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Article

Digital Equals Public

Assembly Meetings Under a Lockdown Regime

Journal European Journal of Law Reform, Issue 4 2020
Keywords COVID-19 regulation, temporary legislation, sunset clauses, digitalization, digital democracy, local democracy, experimental legislation
Authors Lianne van Kalken and Evert Stamhuis
AbstractAuthor's information

    In this article we examine the Dutch emergency legislation for local democracy. In response to the COVID-19 pandemic in the Netherlands, the Temporary Act for digital meetings for local/regional government tiers was enacted. The legislature introduced a system of digital debate and decision-making for municipal and provincial councils, the democratically elected assemblies at the local and regional levels. At the same time the Ministry of the Interior and Kingdom Relations set up an evaluation committee to monitor and evaluate the working of the local and provincial governments with this temporary legislation.
    This article discusses the content and application of the temporary provisions for deliberation and decision-making on a digital platform. The purpose of the legislation is to create possibilities for the elected representatives to continue their work during the lockdown. We examine the design and structure of the legislation and disclose the evaluation results so far. The arrangements aim for secure, transparent and reliable democratic practices. Early evidence pertaining to the effects of the Act show that it works effectively only up to a certain level. We critically discuss the sunset clause in the Act and plead against function creep. Moreover, the expectations now and in the future from continuous digitalization of this part of the democratic process should be modest. On the basis of our analysis of the characteristics of the legislation and the effects on the political work of the representatives, we conclude that the current form of digitalization does not provide for the interaction between representatives and their constituencies and the communities at large.


Lianne van Kalken
Lianne van Kalken is lecturer and researcher constitutional law in Erasmus School of Law. She was a member of the evaluation committee, but contributes to this article in a personal capacity. For further affiliations see http://www.linkedin.com/in/liannevankalken/.

Evert Stamhuis
Evert F. Stamhuis is chair Law & Innovation at Erasmus School of Law and senior fellow of the Jean Monnet Centre of Excellence on Digital Governance. See for other affiliations https://www.linkedin.com/in/evertstamhuis/
Article

Governments as Covid-19 Lawmakers in France, Italy and Spain

Continuity or Discontinuity

Journal European Journal of Law Reform, Issue 4 2020
Keywords Covid-19, emergency legislation, executive lawmaking, parliaments, decree-laws and ordinances
Authors Elena Griglio
AbstractAuthor's information

    Executive dominance in Covid-19 lawmaking has been a major trend worldwide. Governments have leveraged emergency prerogatives to boost their legislative powers, often sidelining the role of parliaments. The impact of executive lawmaking on fundamental liberties has been unprecedented. However, government’s capacity to exercise full legislative powers is not absolutely new to many European countries.
    This trend is analysed in the article comparing practices in the pandemic and in normal times, not specifically related to a state of emergency. To this end, three countries have been selected because of their constitutional clauses allotting lawmaking powers to the government even outside of emergency situations. This refers to the decree-laws in Italy and Spain and the ordonnances in France. The question addressed is whether there are relevant differences in the use made of these mechanisms during the pandemic.
    The results of this comparative analysis demonstrate that there is much continuity in the executive’s reliance on these mechanisms. However, discontinuity may be detected on the ground of the exceptional impact produced on constitutional rights and on the substantive values that legislation should protect. Therefore, from the perspective of the rollback of the emergency legislation, the role of parliaments, based on the core difference in the democratic status between lawmaking and legislation, turns out to be crucial.


Elena Griglio
Elena Griglio is Senior Parliamentary Official of the Italian Senate and Adjunct Professor at LUISS University, Rome.
Article

Access_open New Sales and Contract Law in Argentina and France

Models for Reform Inspired by the CISG and the PICC?

Journal European Journal of Law Reform, Issue 3 2020
Keywords contracts, sales, law reform, CISG, UNIDROIT Principles, Argentina, France, comparative law
Authors Edgardo Muñoz and Inés Morfín Kroepfly
AbstractAuthor's information

    The Argentine and the French civil codes have recently undergone substantial modifications to their contract law provisions. These novel statutes could serve as models for future B2B contract law reforms in Latin American jurisdictions and beyond, as former Argentine and French laws have done in the past. The authors offer a contribution that paves the way in that direction with a systematic comparative analysis. As a starting point, this article unveils the influence that the modern unified laws on contracts (UNIDROIT Principles on International Commercial Contracts (PICC) and United Nations Convention on Contracts for the International Sale of Goods of 1980 (CISG)) have in Argentina’s and France’s new contract law. It also highlights the most obvious similarities and differences in both sets of rules. This contribution goes beyond simple tertium comparisons; the authors analyse which of the two laws offers better, or more effective, rules to achieve the desired contract law functions in various matters. Readers are provided with the best rule or solution to address the problem in question and, as the authors hope, they should conclude that both models provide for a range of complementary solutions for modern contract law reforms.


Edgardo Muñoz
Professor of Law, Universidad Panamericana. School of Law. Calzada Álvaro del Portillo 49, Zapopan, Jalisco, 45010, Mexico. Ph.D. (Basel), LL.M. (UC Berkeley), LL.M. (Liverpool), LL.B. (UIA Mexico), DEUF (Lyon), emunoz@up.edu.mx.

Inés Morfín Kroepfly
Ines Morfin Kroepfly, J.D., Universidad Panamericana, Guadalajara.
Article

The ECB’s Independence and the Principle of Separation

Journal European Journal of Law Reform, Issue 3 2020
Keywords ECB, Banking Supervision, Banking Supervision Centralization, Prudential Supervision, European Union, EU Law, Banking Union, Central Banking Independence, SSMR, SSMR
Authors Pamela Nika
AbstractAuthor's information

    This article addresses the question of whether the European Central Bank’s (ECB’s) involvement in banking supervision is compatible with its independent status as provided by the European Union’s (EU’s) primary law, specifically with reference to the principle of separation between the ECB’s monetary policy and supervisory powers. It is found that the Single Supervisory Mechanism (SSM) Regulation provides the ECB with a set of prerequisites in pursuit of its supervisory objectives under a high level of independence. However, the article argues that the current EU regulatory framework poses risks to the overall independence of the ECB. In particular, the principle of separation, as one of the mechanisms aimed at safeguarding the ECB’s independence, is not fully achieved. In addition, the boundaries and application of macro-prudential operation of the ECB in both the SSM and European Systemic Risk Board (ESRB) remain blurry and uncertain. The article concludes by suggesting that the only way to safeguard the independence of the ECB is by carefully revising the ECB’s competencies, which may require treaty amendment.


Pamela Nika
Dr Pamela Nika is a lecturer in Corporate and Finance Law at Brunel University London.
Article

Access_open Parliamentary Scrutiny of Law Reform in Albania

Bodies, Procedures and Methods

Journal European Journal of Law Reform, Issue 2 2020
Keywords Parliament of Albania, law reform, Standing Committees, European Integration, Council on the Legislation, National Council for European Integration, Committee on European Integration
Authors Dr. Oriola Sallavaci
AbstractAuthor's information

    This article throws light on the parliamentary scrutiny of law reform in Albania, which so far has not received sufficient attention in academic literature. The article provides a review of the bodies, procedures and mechanisms for the scrutiny of legal reform, as specified in the Constitution of Albania, Parliament’s Rules of Procedure and other specific statutes. Research on the activities of these bodies during the past three years, as reported by the official sources, throws light on the problematic aspects of their work and enables recommendations to be made which will lead to a more effective role of Parliament in legal reform. This is paramount considering the past few years of political instability in the country, at a time when Albanian’s European Integration is at stake


Dr. Oriola Sallavaci
Dr. Oriola Sallavaci is Senior Lecturer in Law, University of Essex, United Kingdom. Oriola holds, inter alia, an LLB (1999) and an LLM (2003) from the University of Tirana, Albania, where she taught law for over five years. She is a qualified Albanian advocate and an expert on Albanian law. An earlier version of this article was presented at the IALS Workshop ‘Parliamentary Scrutiny of Law Reform’, held at IALS, London, on 4 November 2019. The author wishes to thank Jonathan Teasdale and Enrico Albanesi for their comments on an earlier draft.
Article

Law Reform Bills in the Parliament of the United Kingdom

Journal European Journal of Law Reform, Issue 2 2020
Keywords law reform, consolidation, statute law, parliament, Law Commission
Authors Andrew Makower and Liam Laurence Smyth
AbstractAuthor's information

    The officials responsible for the procedures for scrutiny of proposed legislation in the UK Parliament and for the accuracy and integrity of legislative text describe how the UK Parliament scrutinizes consolidation and law reform bills and the government’s law reform programme, test the proposition that law reform is impeded by a shortage of parliamentary time, and survey ways in which Parliament could encourage and facilitate such legislation.


Andrew Makower
Andrew Makower, Clerk of Legislation, House of Lords.

Liam Laurence Smyth
Liam Laurence Smyth, Clerk of Legislation, House of Commons.
Article

Re-examining the Relationship between Parliament and the Law Reform Commissions

An Australian Perspective

Journal European Journal of Law Reform, Issue 2 2020
Keywords law reform commissions, legislative process, parliamentary scrutiny, Australia
Authors Jacinta Dharmananda
AbstractAuthor's information

    In Australia, statutory law reform commissions answer to parliament, albeit through a senior government minister. But once the commission has fulfilled its obligations to parliament, what are the obligations of parliament to scrutinize, or even to consider, the commission’s recommendations? Further, what are its obligations in relation to proposed legislation that contains law reform proposals? This article addresses those questions in an Australian context, with a focus on the generalist law reform commissions.


Jacinta Dharmananda
Senior Lecturer, Law School, University of Western Australia; PhD Candidate, College of Law, Australian National University. The research reflected in this article is supported by an Australian Government Research Training Program (RTP) Scholarship. ORCID ID 0000-0001-5163-3340
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.
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