Search result: 17 articles

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Year 2012 x
Article

Structuring the Judiciary to Conduct Constitutional Review in the Netherlands

A Comparative and European Perspective

Journal European Journal of Law Reform, Issue 4 2012
Keywords centralized/decentralized constitutional review, Netherlands constitutional law, comparative law
Authors Gerhard van der Schyff
AbstractAuthor's information

    Whether a legal system decides to centralize or decentralize constitutional review by the judiciary is dependent on various factors. This article critically considers a host of these factors, ranging from the separation of powers to the desire to bring about far-reaching constitutional change and the possible impact of membership of the European Union, in studying whether in the Netherlands constitutional review should be centralized or decentralized upon its possible introduction. The conclusion is reached that although decentralization can be opted for under the current circumstances, a persuasive case for centralization can also be made and might even become stronger and inevitable depending on the course of future constitutional reform.


Gerhard van der Schyff
Gerhard van der Schyff is Senior Lecturer in Constitutional Law at Tilburg Law School, The Netherlands.

P. Masambu

P.J. Blount

Frans G. von der Dunk
Article

Access_open Globalization as a Factor in General Jurisprudence

Journal Netherlands Journal of Legal Philosophy, Issue 2 2012
Keywords general jurisprudence, globalization, global legal pluralism, legal positivism, analytical jurisprudence
Authors Sidney Richards
AbstractAuthor's information

    Globalization is commonly cited as an important factor in theorising legal phenomena in the contemporary world. Although many legal disciplines have sought to adapt their theories to globalization, progress has been comparatively modest within contemporary analytical jurisprudence. This paper aims to offer a survey of recent scholarship on legal theory and globalization and suggests various ways in which these writings are relevant to the project of jurisprudence. This paper argues, more specifically, that the dominant interpretation of globalization frames it as a particular form of legal pluralism. The resulting concept – global legal pluralism – comes in two broad varieties, depending on whether it emphasizes normative or institutional pluralism. This paper goes on to argue that these concepts coincide with two central themes of jurisprudence, namely its concern with normativity and institutionality. Finally, this paper reflects on the feasibility of constructing a ‘general’ and ‘descriptive’ jurisprudence in light of globalization.


Sidney Richards
Sidney Richards is Doctoral candidate in Law at Pembroke College at the University of Cambridge.
Article

The Impact of Europeanization of Contract Law on English Contract Law

Journal European Journal of Law Reform, Issue 2-3 2012
Keywords Rome I and II Regulations, Europeanization, contract law, Common European Sales Law, faulty goods
Authors Omar Abdelaziz
Abstract

    The ongoing process of Europeanization for promoting cross-border transactions and conferring better protection for consumers and small businesses has had its impact all over Europe. It represents a new step towards a harmonized set of legal rules to govern cross-border transactions in the field of contract law. So what is its exact scope? Who will benefit from it? What are its risks? What is its methodology? Does it represent a codification of common law rules? What will be its impact especially on common law countries such as the United Kingdom? The effectiveness of Europeanization depends almost entirely on the correct implementation into national law of the various directives; every member state is obliged to fully implement a harmonized measure into its domestic laws. This is accomplished by ensuring that (1) the relevant legal framework meets the requirements of the harmonized measure and (2) the application of the domestic rules giving effect to a harmonizing measure does not undermine the effectiveness of the European measure. English contract law is largely an uncodified law. Accordingly, the approach taken and the methods used by this jurisdiction to implement European directives into its national laws with the aim of harmonization are different. How did the English courts interpret legislations that implement EU legislations? Will Europeanization affect the deep-rooted principles and doctrines of English contract law (issues of commercial agency), good faith in pre-contractual obligations, unfair contract terms and specific performance? Finally, what could be the clash between European contract law, Rome I Regulations and the United Nations Convention on Contracts for the International Sale of Goods? Could this optional instrument be an exclusive law to either national or international mandatory rules for consumers in member states? What will be the qualification for a genuine consent of consumers in cross-border contracts? Will it lead to the development of the internal market as envisaged by the Commission?


Omar Abdelaziz
Article

Instructions to Draft Legislation

A Study on Legislative Drafting Process in Rwanda

Journal European Journal of Law Reform, Issue 2-3 2012
Keywords drafting instructions, Rwanda, quality of legislation
Authors Ruth Ikiriza
Abstract

    Drafting instructions are always difficult to discuss and evaluate because very often they depend on local traditions. Nevertheless, despite local traditions in drafting instructions their complete absence must be seen as a problem. This article tackles the issue of drafting instructions and their importance in the development of good drafts. And by good drafts the author means good quality drafts which will lead to good quality legislation. The article uses Rwanda as a case study and employs Thornton’s five stages of the drafting process as its basic methodology.


Ruth Ikiriza
Article

Consultation: A Contribution to Efficiency of Drafting Process in Malaysia

Journal European Journal of Law Reform, Issue 2-3 2012
Keywords consultation, stakeholders, efficiency of drafting process, elements of efficiency, policy development
Authors Noor Azlina Hashim
AbstractAuthor's information

    Consultation in legislative drafting process is important and widely acknowledged. So far, many countries in the world have taken steps to foster consultation during the early stage of the drafting process. In Malaysia, the importance of opinion from the public or stakeholders in the output of the drafting process was recently evident when several bills presented before the Parliament were criticized because of the failure to take into consideration views and opinions from the public. In some cases, bills were postponed for policy review and refinement. This article examines and discusses consultation practices during the drafting process and analyses and considers the influence of consultation on the efficiency of the drafting process in Malaysia. The influence of consultation practice in relation to the drafting process were shown from a survey conducted on the drafters in the Drafting Division of the Attorney General’s Chambers of Malaysia.


Noor Azlina Hashim
The Attorney General’s Chambers of Malaysia.
Article

State Aid Given by Local Government Which Disorts Competition

Journal European Journal of Law Reform, Issue 1 2012
Keywords local government, financial autonomy, taxes, sales, state aid
Authors Fjoralba Caka
AbstractAuthor's information

    The Albanian local government has a financial autonomy that is guaranteed by the Constitution and other important legal acts. This implies the right to grant subsidies, loans, define rates of taxes, to sale land or to exercises other rights in the ambit of their financial authority. On the other hand, part of the Stabilization and Association Agreement (SAA) Albania has with the European Union, is the prohibition of state aid that distort competition. Article 71 of the SAA states that any state aid contrary to this agreement shall be assessed on the basis of criteria arising from the application of Article 87 of the EC Treaty and the interpretative instruments adopted by the EU institutions for the application of Article 87 of the EC Treaty. The right interpretation of the notion of state aid that distorts competition, as developed by the European Court of Justice and EU Commission’s documents, should be taken into consideration in order to avoid that, the local government, in exercising the financial authority would grant an aid that distort competition and infringe the Stabilization and Association Agreement.


Fjoralba Caka
Assistant Lecturer in European Union Law, Faculty of Law, University of Tirana. PhD candidate.
Article

Immigration, Religion and Human Rights

State Policy Challenges in Balancing Public and Private Interests

Journal European Journal of Law Reform, Issue 1 2012
Keywords globalization, religious symbols, reasonable accommodations, comparative law, immigration, burqa, human rights
Authors Eric Tardif
AbstractAuthor's information

    Three regions of the world – Western Europe, North America, and Australia – are probably the most popular options when families of emerging countries decide to emigrate in order to better their economic future. As the flow of immigrants establishing themselves in the receiving societies allows for these countries to get culturally richer, it creates, on the other hand, legal tensions as to the extent religious practice is to be accommodated by the governments of secular societies so as to facilitate the insertion of the newcomers into the workplace, social networks, and education system. In order to eliminate or diminish the effect of legal provisions that cause an indirect harm to religious minorities, several countries have taken steps aimed at “reasonably accommodating” them. This paper looks at these efforts made by receiving States, taking into account both the legislative aspect and the interpretation of the statutes and constitutional provisions by national as well as international tribunals; it also gives a critical appreciation of the results that have been obtained in the societies that have implemented those shifts in their legal system.


Eric Tardif
LL.L. (Ottawa); LL.M., LL.D. (National Autonomous University of Mexico - UNAM). The author is currently a Lecturer at the Faculty of Law of the National Autonomous University of Mexico, in the subjects of International and Comparative Law. This document was initially prepared for presentation at the VIIIth World Congress of the International Association of Constitutional Law, held in Mexico City, 6-10 December, 2010; an earlier version of this article was published in the International Journal of Public Law and Policy in 2011.
Article

From Port Louis to Panama and Washington DC

Two Regional Approaches to International Commercial Arbitration

Journal European Journal of Law Reform, Issue 1 2012
Keywords international commercial arbitration, OHADA, institutional arbitration, American Arbitration Association, regional law reform
Authors Jonathan Bashi Rudahindwa
AbstractAuthor's information

    In recent decades, regional efforts have been made to reform and harmonize the rules governing international arbitration. These efforts have resulted in the adoption of regional instruments governing commercial arbitration in specific areas. This paper analyzes the arbitration regimes created at a regional level in Africa and America, and particularly focuses on arbitral institutions that were created within the Organization for Harmonization of Business Law in Africa (OHADA) and within the Organization of American States (OAS). The objective of the paper is to identify any advantages provided by either regime, which can help improve regional and international commercial arbitration.


Jonathan Bashi Rudahindwa
LL.B (Kinshasa, D.R.Congo), LL.M (Indiana, USA), Doctoral candidate – School of Oriental and African Studies/University of London.
Article

The Response of National Law to International Conventions and Community Instruments – the Dutch Example

Journal European Journal of Law Reform, Issue 1 2012
Keywords Legislative approaches, Private International Law codification, Book 10 of the Dutch Civil Code, Implementation of international instruments, Incorporation by reference
Authors Dorothea van Iterson
AbstractAuthor's information

    This paper, presented at a colloquium at Barcelona University in 2010, outlines the history of the codification of Private International Law (PIL) in the Netherlands, which was completed in 2011 by the introduction of Book 10 of the Dutch Civil Code (conflict of laws). It describes the policy guidelines followed in giving effect to international instruments, i.e. conventions and European legislation. Basically all types of international PIL rules are further regulated at the national level. Moreover, the national PIL codification contains a number of provisions which were borrowed from or inspired by international instruments.


Dorothea van Iterson
Former Counsellor of Legislation, Ministry of Justice of the Netherlands.

Prof. Sergio Marchisio
Sergio Marchisio, full professor of international law at the Sapienza University of Rome, chaired the five sessions of the UNIDROIT Committee of Governmental Experts entrusted to negotiate the Protocol on Space Assets, and the Committee of the Whole of the 2012 Berlin Diplomatic Conference which successfully adopted the draft and opened it for signature.

Hamid Kazemi
PhD student, Iran, hkazemi@umail.leidenuniv.nl.

Hadi Mahmoudi
Aerospace Research Institute, Iran, mahmoudi@ari.ac.ir.

Dr. Ali Akbar Golroo
Aerospace Research Institute, Iran, ali@ari.ac.ir.
Article

Access_open Law and China’s Economic Growth

A Macroeconomic Perspective

Journal The Dovenschmidt Quarterly, Issue 1 2012
Keywords China, economic imbalance, factor markets, economic policies, law and regulations
Authors Guangdong Xu
AbstractAuthor's information

    China is now stuck in an investment-driven growth pattern that has helped it achieve excessive economic growth in the short run but at the cost of environmental quality, ordinary citizens’ welfare, and long-term economic health. Two main factors can be identified as responsible for the formation and continuation of the current growth pattern. One is economic policy, especially fiscal and financial policies, which contribute to the decline in household consumption by depressing household disposable income and reducing social services provided by the government. The other is the law and regulations that the government has used to subsidize investment and production by distorting factor markets, including markets for capital, land, labor, energy, and environment. A systematic legal and institutional reform whose purpose is to liberalize factor markets is therefore required to rebalance China’s economy.


Guangdong Xu
China University of Political Science and Law.

C.M.D.S. Pavillon
Dr. C.M.D.S. (Charlotte) Pavillon is a postdoctoral researcher with the Groningen Centre for Law and Governance, University of Groningen (The Netherlands).

Hiroyuki Kishindo
Japan Aerospace Exploration Agency (JAXA), Japan, kishindo.hiroyuki@jaxa.jp.
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