are valid, if the retrospective intent is expressed in clear, precise and unambiguous words within the statute. The term retrospectivity is used broadly to describe any legislation or decision affecting pre-enacting conduct. It encompasses statutes affecting the pre-enactment events, administrative regulations or decisions which look back in time and judicial decisions that overturn prior decisions. All these areas cannot be covered in this limited piece of work. Thus, the emphasis in this work will be put on retrospectivity of statutes at the drafting stage. Although it may be referred to generally, retrospective delegated legislation is outside the scope of this work. Particular attention will be directed towards the importance of clarity, precision and unambiguity in attaining quality and validity of retrospective legislation.


Elias Turatsinze
Elias Turatsinze graduated in Legislative Drafting (LLM) from the University of London- Institute of Advanced Legal Studies in 2012.
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

Access_open Multinationals and Transparency in Foreign Direct Liability Cases

The Prospects for Obtaining Evidence under the Dutch Civil Procedural Regime on the Production of Exhibits

Journal The Dovenschmidt Quarterly, Issue 3 2013
Keywords foreign direct liability, corporate social responsibility, transparency document disclosure, Dutch Shell Nigeria case
Authors Liesbeth F.H. Enneking
AbstractAuthor's information

    On 30 January 2013, the The Hague district court rendered a final judgment with respect to a number of civil liability claims against Royal Dutch Shell (RDS) and its Nigerian subsidiary Shell Petroleum Development Company of Nigeria (SPDC) that had been pursued by four Nigerian farmers and the Dutch NGO Milieudefensie in relation to various oil spills from SPDC-operated pipelines in the Nigerian Niger Delta. This case is the first Dutch example of a broader, worldwide trend towards similar transnational civil liability procedures against multinational corporations for harm caused to people and planet in developing host countries. This worldwide trend towards so-called ‘foreign direct liability cases’ and the Dutch Shell Nigeria case in particular raise many interesting socio-political as well as legal questions. This article will focus on the question what the prospects are for plaintiffs seeking to pursue such claims before a Dutch court when it comes to obtaining evidence under the Dutch civil procedural regime on the production of exhibits. This is a highly relevant question, since the proceedings in the Dutch Shell Nigeria case seem to indicate that the relatively restrictive Dutch regime on the production of exhibits in civil procedures may potentially impose a structural barrier on the access to remedies before Dutch courts of the victims of corporate violations of people and planet abroad.


Liesbeth F.H. Enneking
Liesbeth Enneking is a Postdoctoral Research Fellow at UCALL, Utrecht University’s multidisciplinary Centre for Accountability and Liability Law, and an Assistant Professor of Private International Law at Utrecht University’s Molengraaff Institute for Private Law. The author would like to thank prof. I. Giesen for comments on an earlier version of this article.
Article

Access_open Multinational Corporations and Human Rights

Civil Procedure as a Means of Obtaining Transparency

Journal The Dovenschmidt Quarterly, Issue 3 2013
Keywords civil litigation, discovery, human rights, multinationals
Authors R.R. Verkerk
AbstractAuthor's information

    This article explores the degree in which civil procedural rules may promote transparancy from multinationals about human rights policies and allegations of human rights violations.


R.R. Verkerk
Remme Verkerk practices law at Houthoff Buruma (Rotterdam).
Article

Access_open The Conflict Minerals Rule

Private Alternatives?

Journal The Dovenschmidt Quarterly, Issue 3 2013
Keywords corporate social responsibility, conflict minerals, codes of conduct, contract law
Authors A.L. Vytopil
AbstractAuthor's information

    This article discusses Section 1502 of the Dodd Frank Act in respect of the transparency certain American companies are to provide in respect of conflict minerals and the Rule drawn up by the Securities and Exchange Commission following this legislation. It explains the requirements it poses on companies. Moreover, it highlights some of the societal criticism in respect of the Securities and Exchange Commission Rule, the legal challenge of this Rule and the subsequent court verdict by the District Court for the District of Columbia. Finally, it elaborates upon private regulatory initiatives that could provide viable alternatives to conflict minerals legislation, and it concludes that for the Netherlands, private regulation would probably be more effective than legislation comparable to Section 1502 of the Dodd Frank Act.


A.L. Vytopil
Louise Vytopil, LL.B MA MSc, is a Ph.D.-candidate and assistant-professor at Utrecht University’s Molengraaff Institute for Private Law.
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.

Lucas Lixinski
Lecturer, University of New South Wales (Sydney, Australia); PhD in Law, European University Institute (Florence, Italy).
Article

Access_open Through the Looking Glass of Global Constitutionalism and Global Administrative Law

Different Stories About the Crisis in Global Water Governance?

Journal Erasmus Law Review, Issue 1 2013
Keywords global water governance, global constitutionalism, global administrative law, water crisis, integrated water resources management
Authors Mónika Ambrus
AbstractAuthor's information

    In addition to (or sometimes rather than primarily) attributing it to water scarcity, water crisis has been described as a ‘crisis of governance’; with the word ‘crisis’ also indicating that water governance lacks (full) legitimacy. The article undertakes the task to analyse the current status of global water governance (GWG) from the perspective of two competing theories relating to the legitimacy of global governance, namely global constitutionalism (GC) and global administrative law (GAL). Having mapped the current legal framework of GWG from these two perspectives, it is discussed how these theories might shape GWG and how this shaping could contribute to solving the water crisis. In addition, it is also explored whether reading one of the most accepted proposals for legitimising global water governance, the concept of ‘integrated water resources management’ (IWRM), through the lenses of either GC or GAL would have an impact on how this concept is interpreted, and whether it can be a useful mechanism to address the water crisis. The use of two theories analysing the same subject matter provides interesting insights into global water governance and the nature of the water crisis as well as the relationship between these two theories.


Mónika Ambrus
Assistant professor of public international law at the Erasmus School of Law, Erasmus University Rotterdam.
Article

Access_open The Value of Narratives

The India-USA Nuclear Deal in Terms of Fragmentation, Pluralism, Constitutionalisation and Global Administrative Law

Journal Erasmus Law Review, Issue 1 2013
Keywords India-US Nuclear Deal, Nuclear Energy Cooperation, Non-Proliferation Treaty, Fragmentation, Constitutionalisation, Pluralism, Global Administrative Law
Authors Surabhi Ranganathan
AbstractAuthor's information

    ‘Fragmentation’, ‘pluralism’, ‘constitutionalisation’ and ‘global administrative law’ are among the most dominant narratives of international legal order at present. Each narrative makes a descriptive claim about the current state of the international legal order, and outlines a normative vision for this order. Yet we must not lose sight of the conflicts between, and the contingency of these, and other narratives. This article seeks to recover both conflicts and contingency by showing how each may be used to explain a given event: the inauguration of a bilateral civil nuclear cooperation between the United State and India, better known as the ‘India-US nuclear deal’. I explain how the four narratives may be, and were, co-opted at different times to justify or critique the ‘deal’. This exercise serve two purposes: the application of four narratives reveal the various facets of the deal, and by its example the deal illuminates the stakes attached to each of the four narratives. In a final section, I reflect on why these four narratives enjoy their influential status in international legal scholarship.


Surabhi Ranganathan
Junior Research Fellow, King’s College/Lauterpacht Centre for International Law, University of Cambridge.
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.
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 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.
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