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Year 2012 x

    In deze bijdrage wordt op experimentele wijze gezocht naar een antwoord op de vraag wat de rechtvaardiging is van de beperking van de handelingsbekwaamheid van de minderjarige en het het bewind over zijn vermogen. Bij wijze van experiment wordt een fictieve regeling in het leven geroepen, het zogenaamde tachtigplusbewind. Op grond van deze regeling wordt eenieder die de tachtigjarige leeftijd passeert van rechtswege beperkt in zijn handelingsbekwaamheid en verliest hij het bewind over zijn vermogen. Vervolgens wordt de vraag gesteld waarom een dergelijk tachtigplusbewind niet wenselijk is en de bescherminsgmaatregelen die minderjarigen treffen wel. Deze bijdrage is een onderdeel van een breder dissertatieonderzoek met als titel 'Minderjarigen en (de zorg voor hun) vermogen.'
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    This contribution seeks, in an experimental manner, to find an answer to the question of what is the justification for restriction on the capacity of the minor and the administration of their assets. By way of experimentation, a fictitious arrangement is created, the so-called ‘eighty-plus-fiduciary-administration’. Under this scheme, anyone who is over the age of eighty will have their legal capacity limited, and lose control of their assets. The question then arises as to why this eighty plus rule is not desirable whilst the protective rules for minors are widely accepted. This contribution is part of a wider dissertation research entitled ‘Minors and (the care of) their assets’.


Mr. Hans ter Haar
Hans ter Haar is a lecturer in notarial law at the University of Groningen.
Article

What Virtues and Formalities Can Do for Corporate Social Responsibility and the Rule of Law in China?

仁 礼 誠 人, 人 必 治 法, 法 修 其 德, 德 治 其 國

Journal European Journal of Law Reform, Issue 4 2012
Keywords Chinese rule of law, Corporate Social Responsibility (CSR), sustainability, Confucianism, formative free speech
Authors Jin Kong
AbstractAuthor's information

    This article explores sustainability problems in China and foreign interests on the ‘rule of law’ problems there. The article undertakes an organic process improvement method (Define, Measure, Analyze, Control – ‘DMAC’) in hope to improve the west’s expectations of China and China’s own becoming of a rule of law nation. Corruption and environmental problems are of particular interest; China’s legal and political reform histories serve as our starting point; synergies between Confucian mercantile philosophy and modern corporate social responsibility principles are the undertones. The article will first Define the scope of China’s environmental, social, and economic problems; it will Measure the effects of these problems by observing the ontological and metaphysical uniqueness of the Chinese notion of ‘rule of law’ from a historical perspective; the Analysis will involve identifying synergies between Confucianism and Corporate Social Responsibility (hereinafter ‘CSR’); from these observations, this article will submit to Controling steps. Consequently, this article recognizes the need for ‘humanity’ and ‘formality’, in the Chinese sense, to aid one’s becoming of a law-biding person in China. The Chinese people will Control the laws that matter to them; those laws will evolve to cure the virtues of the people they are to govern.


Jin Kong
Jin Kong is a JD Candidate at the Robert H. McKinney School of Law. Jin also writes on the topic of sustainability at his blog, The Green Elephant (dot) US – <www.thegreenelephant.us>. The Chinese subtitle is loosely translated as follows: ‘If there is humanity and formality to aid one’s becoming a law-abiding person in China, they wil control the laws that matter to them; those laws will surely cure the virtues of its people and it is from those virtues a nation can govern.’
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.
Article

Occurrence of Disruptive Behaviour in Dutch Civil Procedures

An Empirical Study

Journal European Journal of Law Reform, Issue 4 2012
Keywords civil procedure, case management, procedural justice, procedural sanctions, procedural rules
Authors Martin Gramatikov and Stéphanie van Gulijk
AbstractAuthor's information

    In 2002, the civil procedure in the Netherlands was reformed. A fairly simple system of positive and negative stimuli was set up in order to ensure that the civil process develops in an efficient and timely manner. In this article, we explore the prevalence of process-disturbing behaviour as well as the response of the judges to such behaviour. Ninety eight civil cases were observed. We also conducted interviews with judges, lawyers and parties involved in these cases. The main finding is that in almost all cases there is at least one process-disturbing behaviour. On average there are 3.4 instances of such behaviour per case. Most often the disturbing behaviour is part of the categories communication problems. As it concerns the reaction of the judges, we see patterns of various strategies. Judges are not immediately responding actively to disturbing behaviour. However, when a certain threshold has been reached, the judges tend to take active steps and apply the tools they have. Most often, judges use different sorts of communication interventions. Procedural instruments for counteracting disturbing behaviour are used vey rarely. Our interpretation is that judges in the Netherlands are concerned about process efficiency but are also aware of the procedural justice and particularly interpersonal justice aspects of the process. We recommend that initial and ongoing legal education and training pays more attention on the communication and interpersonal skills and abilities involved in dispute resolution.


Martin Gramatikov
Martin Grammatikov is senior researcher at Tilburg University, Private Law department, and Head of Measurement and Evaluation at the Hague Institute for the Internationalisation of Law.

Stéphanie van Gulijk
Stéphanie van Gulijk is senior researcher and lecturer at Tilburg University, Private Law department, and Legal counsel at Poelmann van den Broek Laywers. Both authors cooperated in the research project that is central in this paper: M. Barendrecht, S. van Gulijk, M. Gramatikov, P. Sluijter, De goede procesorde in beeld. Over gedrag van procespartijen en de regiefunctie van de rechter, in Research Memoranda Raad voor de rechtspraak, nummer 1-2011, jaargang 7.
Article

Gender Equality Laws in the Post Socialist States of Central and Eastern Europe

Mainstream Fixture or Fizzer?

Journal European Journal of Law Reform, Issue 4 2012
Keywords gender equality laws, enforcement mechanisms, rule of law, post-socialist states, European Union
Authors Christine Forster and Vedna Jivan
AbstractAuthor's information

    In Central and Eastern European countries, the enactment of gender equality laws (GELs), defined as stand-alone national legislation that provide an overarching legislative response to gender discrimination as distinct from the traditional approach of incorporating gender equality provisions into existing legislation or constitutions, has been a marked regional trend since the collapse of the Soviet Union. However, rather than being driven by domestic movements for change, GELs seem primarily to have emerged due to pressure from development agencies, potential trading partners and donor organisations which predicate their assistance and business on the establishment of the ‘rule of law’ and of particular relevance in the region the desire to join the European Union (EU), which requires potential members to introduce gender equality legislation as part of the communtaire aquis. Despite the widespread enactment of GELs in the region, research suggests that the implementation of GELs has been slow, inefficient and in some cases non-existent. Reasons posited for this include a lack of judicial familiarity with new concepts contained in the legislation, the use of legislation taken from models in existing member states, lack of information disseminated about the new laws to relevant parties, weak political support and capacity weakness in states that are resource stretched. This article considers a further reason – the weakness of the enforcement and implementation mechanisms in the laws themselves and argues that despite the placement of expansive positive duties on a range of public and private actors in many of the GELs, the implementation and enforcement mechanisms of the fifteen GELs considered are weak. Consequently, despite their remarkable scope the duties created under the GELs are largely symbolic and will continue to be so unless, such legislation is amended to include mechanisms to enable the realization of those duties in practice.


Christine Forster
Christine Forster is a senior lecturer at the Faculty of Law of the University of New South Wales, Australia.

Vedna Jivan
Vedna Jivan is Senior Lecturer, UTS Faculty of Law, Australia.

P. Masambu
Article

Access_open De liberale canon: argumenten voor vrijheid

Journal Netherlands Journal of Legal Philosophy, Issue 2 2012
Keywords enforcement of morals, liberalism, liberty, political liberalism, Rawls
Authors Alex Bood
AbstractAuthor's information

    This article examines how a liberal public morality can be most successfully defended against perfectionism. First of all the five most important liberal arguments for freedom are taken from what is called the liberal canon: a number of characteristic works of John Locke, Immanuel Kant, John Stuart Mill, Isaiah Berlin, Joseph Raz, Ronald Dworkin, and John Rawls. These five arguments are identified as: social and political realism, respect for autonomy, fallibility of ideas, pluralism, and respect for reasonableness. Next, the persuasiveness of these arguments is assessed, starting with the argument of respect for reasonableness, which is at the heart of Rawls’s political liberalism. It is concluded that in itself this argument is not strong enough to persuade perfectionists. A powerful defence of a liberal public morality needs the other arguments for freedom as well. Finally, the paper outlines how these other arguments can strengthen the argument of respect for reasonableness in a coherent manner.


Alex Bood
Alex Bood is Research Manager at the Dutch Public Prosecution’s Office for Criminal Law Studies (WBOM).

Irina Baraliuc
Irina Baraliuc is a PhD researcher at the Research Group Law, Science, Technology & Society (LSTS) at the Vrije Universiteit Brussel.

Sari Depreeuw
Sari Depreeuw is a postdoctoral researcher at the Research Group Law, Science, Technology & Society (LSTS) at the Vrije Universiteit Brussel and an attorney-at-law at the Brussels bar.

Serge Gutwirth
Serge Gutwirth is Professor at the Faculty of Law and Criminology of the Vrije Universiteit Brussel and director of the Research Group Law, Science, Technology & Society (LSTS).
Article

Scrutiny of Legislation in Uganda: A Case for Reform

Journal European Journal of Law Reform, Issue 2-3 2012
Keywords legislative scrutiny, emerging trends
Authors Isabel Omal
AbstractAuthor's information

    This article seeks to explain the significance of carrying out extensive legislative scrutiny in any jurisdiction, with emphasis being placed on the Ugandan experience as far as legislative scrutiny is done. As Parliaments all over the world continue to make laws that govern their citizens, it is only right that before any law is enacted, there must be adequate mechanism to ensure quality in the law in terms of substance and effect of the legislative proposal which ultimately impacts on good governance. Best practices and emerging trends in legislative scrutiny is drawn from the United Kingdom and Australia, which have put in place elaborate procedures and mechanism to ensure that all their legislative proposals are thoroughly scrutinized before they passed into law: and that even after the law has been enacted, it can be evaluated to see the effect of the law. Pre-legislative scrutiny and post-legislative scrutiny are thus important tools to ensure quality in legislation.


Isabel Omal
The author is a Legislative Lawyer working at the Law Commission in Uganda; she is also a fellow of the Ford Foundation-IFP scholarship and a member of Commonwealth Association of Legislative Counsel (CALC).
Article

Legal Meaning in the Interpretation of Multilingual Legislations

Comparative Analysis of Rwanda, Canada and Ireland

Journal European Journal of Law Reform, Issue 2-3 2012
Keywords intention of the Parliament, multilingual ambiguous provisions, interpretation of laws, multilingual legislations interpretation approach, comparative analysis
Authors Froduard Munyangabe
Abstract

    When construing multilingual Laws, the use of rules and methods generally used in the monolingual statutory interpretation becomes more complicated due to a multiplicity of texts equally authentic. Also, the pre-eminence of one language version to the other version(s) does not facilitate the interpreter because if the other language version can shade light to elucidate the first, it can also increase uncertainty about the first. This dilemma leads to the question of knowing whether there could not be another appropriate approach to moderate these two options.
    The answer is derived from a comparison of the prevalence of one language version approach both adopted in Rwanda and Ireland and the equal authenticity rule adopted in Canada. The comparison is made by analysing the sequential steps of approaches used differently in the three respective multilingual jurisdictions in order to point out gaps of the two approaches.


Froduard Munyangabe
Article

Why the Inflation in Legislation on Women’s Bodies?

Journal European Journal of Law Reform, Issue 2-3 2012
Keywords legislation and control of women’s bodies, legislative drafting and the female autonomy, social and political theories and control of women’s bodies
Authors Venessa McLean
AbstractAuthor's information

    This article seeks to explore how historical patriarchal theories have crept into the world’s legal systems to date and has led to inflation in legislation upon women’s bodies. The article highlights how legislation has been used as a tool to deny women autonomy over their bodies by placing unnecessary controls upon women’s bodies by legislative, social and political systems and concludes by an examination of the discipline legislative drafting and how an active approach through drafting activism on the part of legislative drafters and policy makers may combat the inflation in legislation upon women’s bodies.


Venessa McLean
The author currently works at The Office of the Chief Parliamentary Counsel in Jamaica as a Legislative Officer. She is also Visiting Lecturer on the Special Narcotic Investigation Course Carribbean Regional Drug Law Enforcement Centre, Jamaica and Visiting Lecturer University of London External Degree Programme.
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

The Challenges of Rwandan Drafters in the Drafting Process for Good Quality Legislation

Journal European Journal of Law Reform, Issue 2-3 2012
Keywords quality of legislation, Rwanda, drafting process, drafting instructions, language and drafting, precision, clarity
Authors Alain Songa Gashabizi
Abstract

    Rwanda is a country in search a stable legal system, which includes the drafting of quality legislation. Following the events of the 1994 genocide the lack of experienced drafters and the civil law method of decentralized drafting the Rwandan legislation tends to be of bad quality mainly because of the bad quality drafts provided by the various, often unidentifiable sources of drafting. This article spells out the specific problems that the Rwandan drafter faces and offers solutions by means of a case study. The article concludes by making some specific recommendations.


Alain Songa Gashabizi

Prof. Dr. Christiana Fountoulakis
University of Fribourg, Switzerland
Article

Current Developments in the National Laws of Maintenance

A Comparative Analysis

Journal European Journal of Law Reform, Issue 1 2012
Keywords child maintenance, maintenance after divorce, calculation of maintenance, enforcement of maintenance claims, social security benefits
Authors Dieter Martiny
AbstractAuthor's information

    Maintenance law in European jurisdictions is in a state of constant transformation. Recent reforms, however, show some areas of major concern. In child maintenance law, particularly joint custody of the parents and an alternating residence of the child make the need for a better calculation of maintenance more apparent. The use of guidelines with tables and formulas is on the rise. In maintenance after divorce, the growing influence of the principle of self-sufficiency is leading to reductions of the maintenance payments made to former spouses. Enforcement of maintenance claims, the role of the State and the relationship with social security benefits remain difficult.


Dieter Martiny
Professor emeritus, European University Viadrina, Frankfurt (Oder)/Hamburg. A shorter version was presented at the Annual Conference on European Family Law of the Academy of European Law in Trier, 30 September 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.
Article

Trade in Oil and Export Restrictions

Taking the Organization of the Petroleum Exporting Countries to the WTO Court

Journal European Journal of Law Reform, Issue 1 2012
Keywords WTO, dispute settlement, US, OPEC, oil
Authors Bashar H. Malkawi
AbstractAuthor's information

    The Organization of the Petroleum Exporting Countries (OPEC), as seen by observers, resembles a greedy international cartel that preys on the public in defiance of market competition. High oil prices are considered as a principal cause of the US economic woes. Some US congressmen pinpointed OPEC’s alleged inconsistency with the World Trade Organization (WTO) rules and called upon the US administration to open dispute settlement proceedings against OPEC. This article discusses the legal issues arising from a US action at the WTO level against OPEC countries. The first sections of the article comprise an institutional review of the WTO and OPEC. The article addresses the interplay between the WTO and OPEC. It then illustrates the central provisions of the WTO that can be used for arguments and counter-arguments concerning such a WTO action. It culminates with a set of concluding thoughts.


Bashar H. Malkawi
Associate Professor of Commercial Law, University of Sharjah, UAE. He received his LL.B from Yarmouk University in 1999, LL.M from University of Arizona College of Law in 2001, S.J.D from American University, Washington College of Law in 2005. The author would especially like to thank the two outside reviewers for their direction, feedback and invaluable insight. He also thanks the law journal editors and staff writers for their hard work in polishing the article.
Article

Access_open Hoe neutraal is kerkfinanciering?

Kritische analyse van het Belgische erkennings- en ondersteuningsbeleid

Journal Netherlands Journal of Legal Philosophy, Issue 1 2012
Keywords liberalism, neutrality, church-state policy, (anti)perfectionism, Belgium
Authors Leni Franken and Patrick Loobuyck
AbstractAuthor's information

    In this article, the authors explore how active state support for religions and worldviews could be in accordance with the principle of liberal neutrality. They focus on the Belgian church-state policy because this policy is characterised by an explicit and extended form of active support for recognised worldviews. If this policy is in accordance with liberal neutrality, some other, weaker forms of state support for religions and worldviews may also be in accordance with this neutrality principle. In the light of these considerations, the authors make some suggestions about possible ways to bring the Belgian church-state policy more in accordance with liberal neutrality.


Leni Franken
Leni Franken is a researcher at the Centre Pieter Gillis of the University of Antwerp, where she prepares a PhD on church, state and neutrality.

Patrick Loobuyck
Patrick Loobuyck is Associate Professor at the Centre Pieter Gillis of the University of Antwerp and guest professor at the Department of Philosophy and Moral Science at Ghent University.
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