In considering how society generally is regulated, most times focus is always on Acts of parliament that are passed by the legislative arm of government. However, delegated legislation is another aspect of law making that is of immense importance for the regulation of any given society. This form of lawmaking being a deviation from the norm has some challenges in terms of control. This article seeks to examine some of these challenges emphasising that adequate parliamentary scrutiny will prevent the harbouring of bad-quality legislation. |
Article |
Delegated Legislation in Nigeria: The Challenges of Control |
Journal | European Journal of Law Reform, Issue 3 2015 |
Keywords | delegated legislation, parliament, control, quality, parliamentary scrutiny |
Authors | Jemina Benson LL.M |
AbstractAuthor's information |
Statutory interpretation is quickly becoming the primary function of our courts. Ambiguity, unexpected scenarios, and drafting errors in legislation compound this challenging task, obliging many judges to turn to debate transcripts and other legislative materials in search of our elected representatives’ intent. |
Book Review |
Book Review |
Journal | European Journal of Law Reform, Issue 3 2015 |
Article |
Financial Crime Prevention and ControlThe Reforms of a ‘Unique’ Jurisdiction under EU Law and International Standards |
Journal | European Journal of Law Reform, Issue 4 2015 |
Keywords | Vatican financial system, money laundering, terrorist financing, 3rd AMLD, FATF Recommendations |
Authors | Francesco De Pascalis |
AbstractAuthor's information |
Between 2011 and 2014, the Vatican City State (VCS) experienced a reform process which dramatically changed its financial system. The process is still ongoing, and its goal is to establish an anti-money laundering and counter-terrorism financing (AML/CTF) system. Importantly, this system will be based on the AML/CTF EU legislation and international standards. These facts are noteworthy. First, the reforms cast light on the main Vatican financial institutions against the background of the secrecy that has always characterized their functioning and business operations. Accordingly, there is now more transparency and information about the Vatican financial system. Second, the relevant EU law and international standards are tools through which the VCS can, for the first time, join an international network of countries, sharing and applying the same rules against money laundering (ML) and terrorist financing (TF). This is of extraordinary importance for a jurisdiction like the VCS, which has never referred to European or international principles in its rule-making. In particular, the openness to EU law and international standards stimulates investigating the reasons behind these changes and the impact that these sources of law are having on a jurisdiction regarded as ‘unique’ in the world. |
Article |
Corruption and Controls |
Journal | European Journal of Law Reform, Issue 4 2015 |
Keywords | corruption, controls, inspections, administration, regulation |
Authors | Maria De Benedetto |
AbstractAuthor's information |
Anti-corruption is a relatively recent policy which calls for controls. They represent the most effective means in rebalancing institutions which are not fully informed: ‘secrecy’, in fact, characterizes infringements and corrupt behaviour. |
Article |
Commonalities in the English Tort and French Criminal Wrong of Defamation |
Journal | European Journal of Law Reform, Issue 4 2015 |
Keywords | defamation, tort, crime, comparative, path dependence |
Authors | Mathilde Groppo |
AbstractAuthor's information |
This article considers the extent to which the nature of the regulation – tortious or criminal – influences the substantive content of the rules in England and France. It argues that the English and French regulatory features are the result of path dependence. Consequently, while they have led to substantive differences, they do not prevent the emergence of a shared approach to the wrong. |
Article |
Can Imprisonment Be Cheaper? The Case for Private Prisons |
Journal | European Journal of Law Reform, Issue 4 2015 |
Keywords | costs, criminal law, law and economics, private prisons, privatization |
Authors | Elena Kantorowicz-Reznichenko |
AbstractAuthor's information |
Custody is the most expensive method of punishment in the Western world, as compared to other alternatives. Although expensive, prison is an indispensible instrument to deal with judgement proof or dangerous offenders. Hence, by using the law and economics approach, this article explores prison privatization as an instrument for less expensive incarceration. This method has the potential to reduce the prison costs without hampering its quality. However, a restructuring of the current contracts is needed to achieve this purpose. The attention given to the topic of private prisons by the law and economics scholars, especially in the European context, is limited, and this article attempts to fill this gap. The present article applies arguments from the bureaucracy and political science literature to explain the inefficiencies of public prisons. Subsequently, the potential problems of private prisons are presented through the principle-agent model and solutions are offered. |
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The Incorporation of Intentional Parentage by Female Same-Sex Couples into National Parentage LawsA Comparison between Danish and Dutch Law |
Journal | European Journal of Law Reform, Issue 2 2015 |
Keywords | same-sex parentage, family law, comparative law |
Authors | professor Christina G. Jeppesen de Boer and professor Annette Kronborg |
AbstractAuthor's information |
The incorporation of intentional parentage by female same-sex couples in Danish and Dutch law in 2013 has taken place on the premises of the existing parentage law. In Dutch law, the second mother may automatically become the legal parent (formal relationship – anonymous donor) or she may become the legal parent in all other situations by recognition with consent of the mother. In Danish law, the second mother’s parentage may be established in a simple registration procedure, if she has consented to the act of assisted reproduction prior to treatment. When use has been made of a known donor there is no direct presumption favouring the known donor or the second mother in either country. Danish law provides a contractual understanding to be made prior to treatment while Dutch law depends upon the initiative of the parties and to whom the mother gives consent to recognition – with subsequent discretionary power of the court to modify the result. The main difference we associate with a systemized specific legislative approach (Denmark) and discretionary powers of the court to correct the outcome (the Netherlands). |
Article |
Pursuing the Best Interest of Children in Non-Traditional FamiliesA Comparative Overview |
Journal | European Journal of Law Reform, Issue 2 2015 |
Keywords | best interest of the child, equality, non-traditional families, new bills, comparative analysis |
Authors | Denise Amram |
AbstractAuthor's information |
The need to build a legal paradigm corresponding to the current evolution of society is one of the most important challenges that family lawyers are facing in the last years. In this regard, this paper illustrates the new Italian, French, and Irish reforms aimed at pursuing the best interest of the child within non-traditional families. |
Article |
Identifying the Impetus behind the Europeanization of the Private International Law Rules on Family Matters and Succession |
Journal | European Journal of Law Reform, Issue 2 2015 |
Keywords | area of freedom security and justice, EU citizenship, free movement of persons, international family matters, international succession |
Authors | Jacqueline Gray PhD |
AbstractAuthor's information |
The EU is currently in the midst of unifying the private international law rules on family matters and succession. This article seeks to explain this expansion into essentially non-economic territory. In order to do so, it presents the ideological, problem-based, and legal considerations that appear to lie at the heart of legislative action in these fields. However, as will become apparent, it is the role of the Member States that is crucial in guiding this process. |
Article |
To Recognize or Not to Recognize? That Is the Question!Motherhood in Cross-Border Surrogacy Cases |
Journal | European Journal of Law Reform, Issue 2 2015 |
Keywords | cross-border surrogacy, motherhood, private international law, ordre public, European Human Right Convention |
Authors | Stefanie Sucker PhD |
AbstractAuthor's information |
This article describes the status quo in cross-border surrogacy cases, more specifically how national courts deal with the recognition of parenthood validly established abroad. As the recognition of motherhood is deemed to violate the national ordre public, the solutions so far, i.e. recognition of fatherhood and adoption, will be examined. Moreover, the arguments for an alleged ordre public-violation concerning motherhood will be presented. Finally, the question whether the European Human Right Convention has an impact on the interpretation of the best interest of the child will be answered. |
Article |
Legal Motherhood and Parental ResponsibilityA Comparative Study on the Tensions between Scientific Knowledge, Social Reality and Personal Identity |
Journal | European Journal of Law Reform, Issue 2 2015 |
Keywords | motherhood, child’s right to identity, baby-box, secret birth, confidential birth |
Authors | Prof. dr. Christine Budzikiewicz and Dr. Machteld Vonk |
AbstractAuthor's information |
For the past 15 to 20 years there has been intense discussion in many European countries how mothers in a crisis situation can be prevented from abandoning or even killing their new born babies. Baby-boxes have been installed in a number of countries and/or possibilities for anonymous birth have been discussed or introduced. The Committee on the Rights of the Child expressed concern over these developments and stated that both developments infringe on the child’s right to know its origins. Both Germany and the Netherlands have taken steps to protect new mothers and their babies in crisis situations by introducing a form of secrecy surrounding the mother’s identity. In Germany this has taken the form of a recently introduced law that keeps the birth and the identity of the mother confidential, in the Netherlands this has taken the form of a protocol drawn up by professionals which aims to keep the birth and the mother’s identity secret. This article will compare and critically discuss these developments in Germany and the Netherlands. |
Article |
Article 15 Brussels II-bisTwo Views from Different Sides of the Channel |
Journal | European Journal of Law Reform, Issue 2 2015 |
Keywords | international jurisdiction, transfer of proceedings, international parental responsibility |
Authors | Ian Curry-Sumner and Maria Wright |
AbstractAuthor's information |
Article 15 Brussels II-bis provides for the transfer of jurisdiction from one Member State to another. This contribution examines the conditions and practice surrounding the application of Article 15 Brussels II-bis from two jurisdictions, namely the Netherlands, and England and Wales. From this comparison it is clear that there are evident divergent viewpoints as to the approach to be taken with Article 15 Brussels II-bis. This article is, therefore, aimed at bringing those differences in approach to the forefront so as to assist the European legislature in the ongoing evaluation of the Brussels II-bis Regulation. |
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. |
Article |
Child Participation in Family Law Matters Affecting Children in South Africa |
Journal | European Journal of Law Reform, Issue 2 2015 |
Keywords | child participation, family law, legal representation, Family Advocate, curator ad litem |
Authors | LLE, LLM Kelly-Anne Cleophas and Usang Maria Assim |
AbstractAuthor's information |
The right of children to participate in all matters affecting them is considered to be one of the fundamental principles guiding the understanding, interpretation, and application of all children’s rights. In terms of international law, this right is contained in Article 12 of the United Nations Convention on the Rights of the Child. Similar provisions are contained in the African Charter on the Rights and Welfare of the Child. Child participation establishes the right of every child to freely express his or her views, in all matters affecting him or her, as well as the ‘subsequent right’ for those views to be given due weight, in line with the age and maturity of the child involved. The right of the child to be heard, as expressed in the Convention on the Rights of the Child represents a shift in perspectives from children as ‘incomplete human beings’ to children as subjects of rights and not merely objects of legal protection. This article provides an overview of the manner in which the principle of child participation is incorporated in some family law matters affecting children in South Africa. |
Article |
The Minor in Divorce-Related Judicial Proceedings in the Netherlands and GermanyRights to a Special Representative and to Be Heard in Person |
Journal | European Journal of Law Reform, Issue 2 2015 |
Keywords | procedural (in)capacity, conflict of interests, the right to a special representative, the right to be heard in person |
Authors | Maximilian Strutz PhD and Evelien Verhagen PhD |
AbstractAuthor's information |
This contribution examines the extent to which a minor is involved in divorce-related judicial proceedings in the Netherlands and Germany. The discussion will concentrate exclusively on the rights of the minor to a special representative and to be heard in person. The purpose of this contribution is to identify the uncertainties and bottlenecks that arise in both legal systems. |
Article |
The Rule of Law Reform and Judicial Education in PakistanSearch for a Model |
Journal | European Journal of Law Reform, Issue 1 2015 |
Keywords | judicial education, rule of law reform, Khyber Pakhtunkhwa, militancy, Pakistan |
Authors | Khurshid Iqbal |
AbstractAuthor's information |
The article investigates the intrinsic and instrumental roles of judicial education in broader contours of the rule of law theory and reform practice in a developing country. It focuses on: firstly, the relationship between judicial education and the rule of law theory and reform practice; secondly, whether and how judicial education can promote the rule of law; and third, the challenges to a successful judicial education in strengthening the rule of law. Examining Pakistan as a case study, the article explores challenges to judicial education in Pakistan and critically assesses Pakistan’s rule of law reform efforts to overcome those challenges. Evidence shows that key challenges to judicial education in Pakistan are lack of a national judicial educational vision and a well thought out policy, coordinated efforts to training needs assessment, curriculum and faculty, research and learning best practices, as means of development and innovation. Of special concern is the role of judicial education in promoting the rule of law to address security issues embedded in (bad) governance. The article finds that in view of its initial limited success, the judicial academy of Pakistan’s terrorism-hit Khyber Pakhtunkhwa (KP) province may play a role model to improve judicial services and thereby help promote the rule of law in a post-conflict society. |
Article |
Un-Constitutionality of the Dodd-Frank Act |
Journal | European Journal of Law Reform, Issue 1 2015 |
Keywords | Dodd-Frank Act, enforcement games, systemic risk, financial services regulation, constitutional law |
Authors | Michael I.C. Nwogugu |
AbstractAuthor's information |
‘Restoring American Financial Stability Act’ of 2010 (‘RAFSA’ or the ‘Dodd-Frank Act’) was the first set of statutes in any country that attempted to simultaneously address the Global Financial Crisis, the national securities law framework, the structure of the executive branch of the federal government, and delegation of powers to federal government agencies (to the detriment of state governments). Other countries have enacted statutes that are similar to RAFSA. However, RAFSA and similar statutes in many countries are inefficient and have failed to address the fundamental problems in financial systems, and parts of RAFSA are unconstitutional. |
Article |
Regulating Genetic Discrimination in the European UnionPushing the EU into Unchartered Territory or Ushering in a New Genomic Era? |
Journal | European Journal of Law Reform, Issue 1 2015 |
Keywords | genetics, regulation, discrimination, data protection, European Union |
Authors | Aisling de Paor and Delia Ferri |
AbstractAuthor's information |
Against the backdrop of rapid developments in genetic science and technology, one of the main concerns arising in this area is the potential use of genetic testing to discriminate, especially in the employment and insurance contexts. Employers and insurance companies may use the results of genetic tests to discriminate (primarily for economic advantage), based on perceptions of future health risks or future disabilities. This article explores the scope for an EU to effectively address genetic discrimination and the misuse of genetic information. It first provides a theoretical overview of the choice of regulatory frameworks. It then examines the scope and protection of current non- discrimination laws in the EU and investigates the possibility of an EU level response to address the misuse of genetic information. |