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Article

Codification in a Civil Law Jurisdiction: An Italian Perspective

Journal European Journal of Law Reform, Issue 4 2017
Keywords civil law jurisdictions, codification, consolidation, legislative drafting, judicial review
Authors Enrico Albanesi
AbstractAuthor's information

    The aim of this article is to describe the mechanism of codification in a civil law jurisdiction. The case study will be based on the Italian system. The history and developments of the Italian codification will also be described here.
    In Italy codification is called riassetto, it is normally carried out by the government but the changes to existing law must be within the strict boundaries of the principles and criteria set out by the parliament. By contrast, the mechanism to amalgamate existing texts dealing with a single topic without radical changes is called consolidamento. It is carried out by the government as delegated by parliament. However, as the tools to carry out riassetto and consolidamento are the same (decreto legislativo: a decree issued by the government, which is delegated by the parliament), it is not always easy to understand when the government is allowed to carry out consolidamento only or riassetto too. Actually, how fundamentally the government is allowed to change existing legislation depends on what the principles and criteria of the enabling Act of Parliament allows.
    A decreto legislativo that is not in compliance with the principles and criteria established by the Act of Parliament, could be declared void by the Corte costituzionale (the Italian Constitutional Court). Therefore, if the government exceeds the boundaries of consolidamento or riassetto, the decreto legislativo could be declared void.
    This essay will also focus on the different drafting techniques of consolidamento and riassetto from a theoretical perspective and from the point of view of the jurisprudence of the Consiglio di Stato and the Corte costituzionale. Finally, it will look at the drafting process for codes in Italy, underlying the differences with systems where law reform agencies have been established.


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

Codification in a Civil Law Jurisdiction: A Northern European Perspective

Journal European Journal of Law Reform, Issue 4 2017
Keywords codification, types, civil law, legal certainty, ICT
Authors Patricia Popelier
AbstractAuthor's information

    In western civil law jurisdictions, 19th century large-scale codification projects have made way for more specific, technical operations. While several terms for various operations are used – from coordination to consolidation or recasting – they all serve to compile normative texts within one single document for the sake of clarity and legal certainty. A more fundamental distinction can be made between formal and substantial codifications, the one more technical, the other large and fundamental. Substantial law reforms are problematized in this era of multilevel governance and digitalization. Nowadays, substantial codifications are essentially non-exhaustive, inconsistent, and fragmentized. Also, they rely upon formal consolidations, and generate new formal consolidations. While formal consolidations are still treated as logistic projects, more developed ICT tools may enable their transformation into continuous processes.


Patricia Popelier
Professor Constitutional Law and Legislative Studies, University of Antwerp.

Jonathan Teasdale
Jonathan Teasdale is an associate research fellow at the Institute of Advanced Legal Studies (University of London) in the Sir William Dale Centre for Legislative Studies, and co-leader (with Dr Enrico Albanesi) of the IALS Law Reform Project. He is a barrister (now non-practising) and former lawyer with the Law Commission for England and Wales, and one time was a local authority chief executive.
Article

The Reform and Harmonization of Commercial Laws in the East African Community

Journal European Journal of Law Reform, Issue 4 2017
Keywords law reform, harmonization of laws, commercial laws, legal transplants, East African Community
Authors Agasha Mugasha
AbstractAuthor's information

    The partner states in the East African Community (EAC) have modernized their commercial laws to claim their post-colonial identity and facilitate development. While law reform and the harmonization of laws are both methods of shaping laws, the national law reform programmes in the EAC mainly aim to ensure that the laws reflect the domestic socioeconomic circumstances, in contrast to the harmonization of national commercial laws, which focuses on the attainment of economic development. This article observes that the reformed and harmonized commercial laws in the EAC are mainly legal transplants of the principles of transnational commercial law that have been adapted to meet domestic needs and aspirations.


Agasha Mugasha
Professor of Law, University of Essex; and former Chairperson, Uganda Law Reform Commission 2011-2015.
Article

Fixed Book Price Regimes

Beyond the Rift between Social and Economic Regulation

Journal European Journal of Law Reform, Issue 3 2017
Keywords fixed book price policies (FBP), Brazil, Resale Price Maintenance (RPM), social regulation, antitrust law
Authors Carlos Ragazzo and João Marcelo da Costa e Silva Lima
AbstractAuthor's information

    Brazil is currently discussing the introduction of a nation-wide Fixed Book Price (“FBP”) policy, thus providing context for a discussion of its welfare benefits. There is a rift between the reasons for implementing FBP regimes, and those used to scrutinize them. In order for the debate surrounding the pros and cons of implementing FBP regimes to become more productive, one must investigate the links between the reasons for designing and enforcing such policies, on one side, and standard antitrust analysis, on the other. There are many interesting arguments at the table that both corroborate and compromise the case for an FPB policy. However, throughout history, these policies have experimented cognizable trends. The objective FBP regimes pursue and their design have changed subtly, yet relevantly throughout history. In our view, the current academic and public policy debate surrounding FBP regimes, in both countries considering adopting or revoking them, would benefit from an enhanced awareness of these trends and their policy implications. Ultimately, so would the antitrust analysis of these policies. We argue that a better grasp of these trends could potentially result in a more sober examination of the welfare risks associated with FBP policies.


Carlos Ragazzo
Carlos Ragazzo is Professor of Law at Fundação Getulio Vargas in Rio de Janeiro; he has a doctorate degree from Universidade do Estado do Rio de Janeiro (UERJ) and an LL.M from New York University School of Law.

João Marcelo da Costa e Silva Lima
João Marcelo da Costa e Silva Lima has an M.A. in Regulatory Law from Fundação Getulio Vargas in Rio de Janeiro.
Article

Regulatory Review of European Commission Impact Assessments

What Kind for Which Better Regulation Scenario?

Journal European Journal of Law Reform, Issue 1-2 2017
Keywords impact assessment, Better Regulation, non-judicial review, regulatory scrutiny, European Union
Authors Anne C.M. Meuwese
AbstractAuthor's information

    The article maps the various ways in which review of Commission impact assessments takes place by the Regulatory Scrutiny Board, the European Ombudsman, the European Court of Auditors, and the Court of Justice of the European Union, among others, and assesses the effect these review activities have on the framework and functioning of this primary Better Regulation tool.


Anne C.M. Meuwese
Tilburg Law School, The Netherlands, Professor of European and Comparative Public Law.
Article

Why Better Regulation Demands Better Scrutiny of Results

The European Parliament’s Use of Performance Audits by the European Court of Auditors in ex post Impact Assessment

Journal European Journal of Law Reform, Issue 1-2 2017
Keywords EU budget, European Parliamentary Research Service, policy evaluation, scrutiny, oversight
Authors Paul Stephenson
AbstractAuthor's information

    Ex post impact assessment (traditionally considered part of policy evaluation) received less attention in the preceding ‘Better Regulation’ package (2011) than ex ante impact assessment. Yet, the insights generated through ex post impact assessment provide crucial input for streamlining legislation. In recognition of its contribution, the current agenda (2015) extends the reach to policy evaluation, and from financial instruments to regulatory instruments. In light of existing experience with impact assessments in Commission Directorates-General (DGs), the European Union (EU) institutions have been increasingly aware of the need to develop staff expertise in ex post (policy) evaluation, which has in the past been largely outsourced to external parties. Making sense of collected input and incorporating it within impact assessment is time consuming. Indeed, taking up the findings for practical use is a challenge for political decision makers but essential for the purposes of accountability, scrutiny and institutional learning. The challenge is more so, given the wealth of information being generated by multiple parties and the increasing technical and financial complexity of certain policy areas. The role of the Commission as an advocate of ‘Better Regulation’ has been studied extensively. However, we know relatively little about the role of the European Parliament (EP) in ex post evaluation. This article contributes to the literature on ‘Better Regulation in the EU’ by shedding light on the EP activities in the realm of scrutiny and evaluation. In particular, it looks at the Parliament’s use of special reports produced by the European Court of Auditors (ECA) through its performance audit work and how it takes on board the findings and recommendations in its scrutiny of budgetary spending. Moreover, it examines the emerging role of the European Parliamentary Research Service (EPRS) in monitoring the outputs of the ECA and other bodies engaged in audit and evaluation, and thereby, the way in which the EPRS is helping increase the Parliament’s capacity for scrutiny and oversight.


Paul Stephenson
Maastricht University.
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