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Article

Unwrapping the Effectiveness Test as a Measure of Legislative Quality

A Case Study of the Tuvalu Climate Change Resilience Act 2019

Journal European Journal of Law Reform, Issue 1 2021
Keywords effectiveness test, legislative quality, drafting process, Tuvalu Climate Change Resilience Act 2019
Authors Laingane Italeli Talia
AbstractAuthor's information


Laingane Italeli Talia
Laingane Italeli Talia is Senior Crown Counsel, Attorney General’s Office of Tuvalu
Title

Parliamentary Follow-up of Law Commission Bills

An Irish Perspective

Journal European Journal of Law Reform, Issue 2 2020
Keywords law reform, legislation, Ireland, drafting, parliament
Authors Ciarán Burke
AbstractAuthor's information

    This article seeks to present a brief outline of the various means through which the draft bills and recommendations drafted by the Law Reform Commission of Ireland and published in its reports are followed up by the Irish Parliament, the Oireachtas. The Commission’s position within the Irish legislative architecture is explained, as is the process through which bills become laws in Ireland. The Commission, it is noted, occupies an unusual role. Although there is no requirement for its publications to result in legislation, ultimately the lion’s share of its output is followed up on in the legislative process in one form or another, with its publications attracting the attention of both the government and opposition parties. The challenges and advantages presented by operating within a small jurisdiction are also outlined, while some thoughts are offered on the Commission’s future.


Ciarán Burke
Professor of International Law, Friedrich Schiller Universität, Jena, and former Director of Research at the Law Reform Commission of Ireland. The author would like to thank Alexandra Molitorisovà for her help in preparing this article.
Article

Perspectives on Comparative Federalism

The American Experience in the Pre-incorporation Era

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords 14th amendment, anti-federalists, Barron v. Baltimore (1833), Board of Education and other Cases (1954), Civil Rights Cases (1883), Bill of Rights, Brown v. Constitutional Convention (1787), Federalists, Holmes v. Jennsion (1840), Plessy v. Ferguson (1896), The Federalist (1787-1788)
Authors Kenneth R. Stevens
AbstractAuthor's information

    Today the Bill of Rights is understood to limit not only the federal government but also the power of the states to infringe on the civil liberties of citizens. This was not always the case. In the early days of the republic, most Americans feared federal authority far more than the states. This remained the case until passage of the 14th amendment to the Constitution followed by a series of interpretations over the years by the Supreme Court that broadened its scope. Some delegates at the convention of 1787 and other critics during ratification complained that the Constitution did not include a bill of rights, but others objected that the people needed such protections from government power. It became clear, however, that ratification could not be attained without inclusion of a Bill of Rights, which were adopted as amendments in 1791. In 1833, the Supreme Court ruled, in Barron v. Baltimore, that the provisions of the Bill of Rights imposed restrictions only on the federal government and not on the states. Passage of the 14th amendment in 1868 made the Bill of Rights restrictions on the states. Over the years, federal courts increasingly broadened the authority of the Bill of Rights as limitations on the states.


Kenneth R. Stevens
Professor, AddRan College of Liberal Arts, Texas Christian University. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

The Mechanisms Used to Review Existing Legislation in the Civil Law System

Case Study – Italy

Journal European Journal of Law Reform, Issue 3 2016
Keywords codification, consolidation, law revision, legal restatement, legislative scrutiny
Authors Enrico Albanesi
AbstractAuthor's information

    The aim of this article is to describe the mechanisms that are used in the civil law system to review existing legislation. The case study will be based on the Italian system. In the civil law system we are not familiar with the concept of law reform, in the sense used in the common law system, because there is no law reform agency in the civil law world. The mechanisms used to review the existing law in civil law systems are: codification, consolidation, repeal, law revision and legal restatement. To understand how the mechanisms used to review existing legislation work in Italy, an overview of the Italian law-making and drafting processes will be carried out here, underlying the bad impact that the Italian equal bicameralism has on the quality of legislation and also on the mechanisms to review existing legislation. After this, the article will focus on the specific tools that are used in Italy for codification and consolidation (decreti legislativi), for law revision (the so-called taglia-leggi) and for legal restatement (examining the role of the Consiglio di Stato). Particular attention will also be paid to the parliamentary scrutiny on the quality of legislation. Finally, the article will focus on the constitutional amendment process Italy carried out in 2014-2016 and that was expected to fundamentally change the Italian law-making process, superseding the equal bicameralism arrangement (a referendum on this was held on 4 December 2016, and the reform was rejected by the Italian people).


Enrico Albanesi
Lecturer in Constitutional Law at the University of Genoa (Italy) and Associate Research Fellow at the Institute of Advanced Legal Studies (IALS), University of London. Co-leader of the IALS Law Reform Project.
Article

Structure of Legislation: A Paradigm for Accessibility and Effectiveness

Journal European Journal of Law Reform, Issue 3 2015
Keywords effectiveness of legislation, structure of legislation, accessibility of legislation, quality drafting, clarity
Authors Elohor Onoge
AbstractAuthor's information

    The aim of this article is to examine how the structure of legislation can nurture accessibility and effectiveness of legislation.
    It explores whether the legislative drafter in carrying out the task of drafting can nurture effective communication of the policy maker’s intent to the targeted audience by making use of the structure of legislation as a tool, to ensure the legislation is accessible to the end user, and foster effectiveness.
    The third and fourth stage of Thornton’s stages of the drafting process – design and composition – would be examined and also Peter Butt’s types of structure, which relates to the drafting of legal documents but would be applied in this paper, to the drafting of legislation.


Elohor Onoge
Elohor Onoge LLM is a Nigerian legislative drafter working for the Federal Parliament. Email: stephyrook@gmail.com.
Article

Consolidating Family Law in Kenya

Journal European Journal of Law Reform, Issue 2 2015
Keywords family law, matrimonial, marriage, equality, reform
Authors Dr. Lucyline Nkatha Murungi
AbstractAuthor's information

    Following the adoption of a new Constitution in 2010, Kenya embarked on an extensive process of law reform in order to give effect to the provisions of the Constitution. Accordingly, in 2014, two main statutes were adopted in the area of family law: the Matrimonial Property Act and the Marriage Act. In addition, parliamentary discussion of a Bill on domestic violence was underway as of March 2015. The main outcome of the Marriage Act is the consolidation of family laws that were previously covered in multiple statutes, customary law, and common law in one Act. The Matrimonial Property Act is the first Kenyan legislation on the subject, and is therefore a critical development in Kenya’s family law. The new family laws embrace a number of significant developments at the national and international levels in relation to matrimonial relations. However, the new laws also raise concerns in a number of areas of family law including; the equality of men and women in marriage, the capacity of persons with disabilities to consent to marriage, the rights of spouses to matrimonial property, kinds of marriage, and registration of marriages. This article discusses the approach of these laws to selected issues in marriage and matrimonial property, and highlights areas of concern in this regard.


Dr. Lucyline Nkatha Murungi
Dr. Murungi is a Kenyan national, an advocate of the High Court of Kenya, and a researcher in human rights with a keen focus on children and disability rights. She holds a Master of Laws in human rights from the University of Pretoria and a Doctorate in Law from the University of the Western Cape (UWC), South Africa. Dr. Murungi is currently the Head of the Children and the Law Programme at the African Child Policy Forum (ACPF) based in Addis Ababa – Ethiopia, and a Research Fellow of the Community Law Centre, UWC.
Article

Goodwill/Intangibles Accounting Rules, Earnings Management, and Competition

Journal European Journal of Law Reform, Issue 1 2015
Keywords fraud, mergers and acquisitions, Games economic psychology, regulation, goodwill and intangibles
Authors Michael I.C. Nwogugu
AbstractAuthor's information

    Intangible assets account for 60%-75% of the market capitalization value in most developed stock markets around the world. The US GAAP and IFRS Goodwill and Intangibles accounting regulations (ASC 805, Business Combinations; ASC 350, Goodwill and Intangible Assets; IFRS-3R, Business Combinations; and IAS 38, Accounting for Intangible Assets) are inefficient and create potentially harmful psychological biases. These regulations facilitate earnings management and money laundering, reduce competition within industries, and are likely to increase the incidence of fraud and misconduct. This article introduces a new goodwill/intangibles disclosure/accounting model that can reduce the incidence of fraud, information asymmetry, moral hazard, adverse selection, and inaccuracy. The article also introduces new economic psychological theories that can explain fraud, misconduct, and non-compliance arising from the implementation of the goodwill/intangibles accounting rules.


Michael I.C. Nwogugu
Address: Enugu, Enugu State, Nigeria. Emails: mcn2225@aol.com; mcn111@juno.com. Phone: 234-909-606-8162.
Article

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

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

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


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

The Drafter’s Role in the Drafting Process

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

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


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

Legislative Techniques in Rwanda

Present and Future

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

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


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

Current Developments in the National Laws of Maintenance

A Comparative Analysis

Journal European Journal of Law Reform, Issue 1 2012
Keywords child maintenance, maintenance after divorce, calculation of maintenance, enforcement of maintenance claims, social security benefits
Authors Dieter Martiny
AbstractAuthor's information

    Maintenance law in European jurisdictions is in a state of constant transformation. Recent reforms, however, show some areas of major concern. In child maintenance law, particularly joint custody of the parents and an alternating residence of the child make the need for a better calculation of maintenance more apparent. The use of guidelines with tables and formulas is on the rise. In maintenance after divorce, the growing influence of the principle of self-sufficiency is leading to reductions of the maintenance payments made to former spouses. Enforcement of maintenance claims, the role of the State and the relationship with social security benefits remain difficult.


Dieter Martiny
Professor emeritus, European University Viadrina, Frankfurt (Oder)/Hamburg. A shorter version was presented at the Annual Conference on European Family Law of the Academy of European Law in Trier, 30 September 2011.

Terence Sir Etherton
Chairman of the Law Commision.
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

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
AbstractAuthor's information

    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


Song Lianbin
Song Lianbin is Professor in Law, Wuhan University, Wuhan, China.

Sophia Juan Yang
Sophia Juan Yang is Dr. iur. (University of Basel, Switzerland), LL.M. (Wuhan), former Research Assistent for Global Sales Law Project.
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