Search result: 35 articles

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Year 2015 x

    Arbitration is an important feature of the American justice system, providing numerous benefits, such as flexible dispute resolution, efficiency, privacy and avoidance of unwarranted punitive damages, while significantly reducing cases on overloaded court dockets. Its success, however, is not without criticism; and in the case of class arbitration waivers, as this article suggests, that criticism is well founded.
    Since the enactment of the Federal Arbitration Act (FAA) in 1925, the United States Supreme Court has pronounced a sweeping policy in favour of arbitration. More recently, the Court has made significant pronouncements in favour of class arbitration waivers, overruling a lower-court trend towards refusing to enforce such waivers.
    The Supreme Court’s endorsement of class arbitration waivers unfortunately results in claim preclusion of consumer claims for relatively small amounts of money. Stuck in this relatively inequitable playing field, there exists an opportunity to design innovative solutions to protect consumers from claim preclusion. Online binding arbitration, OArb, offers numerous benefits that offset its drawbacks, and it provides an accessible forum for some consumers to effectuate small claims. While OArb has failed to gain traction as an alternative dispute resolution process, it seems likely that a private, properly administered OArb programme could succeed and provide benefits to companies and consumers alike. OArb, however, is not a complete substitute for class arbitration, especially because numerous consumers are probably unaware of their claims. OArb, nevertheless, is a step in the right direction, and consumers are sure to benefit if it is implemented on a wider scale.


Andrew M. Malzahn
Andrew M. Malzahn, J.D., summa cum laude, 2015, Hamline University School of Law; Associate, Dady & Gardner, P.A., Minneapolis, Minnesota.
Article

E-Commerce, ICTs and Online Dispute Resolution: Is This the Beginning of a New Professional Profile?

Journal International Journal of Online Dispute Resolution, Issue 2 2015
Keywords Mobile phones, ADR, ODR, mediation, conflict resolution
Authors Aura Esther Vilalta and Rosa Pérez Martell
AbstractAuthor's information

    There is a close link between the growth of Internet usage, the development of mobile technology, the expansion of markets and the increasing number of online dispute resolution mechanisms (ODRs). This article seeks to start a conversation about the need to provide justice by means of effective mechanisms, in particular for e-commerce disputes and transnational litigation. It also provides some information on the recent international initiatives towards the regulation of this new arena, and concludes with an early approach to the future challenges and the impact on training, qualifications and expertise of ODR professionals and service providers.


Aura Esther Vilalta
Senior Lecturer in Civil Law at the Universitat Oberta de Catalunya (UOC), Barcelona, Spain. Fellow of the National Center of Technology and Dispute Resolution (NCTDR), University of Massachusetts – Amherst; CEO of Iusmediare, mediator and arbitrator. Vilalta has been Spanish national representative at UNCITRAL, WG III (Online Dispute Resolution) and Deputy Magistrate in the Barcelona Court of Appeals.

Rosa Pérez Martell
Senior Lecturer in Procedural Law at Las Palmas de Gran Canaria University, lecturer at the Open University of Catalonia and member of the Mediation Commission at the Gran Canaria Government.
Article

Structure of Legislation: A Paradigm for Accessibility and Effectiveness

Journal European Journal of Law Reform, Issue 3 2015
Keywords effectiveness of legislation, structure of legislation, accessibility of legislation, quality drafting, clarity
Authors Elohor Onoge
AbstractAuthor's information

    The aim of this article is to examine how the structure of legislation can nurture accessibility and effectiveness of legislation.
    It explores whether the legislative drafter in carrying out the task of drafting can nurture effective communication of the policy maker’s intent to the targeted audience by making use of the structure of legislation as a tool, to ensure the legislation is accessible to the end user, and foster effectiveness.
    The third and fourth stage of Thornton’s stages of the drafting process – design and composition – would be examined and also Peter Butt’s types of structure, which relates to the drafting of legal documents but would be applied in this paper, to the drafting of legislation.


Elohor Onoge
Elohor Onoge LLM is a Nigerian legislative drafter working for the Federal Parliament. Email: stephyrook@gmail.com.
Article

Redefining Success in Arab–Jewish Dialogue Groups

Learning to Live in Both Worlds

Journal International Journal of Conflict Engagement and Resolution, Issue 2 2015
Keywords peace building, shift, interethnic dialogue, success in dialogue, dialogue groups
Authors Nurete Brenner and Victor Friedman
AbstractAuthor's information

    Despite the ongoing debate about the effectiveness of intergroup dialogue for conflict resolution, there is surprisingly little conceptualization of what constitutes successful dialogue. On the basis of a qualitative analysis of three US-based Arab–Jewish dialogue groups, using phenomenological methods and a comparison of case studies, this article presents three main dimensions of success: (1) a shift among group members to ‘living in both worlds’, which means that participants learn to accept the others’ views while still maintaining their own; (2) expansion beyond the group boundaries to include people outside the group such as family members, the larger community members and others and (3) resilience, which means being able to stay in relationship with rival group members without necessarily resolving the conflict. These three dimensions, which are linked together, provide potential criteria for evaluating the effectiveness of dialogue groups. The concept of shift is discussed and refined and contrasted with the more general concept of change. Ideas around generalizability are discussed, and the concept of expansion or ‘rippling out’ is suggested instead. Finally, resilience rather than resolution is offered as one of the main objectives of a successful dialogue.


Nurete Brenner
PhD, Ursuline College, Cleveland, Ohio.

Victor Friedman
EdD, Action Research Center for Social Justice, Max Stern Yezreel Valley College, Yezreel Valley, Israel.
Article

Hybrid Peacebuilding in Northern Ireland and the Border Counties

The Impact of the International Fund for Ireland and the European Union’s Peace III Fund

Journal International Journal of Conflict Engagement and Resolution, Issue 2 2015
Keywords Northern Ireland, economic aid, elicitive approach, liberal peace, grass-roots everyday peacemakers
Authors Julie Hyde and Sean Byrne
AbstractAuthor's information

    This article draws upon a wide qualitative study of the experiences and perceptions held by 107 community group leaders and 13 funding agency development officers within the liminal context of Northern Ireland and the Border Counties. These organizations received funding from the European Union’s Peace III Program and/or the International Fund for Ireland. Semi-structured interviews were conducted with key figures in these groups and agencies during the summer of 2010. This data is explored in relation to the concept of hybrid peacebuilding so as to better identify and articulate the potentialities and challenges associated with grass-roots macro-level interactions. The empirical findings indicate the necessity of flexibility in empowering local decision makers in a hybridized peacebuilding process. Local people should be involved with the funders and the governments in constructing and in implementing these processes. The theoretical findings are consistent with previous research that favors elicitive and local rather than top-down bureaucratic and technocratic processes. More attention needs to be paid to how local people see conflict and how they build peace. The prescriptive/practical implications are that policymakers must include the grass roots in devising and implementing peacebuilding; the grass roots need to ensure their local practices and knowledge are included; and external funders must include local people’s needs and visions in more heterogeneous hybrid peacebuilding approaches. The article is original, providing grass-roots evidence of the need to develop the hybrid peacebuilding model.


Julie Hyde
Julie Hyde is a Ph.D. Candidate in peace and conflict studies at the University of Manitoba. Her research focuses on critical approaches to peacebuilding, peace education, and indigenous/non-indigenous relationships.

Sean Byrne
Sean Byrne is professor of peace and conflict studies and director of the Arthur V Mauro Centre for Peace and Justice, St. Paul’s College, University of Manitoba. He has published extensively in the area of critical and emancipatory peace building. He was a consultant to the special advisor to the Irish Taoiseach on arms decommissioning. He is a consultant on the Northern Ireland peace process to the senior advisor for Europe and Eurasia at the U.S. Senate foreign relations committee. His research was funded by SSHRC and the USIP.
Article

Financial Crime Prevention and Control

The Reforms of a ‘Unique’ Jurisdiction under EU Law and International Standards

Journal European Journal of Law Reform, Issue 4 2015
Keywords Vatican financial system, money laundering, terrorist financing, 3rd AMLD, FATF Recommendations
Authors Francesco De Pascalis
AbstractAuthor's information

    Between 2011 and 2014, the Vatican City State (VCS) experienced a reform process which dramatically changed its financial system. The process is still ongoing, and its goal is to establish an anti-money laundering and counter-terrorism financing (AML/CTF) system. Importantly, this system will be based on the AML/CTF EU legislation and international standards. These facts are noteworthy. First, the reforms cast light on the main Vatican financial institutions against the background of the secrecy that has always characterized their functioning and business operations. Accordingly, there is now more transparency and information about the Vatican financial system. Second, the relevant EU law and international standards are tools through which the VCS can, for the first time, join an international network of countries, sharing and applying the same rules against money laundering (ML) and terrorist financing (TF). This is of extraordinary importance for a jurisdiction like the VCS, which has never referred to European or international principles in its rule-making. In particular, the openness to EU law and international standards stimulates investigating the reasons behind these changes and the impact that these sources of law are having on a jurisdiction regarded as ‘unique’ in the world.


Francesco De Pascalis
PhD in Law, Institute of Advanced Legal Studies University of London; Research Fellow, University of Zurich, Law Faculty. All errors and omissions remain the author’s.
Article

Corruption and Controls

Journal European Journal of Law Reform, Issue 4 2015
Keywords corruption, controls, inspections, administration, regulation
Authors Maria De Benedetto
AbstractAuthor's information

    Anti-corruption is a relatively recent policy which calls for controls. They represent the most effective means in rebalancing institutions which are not fully informed: ‘secrecy’, in fact, characterizes infringements and corrupt behaviour.
    Alongside criminal investigation, administrative controls and administrative investigation should be considered crucial because they intervene at early stages, when corruption has been developing, allowing real prevention.
    This article analyses some points that we should remember in order to connect controls and corruption correctly: first of all, controls have a hybrid nature: not only are they a way to combat or prevent corruption but also they are real occasions for corrupt transactions; furthermore, controls are a cost and administrative capacity of control is limited; moreover, planning controls is not a simple task; and finally, sanctions following controls must be effective in order to deter.
    The article also analyzes what is needed in matters of corruption controls, with special reference to good rules (aiming at a legal system with fewer but better rules, rules which work as incentives, rules capable of designing good institutions). There is also a need for good practices (in order to improve the understanding of corruption processes, to reduce controls, to cooperate in investigating cases of corruption).
    Finally, the article warns about the fact that corruption controls produce more bureaucracy and that early detection of corruption would mean, in this perspective, to make a diagnosis of ‘corruptibility’ starting from rules.


Maria De Benedetto
Full Professor, Roma Tre University.
Article

Can Imprisonment Be Cheaper? The Case for Private Prisons

Journal European Journal of Law Reform, Issue 4 2015
Keywords costs, criminal law, law and economics, private prisons, privatization
Authors Elena Kantorowicz-Reznichenko
AbstractAuthor's information

    Custody is the most expensive method of punishment in the Western world, as compared to other alternatives. Although expensive, prison is an indispensible instrument to deal with judgement proof or dangerous offenders. Hence, by using the law and economics approach, this article explores prison privatization as an instrument for less expensive incarceration. This method has the potential to reduce the prison costs without hampering its quality. However, a restructuring of the current contracts is needed to achieve this purpose. The attention given to the topic of private prisons by the law and economics scholars, especially in the European context, is limited, and this article attempts to fill this gap. The present article applies arguments from the bureaucracy and political science literature to explain the inefficiencies of public prisons. Subsequently, the potential problems of private prisons are presented through the principle-agent model and solutions are offered.


Elena Kantorowicz-Reznichenko
Rotterdam Institute of Law & Economics (RILE), Erasmus School of Law, Erasmus University Rotterdam, The Netherlands.
Article

Access_open Austerity’s Effect on English Civil Justice

Journal Erasmus Law Review, Issue 4 2015
Keywords Austerity, court fees and legal aid, adversarial and inquisitorial process, McKenzie Friends, simplified process
Authors John Sorabji
AbstractAuthor's information

    This article considers the effect of austerity-induced public spending cuts on the English civil justice system. In doing so it initially examines two fundamental changes engendered by the effect austerity has had on civil court fees and legal aid: first, a challenge to the traditional commitment in English procedure to adversarial process, and a concomitant increase in inquisitorial or investigative processes; and secondly, the growth in use of unqualified individuals to act as advocates in court for individual litigants who are unable to afford legal representation. It then turns to consider what, if any, effect austerity has had on simplified processes available in English civil procedure.


John Sorabji
DPhil, Senior Fellow, UCL Judicial Institute, University College, London, email: j.sorabji@ucl.ac.uk.
Article

Access_open Canadian Civil Justice: Relief in Small and Simple Matters in an Age of Efficiency

Journal Erasmus Law Review, Issue 4 2015
Keywords Canada, small and simple matters, austerity, civil justice, access to justice
Authors Jonathan Silver and Trevor C.W. Farrow
AbstractAuthor's information

    Canada is in the midst of an access to justice crisis. The rising costs and complexity of legal services in Canada have surpassed the need for these services. This article briefly explores some obstacles to civil justice as well as some of the court-based programmes and initiatives in place across Canada to address this growing access to justice gap. In particular, this article explains the Canadian civil justice system and canvasses the procedures and programmes in place to make the justice system more efficient and improve access to justice in small and simple matters. Although this article does look briefly at the impact of the global financial crisis on access to justice efforts in Canada, we do not provide empirical data of our own on this point. Further, we conclude that there is not enough existing data to draw correlations between austerity measures in response to the global crisis and the challenges facing Canadian civil justice. More evidence-based research would be helpful to understand current access to justice challenges and to make decisions on how best to move forward with meaningful innovation and policy reform. However, there is reason for optimism in Canada: innovative ideas and a national action plan provide reason to believe that the country can simplify, expedite, and increase access to civil justice in meaningful ways over the coming years.


Jonathan Silver
Jonathan Silver, B.A. Honors, J.D. 2015, Osgoode Hall Law School.

Trevor C.W. Farrow
Trevor C.W. Farrow is Professor and Associate Dean, Osgoode Hall Law School. He is very grateful to Jonathan Silver, who took the lead in researching and writing this article.

Xandra Kramer
Xandra Kramer is a professor at Erasmus School of Law, Erasmus University Rotterdam, and Deputy Judge at the District Court of Rotterdam.

Shusuke Kakiuchi
Shusuke Kakiuchi is a professor at the University of Tokyo.
Article

Access_open Relief in Small and Simple Matters in Belgium

Journal Erasmus Law Review, Issue 4 2015
Keywords Belgium, small matters, simple matters, recovery of unchallenged claims, summary order for payment
Authors Stefaan Voet
AbstractAuthor's information

    This article is based on a national report that was written for the XVth World Congress of the International Association of Procedural Law that was held in Istanbul in May 2015 and that focused on Effective Judicial Relief and Remedies in an Age of Austerity. It first of all sketches the general judicial context in Belgium and some of its relevant features: the judicial organisation, the goals of the civil justice system, the course of an ordinary civil lawsuit, the role of the court, and the litigation costs. Next, a detailed and critical overview of the current and future procedures that offer relief in small and simple matters is given. The current summary order for payment procedure, which was introduced in 1967, did not meet its goals. The article concludes that a new trend is emerging in Belgium, namely keeping small and unchallenged claims outside the judiciary and providing for cheaper and more efficient alternatives.


Stefaan Voet
Stefaan Voet is an Associate Professor of Law at the Katholieke Universiteit Leuven and a Visiting Professor at the Universiteit Hasselt.
Article

Access_open The Impact of the Economic Downturn in the Spanish Civil Justice System

Journal Erasmus Law Review, Issue 4 2015
Keywords judiciary, judge-made justice, court fees, legal aid, ADR-methods
Authors Laura Carballo Piñeiro and Jordi Nieva Fenoll
AbstractAuthor's information

    The Spanish justice system has been shaken by the economic downturn as many other institutions have. This article addresses in the first place some statistical data that shed light as regards to the number of judges and the costs and length of the procedure in Spain. These figures help to understand, in the second place, the impact of austerity measures on the judiciary, namely, the freeze on the hiring of judges and the establishing of high court fees. While they mainly concern the supply side of justice services, others such cost reductions in legal aid have had, in the third place, an impact on the demand side, driving many citizens to social exclusion and to resorting to self-defence mechanisms. The final part of this article addresses some remedies that may alleviate judiciary’s workload, but that fall short of doing it. All in all, the Spanish justice system seems to require a holistic approach to patch up edges, but one in which the role of judge-made justice in a democratic society has to be central again.


Laura Carballo Piñeiro
Laura Carballo Piñeiro is Associate Professor of Private International Law at the Common Law Department of the University of Santiago de Compostela.

Jordi Nieva Fenoll
Jordi Nieva Fenoll is Professor of Procedure Law at the Administrative and Procedure Law Department of the University of Barcelona.
Article

Access_open The 2015 Proposal for an EU Directive on the Societas Unius Personae (SUP)

Another Attempt to Square the Circle?

Journal The Dovenschmidt Quarterly, Issue 2 2015
Keywords EU law harmonisation, single member private companies, Proposed SUP Directive, European ‘trade mark’
Authors Stephan Rammeloo
AbstractAuthor's information

    Stimulating business throughout the Single Market, not in the least for Small- and Medium-Sized Enterprises (SMEs), is one of the key priorities of the EU’s ten-year growth strategy, ‘Europe 2020’. One of the strategies to achieve this goal is the recently developed legal concept of a ‘European trademark’ for single member private limited liability companies duly established under the laws of any EU Member State and complying with preconditions required by a draft Proposal for a Directive on the Societas Unius Personae (SUP). The 2015 Compromising text, having replaced the initial 2014 Draft for a Directive requires to be analysed in view of its ‘scope’ (functional and geographical reach). Furthermore, attention is given to matters of formation and ‘long distance’ registration, share capital, internal organization and functioning of company organs, the functioning of SUP’s as stand alone companies or SUP’s embedded in company group or chain structures. Critical observations inter alia focus on relinquished provisions on the SUP’s seat as well as the powers of SUP organs and on ‘national law’ creeping in the Proposed Directive more and more at the cost of legal certainty and legal coherence between EU law instruments relevant to private limited liability companies.


Stephan Rammeloo
Associate Professor EU Company Law, Private International Law and Comparative Law, Maastricht University.

P.J. Blount
University of Mississippi, USA.

P.J. Blount
University of Mississippi, USA.

    In her reply to critics, Jean Cohen responds to some of the main criticisms and remarks raised by the respondents.


Professor Jean L. Cohen
Jean L. Cohen is the Nell and Herbert M. Singer Professor of Political Thought and Contemporary Civilization at the Department of Political Science of Columbia University (New York) and will be the Emile Noel Fellow at the Jean Monet Center of the NYU Law School from January till June 2016.
Article

Access_open Freedom of Religion, Inc.: Whose Sovereignty?

Journal Netherlands Journal of Legal Philosophy, Issue 3 2015
Keywords accommodation, freedom of religion, political theology, liberalism, liberty of conscience
Authors Jean L. Cohen
AbstractAuthor's information

    This article focuses on an expansive conception of religious freedom propagated by a vocal group of American legal scholars – jurisdictional pluralists – often working with well-funded conservative foundations and influencing accommodation decisions throughout the US. I show that the proliferation of ‘accommodation’ claims in the name of church autonomy and religious conscience entailing exemption from civil regulation and anti-discrimination laws required by justice have a deep structure that has little to do with fairness or inclusion or liberal pluralism. Instead they are tantamount to sovereignty claims, involving powers and immunities for the religious, implicitly referring to another, higher law and sovereign than the constitution or the people. The twenty-first century version of older pluralist ‘freedom of religion’ discourses also rejects the comprehensive jurisdiction and scope of public, civil law – this time challenging the ‘monistic sovereignty’ of the democratic constitutional state. I argue that the jurisdictional pluralist approach to religious freedom challenges liberal democratic constitutionalism at its core and should be resisted wherever it arises.


Jean L. Cohen
Jean L. Cohen is the Nell and Herbert M. Singer Professor of Political Thought and Contemporary Civilization at the Department of Political Science of Columbia University (New York) and will be the Emile Noel Fellow at the Jean Monet Center of the NYU Law School from January till June 2016.
Article

Access_open Directors’ Disqualification in the Netherlands

An International Comparative Re-Evaluation of an Amended Disqualification Proposal

Journal The Dovenschmidt Quarterly, Issue 1 2015
Keywords directors’ disqualification, directors’ liability, fraud, company law, insolvency law
Authors Tom Reker
AbstractAuthor's information

    In response to the effects of the global financial crisis on bankruptcy tendencies and the role of fraudulent company directors within that context, the Dutch government has introduced a proposal for a civil law directors’ disqualification instrument. This proposal aims to prevent both fraudulent conduct (by barring directors) and financial harm to corporate stakeholders, as well as to safeguard competitiveness and the trust which is necessary for effective trade. The fact that Dutch criminal law already allows for disqualification of directors in certain circumstances, which are partly similar to those in the proposal, raises doubts about the necessity of a civil law equivalent. This article concludes that the current proposal seems to have lost value vis-à-vis an earlier draft due to alterations to the disqualification and exculpation criteria, which may result in an overlap of the civil law and criminal law instruments. Consequently, there is a more pressing need for demarcation and reallocation of certain aspects of the proposal. By comparing the proposal with foreign (UK, US, Australian and German) counterparts, several suggestions are formulated to both counteract the overlap which the proposal may cause in Dutch law and to contribute to a model of effective disqualification instruments in general.


Tom Reker
Tom Reker recently graduated from the Leiden Law School, Leiden University, Leiden, The Netherlands. Email: tomreker_1@hotmail.com.
Article

Access_open Corporate Social Responsibility via Shareholders’ Proposals

Journal The Dovenschmidt Quarterly, Issue 1 2015
Keywords corporate social responsibility, shareholders, Rule 14a-8, social proposals, strategy
Authors Maria Paz Godoy Uson
AbstractAuthor's information

    Can shareholders’ proposals be considered as a mainstream alternative to incorporate social and environmental policies into the core businesses strategy? Proposing non-financial resolutions at the general meeting of shareholders is a form of shareholders’ activism that is shaping company’s direction. The American court case Lovenheim v. Iroquois Brands, Ltd. confirms that social and environmental issues, when significantly related to the core business, can give rise to new business directions firmly promoted by shareholders, resting authorial power to the board of directors in conducting the company’s direction. The US SEC Rule 14a-8 is widely used by social activists and institutional investors to influence the direction of business in becoming more sustainable. In virtue of the American Rule 14a-8, shareholders may include proposals in the company’s proxy materials and, thereby, compel a vote on the issue at the annual shareholders’ meeting. The result is that American shareholders’ proposals are being considered as an effective gateway to improve corporations’ social and environmental behaviour. This article examines, from a comparative perspective, the further developments of shareholders’ social proposals with the attempt to incorporate social and environmental policies into the core business. The article also suggests that the increasing demand of social proposals promoted by American shareholders versus the limited activity of shareholders’ proposals in Continental European jurisdictions is precipitating the process of converge between the main corporate governance models; the shareholder-oriented model and the stakeholder-oriented model, respectively. The issue of CSR via shareholders’ proposals as presented here is primarily based on literature and various cases related to SEC 14a-8, more in particular on lessons drawn from Lovenheim v. Iroquois Brands, Ltd.


Maria Paz Godoy Uson
PhD Fellow Maastricht University.
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