The Special Representative to the UN Secretary-General on human rights and transnational corporations and other business enterprises, John Ruggie, establishes access to remedy as one of the three pillars of the UN ‘Protect, Respect, Remedy’ Framework. In this Framework, Ruggie prescribes that company-based grievance mechanisms can be one effective means of enabling remediation to those potentially being impacted by business enterprises’ activities. This report proposes a model for company-based grievance mechanisms that follow a combination of interest-based and rights-compatible approaches to conflict resolution of all corporate social responsibility issues in company–stakeholder relationships. |
Search result: 28 articles
Year 2013 xArticle |
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Journal | The Dovenschmidt Quarterly, Issue 4 2013 |
Authors | Martijn Scheltema |
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Journal | The Dovenschmidt Quarterly, Issue 4 2013 |
Keywords | CSR, human rights, grievance mechanism, interest-based approach, rights-based approach |
Authors | Cristina Cedillo |
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Sir William Dale Annual LectureThe Law Commission and the Implementation of Law Reform |
Journal | European Journal of Law Reform, Issue 4 2013 |
Authors | The Rt. Hon. Sir David Lloyd Jones |
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Donors without BordersA Comparative Study of Tax Law Frameworks for Individual Cross-Border Philanthropy |
Journal | European Journal of Law Reform, Issue 4 2013 |
Keywords | comparative, philanthropy, tax, deduction, international |
Authors | Joseph E. Miller, Jr. |
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Under current United States tax law, individual gifts to foreign charities generally are not deductible from federal income tax as charitable contributions. A comparative study of analogous tax laws in Switzerland and the United Kingdom demonstrates that the Swiss approach generally reflects the same prohibition against tax deductions for individual gifts to foreign charities, while British law permits such deductibility for gifts to qualified charities in other EU member states, Norway, and Iceland. |
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Drafting of Legislation in Compliance with Model Laws |
Journal | European Journal of Law Reform, Issue 4 2013 |
Keywords | challenges, domestic legislation, model laws |
Authors | Lesedi Poloko |
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Lawmaking is an essential attribute of a state. Laws differ from one country to another, and compliance with different legal rules may create problems. Uniformity of laws is an end in itself, and its value lies in its practical benefits. Interest in the quality of legislative instruments is a major concern, especially as regards the effectiveness of the national legislation. |
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Drafting Conventions, Templates and Legislative Precedents, and their Effects on the Drafting Process and the Drafter |
Journal | European Journal of Law Reform, Issue 4 2013 |
Keywords | drafting conventions, templates, legislative precedents, drafter’s skill, necessary tools for effective communication of language of legislation |
Authors | Agnes Quartey Papafio |
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The aim of this article is to explore whether drafting conventions, templates and legislative precedents contradict or complement the drafter’s style and if they complement the drafter’s style, the various ways in which the use of these tools achieves it. |
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Journal | Erasmus Law Review, Issue 3/4 2013 |
Keywords | legal pluralism, rule of law promotion, legal reform, customary law, non-state legal systems, donor policy |
Authors | Dr.mr Ronald Janse |
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Over the past 25 years, international organizations, NGOs and (mostly Western) states have spent considerable energy and resources on strengthening and reforming legal systems in developing countries. The results of these efforts have generally been disappointing, despite occasional successes. Among donors, one of most popular explanations of this failure in recent years is that rule of law promotion has wrongly focused almost exclusively on strengthening the formal legal system. Donors have therefore decided to 'engage' with informal justice systems. The turn to legal pluralism is to be welcomed for various reasons. But it is also surprising and worrisome. It is surprising because legal pluralism in developing countries was a fact of life before rule of law promotion began. What made donors pursuing legal reform blind to this reality for so long? It is worrisome because it is not self-evident that the factors which have contributed to such cognitive blindness have disappeared overnight. Are donors really ready to refocus their efforts on legal pluralism and 'engage' with informal justice systems? This paper, which is based on a review of the literature on donor engamenet with legal pluralism in so-called conflict affected and fragile states, is about these questions. It argues that 7 factors have been responsible for donor blindness regarding legal pluralism. It questions whether these factors have been addressed. |
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Journal | Erasmus Law Review, Issue 3/4 2013 |
Keywords | national judges, legal pluralism, application of EU law, legal consciousness, supremacy and direct effect of EU law |
Authors | Urszula Jaremba Ph.D. |
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The notion and theory of legal pluralism have been witnessing an increasing interest on part of scholars. The theory that originates from the legal anthropological studies and is one of the major topical streams in the realm of socio-legal studies slowly but steady started to become a point of departure for other disciplines. Unavoidably it has also gained attention from the scholars in the realm of the law of the European Union. It is the aim of the present article to illustrate the legal reality in which the law of the Union and the national laws coexist and intertwine with each other and, subsequently, to provide some insight on the manner national judges personally construct their own understanding of this complex legal architecture and the problems they come across in that respect. In that sense, the present article not only illustrates the new, pluralistic legal environment that came into being with the founding of the Communities, later the European Union, but also adds another dimension to this by presenting selected, empirical data on how national judges in several Member States of the EU individually perceive, adapt to, experience and make sense of this reality of overlapping and intertwining legal orders. Thus, the principal aim of this article is to illustrate how the pluralistic legal system works in the mind of a national judge and to capture the more day-to-day legal reality by showing how the law works on the ground through the lived experiences of national judges. |
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Journal | International Institute of Space Law, Issue 11 2013 |
Authors | Martha Mejía-Kaiser |
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The Drafter’s Role in the Drafting Process |
Journal | European Journal of Law Reform, Issue 3 2013 |
Keywords | drafter, drafting process, techniques, scrutiny |
Authors | Mico Augustin |
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Every government needs legislation to cover all issues transposing obligations in the manner required by the initiator and with respect to constitutional obligations and rules that provide for the conduct of society. |
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Legislative Techniques in RwandaPresent and Future |
Journal | European Journal of Law Reform, Issue 3 2013 |
Keywords | legislative drafting, law-making, drafting techniques, Rwanda, quality of legislation |
Authors | Helen Xanthaki |
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This report is the result of the collective work of 26 Rwandan civil servants from a number of ministries, who set out to offer the Ministry of Justice a report on legislative drafting in Rwanda. The work was undertaken under the umbrella of the Diploma in Legislative Drafting offered by the Institute for Legal Professional Development (ILPD) in Nyanza under the rectorship of Prof. Nick Johnson. The authors have used their experience of practising drafting in Rwanda, but have contributed to the report in their personal capacity: their views are personal and do not reflect those of the Government of Rwanda. |
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Statutory Interpretation in Multilingual Jurisdictions |
Journal | European Journal of Law Reform, Issue 3 2013 |
Keywords | drafting, multilingual, translation, interpretation, authenticity |
Authors | Odethie Birunga |
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Considering that every piece of legislation is subject to legal interpretation, its practicability depends highly on successful interpretation. In any legislation drafted in more than one language, divergence in meanings of versions is not only possible, but inevitable. It is not a simple task to draft in a way so that contexts are translated and included in all different language versions so that it becomes one meaningful legislation. While relying on one version only in the course of interpreting a piece of legislation may sound a lot easier, there could be ambiguous passages which may be clarified by consulting other versions. The existence of discrepancies between the versions of legislation is neither a smooth sail in multilingual environment. |
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The Principle of Ultra Vires and the Local Authorities’ Decisions in England |
Journal | European Journal of Law Reform, Issue 3 2013 |
Keywords | ultra vires, administrative decisions, legislative drafting, validity and invalidity of local authority administrative decisions, misuse of discretion |
Authors | Charles Aguma |
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The hypothesis of this article is that valid administrative decisions from local authorities are guaranteed via clear and precise enabling clauses in the primary legislation. The article argues that the style of drafting local authorities’ legislations influences decisions taken by local authorities. First, legislations need to be drafted in a style that clearly and precisely spells out the limits of powers of the local authorities in order to provide sufficient guidance to local authorities’ administrators to act lawfully. In attempting to exercise implied powers conferred by the imprecise enabling legislation, however, local authorities tend to go beyond intended legal powers and as a result take unreasonable, arbitrary and invalid decisions. More so, drafters rarely provide sufficient guidance about which considerations are properly relevant to the exercise of discretion and which are not. Secondly, obscure, wide and ambiguous enabling clauses in the primary legislations are substantial causes of courts’ misinterpretation of legislation as understanding the limits of the powers of the local authorities is a challenge. On the other hand, it is questionable whether the whole range of activities performed by a local authority by invoking implied powers, while exercising discretion, under the umbrella of doing anything that is calculated to facilitate or is conducive to or incidental to the discharge of any of its functions can be regarded as lawful. This article attempts to respond to that question. Although the principle of ultra vires requires the strict observance of the limits of the powers conferred in legislation, local authorities tend to invoke widely drafted provisions to perform activities that are said to be incidental to the express powers of which courts may declare invalid. |
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Judicial Delegation of Administrative Acts During the Execution Phase or Execution ProcessThe Application of the Constitutional Principle of Efficiency, Under the Inspiration of Recent Portuguese Law Reforms |
Journal | European Journal of Law Reform, Issue 2 2013 |
Keywords | Brazilian constitutional principle of efficiency, enforcement agents in Portugal, delegation of judicial procedural administrative and enforcement acts, enforcement proceedings |
Authors | Rafael Cavalcanti Lemos |
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The Constitutional Amendment 45/2004 emphasized the need for efficiency in both administrative and judicial judgments in Brazil and introduced the right of a trial within reasonable time (Art. 5, item LXXVIII) in the 1988 Federal Constitution. Although more judges are needed to comply with this constitutional requirement, no statutory regulation was enacted to date to conform to it, particularly to allow judges to delegate administrative and enforcement functions to civil servants. However, given that fundamental rights have immediate applicability, the principle of efficiency must be implemented regardless of further regulation. In Portugal, judges are not required to order executive acts, which are conferred to an enforcement agent. A similar system should be adopted in Brazil, leaving judges time for decision-making. An efficient judicial service is essential to strengthen the image of the Judiciary and depends on this type of reforms. |
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Journal | Erasmus Law Review, Issue 1 2013 |
Keywords | India-US Nuclear Deal, Nuclear Energy Cooperation, Non-Proliferation Treaty, Fragmentation, Constitutionalisation, Pluralism, Global Administrative Law |
Authors | Surabhi Ranganathan |
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‘Fragmentation’, ‘pluralism’, ‘constitutionalisation’ and ‘global administrative law’ are among the most dominant narratives of international legal order at present. Each narrative makes a descriptive claim about the current state of the international legal order, and outlines a normative vision for this order. Yet we must not lose sight of the conflicts between, and the contingency of these, and other narratives. This article seeks to recover both conflicts and contingency by showing how each may be used to explain a given event: the inauguration of a bilateral civil nuclear cooperation between the United State and India, better known as the ‘India-US nuclear deal’. I explain how the four narratives may be, and were, co-opted at different times to justify or critique the ‘deal’. This exercise serve two purposes: the application of four narratives reveal the various facets of the deal, and by its example the deal illuminates the stakes attached to each of the four narratives. In a final section, I reflect on why these four narratives enjoy their influential status in international legal scholarship. |
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Journal | Erasmus Law Review, Issue 1 2013 |
Keywords | hegemony, constitutionalism, constitutionalisation, international criminal law |
Authors | Marjan Ajevski |
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As we move towards constructing narratives regarding the future outlook of global governance, constitutionalisation among them, the hope is that whatever shape this world order takes it will, somehow, forestall or hinder the possibility of a hegemonic order. This article tries to deconstruct the notion of hegemony and claims that as it currently stands it is useless in doing its critical work since every successful narrative will end up being hegemonic because it will employ the ‘hegemonic technique’ of presenting a particular value (or value system), a particular viewpoint, as universal or at least applying to those who do not share it. The only way for a narrative in this discourse not to be hegemonic would be for it to be either truly universal and find a perspective that stems from nowhere and everywhere – a divine perspective – or purely descriptive; the first being an impossibility for fallible beings and the other not worth engaging with since it has nothing to say about how things should be structured or decided in a specific situation. |
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Journal | The Dovenschmidt Quarterly, Issue 2 2013 |
Keywords | microfinance, economic development, microfinance success, Institutions, law and economics |
Authors | Katherine Helen Mary Hunt |
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Microfinance is an area of research whose popularity is reflected by the unique potential for wide-ranging socioeconomic outcomes that support political goals unmatched by alternative avenues for financial support. However, despite the large amounts of financial resources funding microfinance across the world, and glorious potential economic benefits, there is no consensus regarding the success or failure of microfinance in achieving socioeconomic political goals. This article examines the empirical literature on microfinance to establish where microfinance has developed from, the organization of microfinance institutions (MFIs), the success or failure of microfinance, and future research methodological possibilities. It has been found that the success or failure of microfinance depends on the benchmarks to which it is measured. From a social empowerment perspective, microfinance success has been observed. However, from an economic development perspective the results are equivocal. The success of microfinance is related to the mission of DQ because of the interdisciplinary approach to research and the effects of microfinance across social and economic fields. Further, microfinance continues to be an avenue for the practical realization of corporate social responsibility (CSR) organizational goals and thus it is of relevance to evaluate success in this industry to ensure the efficient and continued achievement of political goals. |
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Journal | The Dovenschmidt Quarterly, Issue 2 2013 |
Keywords | antitrust, behavioural economics, cognitive economics and law, predatory pricing, intent |
Authors | Luca Arnaudo |
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Over the past two decades behavioural economics has gained widespread consensus, and, as a consequence, is affecting many areas of law and economics. Antitrust is currently providing an interesting case study of this cultural-academic trend with a growing number of articles and comments focusing on “behavioural antritrust”. This article considers the state of the art of the behavioural approach to antitrust, taking the case of predatory pricing as useful test-bed for better evaluating practical perspectives of such an approach. The article suggests a “step beyond” by sketching a cognitive upgrade of antitrust. This move is coherent with a broader cognitive law framework that is in line with what is happening within contemporary economic theory. |
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Journal | The Dovenschmidt Quarterly, Issue 2 2013 |
Keywords | Audit profession, international audit regulations, public-interest entities, historical developments |
Authors | Paul van der Zanden and Peter M. van der Zanden |
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The article discusses the historical developments within the audit profession as well as the developments in the rules and regulations relating to this profession. It does so in an international perspective. The authors compare the traditionally more Anglo-Saxon oriented approach with the traditionally more continental European approach. They discuss the influence and impact of these different approaches on each other as well as the impact of this process on regulation on a European level and implementation thereof on a local level. The developments in the Netherlands, which evidence this process, are used as an illustration. Throughout the article the authors also make some critical observations and notes with respect to the developments discussed. |
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Federal versus State: Private Commercial Spaceflight Operator Immunity Regulation in the United States |
Journal | International Institute of Space Law, Issue 5 2013 |
Authors | Frans G. von der Dunk |
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