The Central European constitutional democracies were created by the political and constitutional transition of 1989. However, twenty years later, in the light of antidemocratic, authoritarian and intolerant tendencies, it is far from clear whether the negotiated revolution is a story of success or failure. This paper first outlines the constitutional background of revolutionary transition. It shows that the achieved structures and rules do not prevent political communities from realizing the full promise of democracy. Second, this analysis attempts to explore how the century-old historical circumstances, the social environment, and the commonly failed practice of constitutional institutions interact. This section focuses on the constitutional features of presidential aspirations, the privileges of churches and certain ethnic tensions. Finally, the paper argues that the chances of success of liberal democracies depend significantly on extraconstitutional factors. It seems that Hungary is in a more depressing and dangerous period of its history than for example Poland. |
Article |
From Uneasy Compromises to Democratic PartnershipThe Prospects of Central European Constitutionalism |
Journal | European Journal of Law Reform, Issue 1 2011 |
Keywords | Central Europe, parliamentarism, freedom of religion, Roma people, discrimination |
Authors | Gábor Attila Tóth |
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Article |
The Problems and Promises of a Legal ConstitutionThe Constitutional State and History |
Journal | European Journal of Law Reform, Issue 1 2011 |
Keywords | constitutional state, legitimacy, progressive history, legal constitution, political constitution |
Authors | Davit Zedelashvili |
AbstractAuthor's information |
Nowadays, in the West, especially on the European Continent, the legitimacy of the modern state is once again subject to multifarious challenges. Against this background, the article revives one of the most important, though often overlooked themes of the constitutional theory, the relevance of the concept of progressive history for the legitimacy of the constitutional state. It is suggested, that the reappearance of the progressive history brings the supposedly forgotten themes of the objectivist metaphysics, back into the constitutional theory. The conclusion points that, only the accounts of a legal constitution, which reject the connection with progressive history, have the potential to deal with the problematic consequences that the reemergence of the metaphysically charged concept of progressive history may entail, given the contemporary socio-political conditions, characterized by the value and ideological pluralism. |
Article |
Investor Protection v. State Regulatory DiscretionDefinitions of Expropriation and Shrinking Regulatory Competence |
Journal | European Journal of Law Reform, Issue 1 2011 |
Keywords | regulatory freeze, expropriation, investor protection, economic governance, environmental protection |
Authors | Ioannis Glinavos |
AbstractAuthor's information |
The purpose of this paper is to offer support to the idea that the contemporary international legal framework offers opportunities to investors to challenge and control government action via what has been described as a ‘regulatory freeze’. This regulatory freeze is the consequence of government reluctance to legislate/regulate in areas where claims of expropriation may be brought. The paper presents evidence from investment-treaty dispute resolution mechanisms, national and supranational judicial processes from both sides of the Atlantic. The paper concludes by suggesting that the potential for expanded definitions of expropriation is having a greater impact than actual case outcomes, as states seek to preempt any adverse developments by shying away from regulations that may provide fertile grounds for challenge. This effect is significant, as it is contrary to expectations of greater state involvement in economic management bred by the financial crisis. |
Article |
The Combination of Negative with Positive Constitutionalism in EuropeThe Quest of a ‘Just Distance’ between Citizens and the Public Power |
Journal | European Journal of Law Reform, Issue 1 2011 |
Keywords | democracy, constitutionalism, totalitarism, fundamental rights, judicial review |
Authors | Cesare Pinelli |
AbstractAuthor's information |
The article is focused on European constitutionalism as resulting from the transformations following the experiences of totalitarian states. The notion of democracy was then significantly re-shaped, to the extent that democratic devices (federalism and sometimes referendum) were introduced with a view to balance the excesses of a purely representative democracy. The recognition of social rights and of human dignity reacted against totalitarism and, on other hand, against the individualistic notion of rights affecting the XIX century’s constitutionalism. Constitutional review of legislation was introduced, thus overriding the myth of parliamentary sovereignty, particularly the idea of parliament as the sole authority capable of granting fundamental rights. |
Article |
In the Judicial Steps of Bolívar and Morazán?Supranational Court Conversations Between Europe and Latin America |
Journal | European Journal of Law Reform, Issue 1 2011 |
Keywords | courts, dialogue, integration, regionalism, case-law |
Authors | Allan F. Tatham |
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This paper explores the issues of judicial dialogue and constitutional migrations between the European Court of Justice (‘ECJ’) and Latin American regional courts. It considers the impact of the ECJ’s ‘constitutional’ case-law regarding supremacy and direct effect on the decisions of the Central American Court of Justice (‘CCJ’) and the Court of Justice of the Andean Community (‘ACCJ’). The study proceeds from a brief exposition of the legal aspects of the EU model of integration, before moving to identify the main factors which led to the selection of Latin American courts and to outline the background to integration in the two sub-regions. In addressing the CCJ and ACCJ, a short history and sketch of their jurisdiction is given before examining the impact of the migration of the integrationist activism of the ECJ on these regional judicial institutions. |
Article |
Comparative Aspects on ConstitutionsTheory and Practice |
Journal | European Journal of Law Reform, Issue 1 2011 |
Keywords | Constitutions, EU legal order, EU member states, EU enlargement |
Authors | Alfred E. Kellermann |
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This paper will investigate for the influence of international legal developments on the drafting and implementation of constitutions, especially the impact of the European Union on the texts of the national constitutions of the EU Member States and its acceding countries. |
Article |
The European Law from Grundnorm towards the CathedralConstitutional Features of a Complex Legal System |
Journal | European Journal of Law Reform, Issue 1 2011 |
Keywords | economic analysis of legal remedies, state liability for breach of the EU law, judicial dialogue in the EU, self-referring legal rules, efficiency of the EU law |
Authors | Mariusz Jerzy Golecki |
AbstractAuthor's information |
Many hopes of the adherents of constitutional reform in the EU remained in vain after the enactment of the Lisbon Treaty. Meanwhile the creeping constitutionalisation of the EU law leads to the empowerment of the UE quasi constitutional court – the Court of Justice of the European Union. This kind of constitutionalism is albeit firmly grounded on judicial cross-border cooperation. The main purpose of this paper is to address the question of whether and how the concept of judicial control based on transactional framework developed in law and economics could effectively supplement if not substitute the notion of constitutional democratic legitimacy. In order to demonstrate that it is logically possible and institutionally feasible to build a system based on circularity, self-referentiality and privatization of legal remedies, the paper contains the economic analysis of the recent development of the EU law which at least partially takes this direction. |
Article |
Judicial ActivismUsurpation of Parliament’s and Executive’s Legislative Functions, or a Quest for Justice and Social Transformation |
Journal | European Journal of Law Reform, Issue 2 2011 |
Keywords | judicial activism, separation of powers, constitutional interpretation |
Authors | Reyneck Matemba |
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This article examines the concept of judicial activism in relation to the courts’ role of interpreting legislation, particularly focusing on the courts’ function of interpreting the Constitution. It specifically examines modes of constitutional interpretation obtaining in RSA and Nigeria, by focusing on selected judicial decisions by superior courts in the two countries. It also examines constitutional provisions governing the interpretation of the Constitution (Bill of Rights) and legislation as provided for in the Constitution of RSA and that of Nigeria. It also makes a comparative examination of judicial approaches to the interpretation of socio-economic rights enshrined in the Constitution of each of the two countries, specifically focusing on the rights to health and housing.The article observes that the concept of judicial activism is a necessary tool for attaining justice and achieving social transformation. |
Editorial |
Sir William Dale Memorial Issue |
Journal | European Journal of Law Reform, Issue 2 2011 |
Authors | Constantin Stefanou |
Author's information |
Article |
Instructions to Draft LegislationA Study on the Legislative Drafting Process in Malaysia |
Journal | European Journal of Law Reform, Issue 2 2011 |
Keywords | legislative drafting process, role of instructing officer and drafter |
Authors | Rozmizan Muhamad |
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The importance of legislation is beyond any dispute. Legislation governed us perhaps even before our birth, certainly during our life and until our death. Even after our death there is still the Estate Duty Act to worry about, although of course the burden passes on to our executors or administrators. But day after day, many more new laws have been proposed and many existing laws have been revised and amended for various reasons and motives. The need for legislation has never diminished but continues to increase. Governments need legislation to govern, by which they achieve their political objectives and public policies. In other words, legislation is needed to affect changes in the law, to interfere with vested rights and interests, and to impose taxes, duties, excise and imposts. Such need originates from one or more of a great many sources such as a commission of inquiry, politicians, a particular pressure group or the public as a whole and also a reaction to social situations which seemingly develop independently or deliberately |
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Judicial ReviewAn Essential Tool for Curbing the Excesses and Abuse of Executive Action in Sierra Leone |
Journal | European Journal of Law Reform, Issue 2 2011 |
Keywords | delegated legislation, administrative law, judicial review |
Authors | Kadija Kabba |
AbstractAuthor's information |
This essay examines judicial review in executive/administrative action as an essential tool for curbing the excesses and abuse of delegated legislative powers in Sierra Leone based on the valid assumption that there is a system of administrative law due to a developed system of judicial review in Sierra Leone. To examine and establish the facts, focus is laid on judicial review of administrative/ executive action and not on judicial review of primary legislation.This article first and foremost tried to establish that, the practice of delegated legislation from which judicial review ensues is a necessity in any given democratic society.This piece of work in trying to establish its facts, put forward arguments by scholars and writers in support and against the use of judicial review as an essential tool to curb the abuse and excesses of executive’s action. This is juxtaposed in conjunction with cases laws from Sierra Leone dealing with judicial review.The irrefutable fact this article tried to illustrate is that judicial review is important in any society in curtailing the excesses and abuse of executive actions. |
Article |
Arbitration and Promotion of Economic Growth and Investment |
Journal | European Journal of Law Reform, Issue 3-4 2011 |
Authors | Jason Fry |
AbstractAuthor's information |
ICC arbitration was conceived by and for international business. When the International Chamber of Commerce was created in 1920 to combat insularity and protectionism in world trade, dispute resolution was seen as an indispensable part of the services it was to provide. Recognizing that contracts, especially between partners of different cultures, are inevitably exposed to strain, misunderstanding and even, regrettably, sometimes flagrant abuse, the ICC considered it crucial to provide the business world with an appropriate means of overcoming commercial conflict. In the words of Etienne Clementel, the French Minister of Commerce at the time and one of the founders of the ICC, “freedom can truly flourish only if it finds within itself the means to achieve its own moderation”. ICC arbitration was initially developed as a means of self regulation in international commerce. |
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. |
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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
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Article |
Autonomy and Due Process in ArbitrationRecalibrating the Balance |
Journal | European Journal of Law Reform, Issue 3-4 2011 |
Authors | Christa Roodt |
AbstractAuthor's information |
Conflicts of jurisdiction between a state court and an arbitral tribunal occur in two different scenarios: (a) claimant X institutes a court action and the defendant subsequently commences with arbitration or requests to be referred to arbitration (as envisaged by the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards – NYC); and (b) claimant X commences arbitration and the defendant subsequently challenges in a national court. X should be able to seek a stay of the parallel litigation on the ground of the existence of a valid agreement to arbitrate the dispute, but the duty on the part of South African courts to do so is not clearly legislated, nor is it as well-understood as it deserves to be. Various interests have fallen into disharmony in this area of the law. |
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OHADA’s Proposed Uniform Act on Contract LawFormal Law for the Informal Sector |
Journal | European Journal of Law Reform, Issue 3-4 2011 |
Authors | Claire Moore Dickerson |
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A great deal of effort and a great deal of erudition have gone into the preparation of the OHADA Uniform Act on Contract Law (preliminary draft) [hereinafter draft Uniform Act on Contract Law].1xThe participants at this conference need no introduction to OHADA. The following sources may be helpful to Anglophones seeking basic information about this uniform system of business laws, which includes both statutes (“uniform acts”) and institutions, and is effective in 16 West and Central African countries (with a 17th having signed and ratified the constitutive treaty). Books: C. Moore Dickerson (Ed.), Unified Business Laws for Africa: Common Law Perspectives on OHADA, 2009; Mator et al., Business Law in Africa: OHADA and the Harmonization Process, 2nd edn, 2007; M. Baba Idris (Ed.), Harmonization of Business Law in Africa: The Law, Issues, Problems & Prospects, 2007. Websites, all of which have English-language content, including unofficial translations of the principal OHADA documents: <www.ohada.com>, which also contains scholarly articles; and <www.juriscope.org>, which provides English-language commentary for three of the uniform acts. Also useful is OHADA’s official website, <www.ohada.org>; however, as of this writing (25 February 2011), it describes its English-language portion as still under construction. Noten
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Editorial |
African Conference on International Commercial Law |
Journal | European Journal of Law Reform, Issue 3-4 2011 |
Authors | Ingeborg Schwenzer |
Author's information |