The Global Forum on transparency and exchange of information for tax purposes has undertaken peer reviews on the implementation of the global standard of exchange of information on request, both from the perspective of formalities available and from the perspective of actual implementation. In the review reports Global Forum advises jurisdictions on required amendments of regulations and practices. With these advices, the Global Forum exercises regulatory authority. The article assesses the legitimacy of the exercise of such authority by the Global Forum and concludes that the exercise of such authority is not legitimate for the reason that the rule of law is abused by preventing jurisdictions to adhere to due process rules. |
Search result: 47 articles
Year 2017 xArticle |
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Journal | Erasmus Law Review, Issue 2 2017 |
Keywords | Global Forum on Transparency and Exchange of Information, exercise of regulatory authority, due process requirements, peer review reports, legitimacy |
Authors | Leo E.C. Neve |
AbstractAuthor's information |
Article |
Codification in a Civil Law Jurisdiction: An Italian Perspective |
Journal | European Journal of Law Reform, Issue 4 2017 |
Keywords | civil law jurisdictions, codification, consolidation, legislative drafting, judicial review |
Authors | Enrico Albanesi |
AbstractAuthor's information |
The aim of this article is to describe the mechanism of codification in a civil law jurisdiction. The case study will be based on the Italian system. The history and developments of the Italian codification will also be described here. |
Article |
Codification in a Civil Law Jurisdiction: A Northern European Perspective |
Journal | European Journal of Law Reform, Issue 4 2017 |
Keywords | codification, types, civil law, legal certainty, ICT |
Authors | Patricia Popelier |
AbstractAuthor's information |
In western civil law jurisdictions, 19th century large-scale codification projects have made way for more specific, technical operations. While several terms for various operations are used – from coordination to consolidation or recasting – they all serve to compile normative texts within one single document for the sake of clarity and legal certainty. A more fundamental distinction can be made between formal and substantial codifications, the one more technical, the other large and fundamental. Substantial law reforms are problematized in this era of multilevel governance and digitalization. Nowadays, substantial codifications are essentially non-exhaustive, inconsistent, and fragmentized. Also, they rely upon formal consolidations, and generate new formal consolidations. While formal consolidations are still treated as logistic projects, more developed ICT tools may enable their transformation into continuous processes. |
Editorial |
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Journal | European Journal of Law Reform, Issue 4 2017 |
Authors | Jonathan Teasdale |
Author's information |
Article |
Time for a Code: Reform of Sentencing Law in England and Wales |
Journal | European Journal of Law Reform, Issue 4 2017 |
Keywords | Law Commission, codification, consolidation, consultation, criminal procedure |
Authors | Harry O’Sullivan and David Ormerod |
AbstractAuthor's information |
The Law Commission of England and Wales is currently working to produce a New Sentencing Code that will seek to remedy problems with one of the most heavily used and unsatisfactory areas of statutory law. It responds to the problems of complexity and inaccessibility in the current sentencing legislation, and more fundamentally in the process by which sentencing legislation is created and implemented. The aim is to introduce the new Code as a consolidation Bill in 2018 with a view to it being in force from early 2019. This article provides an overview of the problems endemic to the current law and how the Commission envisages that the new Sentencing Code will provide not only a remedy, but a lasting one. |
Article |
The Reform and Harmonization of Commercial Laws in the East African Community |
Journal | European Journal of Law Reform, Issue 4 2017 |
Keywords | law reform, harmonization of laws, commercial laws, legal transplants, East African Community |
Authors | Agasha Mugasha |
AbstractAuthor's information |
The partner states in the East African Community (EAC) have modernized their commercial laws to claim their post-colonial identity and facilitate development. While law reform and the harmonization of laws are both methods of shaping laws, the national law reform programmes in the EAC mainly aim to ensure that the laws reflect the domestic socioeconomic circumstances, in contrast to the harmonization of national commercial laws, which focuses on the attainment of economic development. This article observes that the reformed and harmonized commercial laws in the EAC are mainly legal transplants of the principles of transnational commercial law that have been adapted to meet domestic needs and aspirations. |
Article |
The Legitimacy of Final Statements and Reports of National Contact PointsAn Empirical Analysis of (Final) Statements and Reports of the UK, US and Dutch National Contact Point of the Organisation for Economic Co-operation and Development (2001-2016) |
Journal | Corporate Mediation Journal, Issue 2 2017 |
Authors | Sander van ’t Foort, Vivan IJzerman, Jasmin Lagziel e.a. |
Author's information |
ECJ Court Watch |
ECJ 14 September 2017, case C-168/16 and C-169/16 (Ryanair), Private international lawSandra Nogueira and Others – v – Crewlink Ireland Ltd and Miguel José Moreno Osacar – v – Ryanair Designated Activity Company |
Journal | European Employment Law Cases, Issue 4 2017 |
Keywords | Private international law |
Abstract |
When determining the place from which airline cabin crewmembers habitually carry out their work, the concept of ‘home base’ is a significant indicator. |
Case Reports |
2017/41 New approach to burden of proof in discrimination claims (UK) |
Journal | European Employment Law Cases, Issue 4 2017 |
Keywords | General discrimination |
Authors | Hannah Price |
AbstractAuthor's information |
The Employment Appeal Tribunal (EAT) has adopted a new approach to the burden of proof in discrimination cases. Up to now, the courts have held that the claimant must, in the first instance, prove sufficient facts from which (in the absence of any other explanation) an inference of discrimination can be drawn. Once the claimant has established these facts, the burden of proof shifts to the respondent to show that he or she did not breach the provisions of the Act. The EAT has now said that courts should consider all of the evidence (both the claimant’s and the respondent’s) when making its finding of facts, in order to determine whether or not a prima facie case of discrimination has been made out. It is then open to the respondent to demonstrate that there was no discrimination. This is an important development in how the burden of proof is dealt with in discrimination cases. It clarifies that it is not only the claimant’s evidence which will be scrutinised in determining whether the burden of proof has shifted, but also the respondent’s evidence (or lack thereof). |
Case Reports |
2017/51 A closer look at punitive sanctions law and the freedom of service provision (NL) |
Journal | European Employment Law Cases, Issue 4 2017 |
Keywords | Fundamental rights |
Authors | Bart J. Maes |
AbstractAuthor's information |
The highest administrative court in the Netherlands has delivered a razor-sharp ruling on the intra-community service provision set out in Articles 56 and 57 of the Treaty on the Functioning of the European Union). This concerns ‘new’ EU-nationals who are still under transitional measures with regard to access to the labour markets of ‘old’ EU Member States. The judgment was preceded by a request from the Chairman to a State Councillor Advocate General to deliver his opinion on various aspects of punitive administrative law practice in the Netherlands. Both the opinion and the judgment are a welcome clarification and addition (or even correction) on the practice. |
ECJ Court Watch |
ECJ 21 September 2017, case C-149/16 (Halina Socha v. Szpital Specjalistyczny), Collective redundanciesHalina Socha, Dorota Olejnik and Anna Skomra – v – Szpital Specjalistyczny im. A. Falkiewicza we Wrocławiu |
Journal | European Employment Law Cases, Issue 4 2017 |
Keywords | Collective redundancies |
Abstract |
A unilateral amendment of employment conditions qualifies as ‘redundancy’ within Directive 98/59 on collective redundancies, if the employee’s refusal entails the termination of the employment contract. |
ECtHR Court Watch |
ECtHR 5 September 2017 (Barbulescu), Application no. 61496/08, PrivacyBarbulescu – v – Romania, Romanian case |
Journal | European Employment Law Cases, Issue 4 2017 |
Keywords | Fundamental rights, Privacy |
Abstract |
In Barbulescu, the Court examined for the first time a case concerning the monitoring of an employee’s electronic communications by a private employer. The Grand Chamber decided differently from the Chamber, when it concluded that the Romanian courts, in reviewing the decision of a private employer to dismiss an employee after having monitored his electronic communications, failed to strike a fair balance between the interests at stake: namely the employee’s right to respect for his private life and correspondence, on the one hand, and his employer’s right to take measures to ensure the smooth running of the company, on the other. |
Case Reports |
2017/50 Limits on free speech that may defame an employer (CZ) |
Journal | European Employment Law Cases, Issue 4 2017 |
Keywords | Fundamental rights |
Authors | Anna Diblíková |
AbstractAuthor's information |
The Czech Supreme Court has given guidance on the limits to employees’ free speech. Employees must not engage in any conduct, even outside working hours, that could actually or potentially damage their employer’s business. Any criticism of an employer must be based on facts and not be misleading or defamatory. Inappropriate or unjustified criticism may lead to immediate termination of employment. |
Article |
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Journal | Erasmus Law Review, Issue 3 2017 |
Keywords | access to justice, procedural law, courts, civil justice reform, comparative law |
Authors | Catherine Piché |
AbstractAuthor's information |
Canada has a complex system of courts that seek to serve Canadians in view of the traditional objectives of civil justice – principally accessibility, efficiency, fairness, efficacy, proportionality and equality. The Canadian court system is generally considered by its users to work well and to have legitimacy. Yet, researchers have found that ‘there is a tendency for people involved in a civil case to become disillusioned about the ability of the system to effect a fair and timely resolution to a civil justice problem’. This article will discuss the ways in which reforms of procedural law and civil justice have originated and continue to be made throughout Canada, both nationally and provincially, as well as the trends and influences in making these reforms. With hundreds of contemporary procedural reforms having been discussed, proposed and/or completed since the first days of Canadian colonisation on a national basis and in the Canadian provinces and territory, providing a detailed analysis will prove challenging. This article will nonetheless provide a review of civil justice and procedural reform issues in Canada, focusing principally, at the provincial level, on the systems of Ontario and Quebec. Importantly, I will seek to reconcile the increasing willingness to have an economically efficient civil justice and the increased power of judges in managing cases, with our court system’s invasion of ADR and its prioritisation of informal modes of adjudication. |
Article |
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Journal | Erasmus Law Review, Issue 3 2017 |
Keywords | ECtHR, UNHRC, religious manifestations, religious minorities, empirical analysis |
Authors | Fabienne Bretscher |
AbstractAuthor's information |
Confronted with cases of restrictions of the right to manifest religious beliefs of new religious minorities formed by recent migration movements, the ECtHR and the UNHRC seem to opt for different interpretations and applications of this right, as recent conflicting decisions show. Based on an empirical legal analysis of the two bodies’ decisions on individual complaints, this article finds that these conflicting decisions are part of a broader divergence: While the UNHRC functions as a protector of new minorities against States’ undue interference in their right to manifest their religion, the ECtHR leaves it up to States how to deal with religious diversity brought by new minorities. In addition, a quantitative analysis of the relevant case law showed that the ECtHR is much less likely to find a violation of the right to freedom of religion in cases brought by new religious minorities as opposed to old religious minorities. Although this could be a hint towards double standards, a closer look at the examined case law reveals that the numerical differences can be explained by the ECtHR’s weaker protection of religious manifestations in the public as opposed to the private sphere. Yet, this rule has an important exception: Conscientious objection to military service. By examining the development of the relevant case law, this article shows that this exception bases on a recent alteration of jurisprudence by the ECtHR and that there are similar prospects for change regarding other religious manifestations in the public sphere. |
Article |
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Journal | Netherlands Journal of Legal Philosophy, Issue 2 2017 |
Keywords | rechtsfilosofie, politiek proces, onverdraagzaamheid, Wilders II |
Authors | Bert van Roermund |
AbstractAuthor's information |
Naar aanleiding van het optreden van Paul Cliteur in het Wilders II-proces rijst de vraag hoe de inzet van een rechtsgang zich verhoudt tot de eigen aard van de filosofie. Aan de ene kant vertolkt filosofie precies dat register van waarheid dat in het recht aan de orde is. Aan de andere kant is die vertolking zo oneindig open dat ze strijdt met het gesloten karakter van het recht als een proces dat conflicten moet beëindigen door gezagvolle beslissingen. Socrates’ optreden in zijn eigen proces toont aan: de slechtste dienst die de filosofie het recht kan bewijzen, is het verlengstuk te worden van het positieve recht en zich bij voorbaat beschikbaar te stellen als een vindplaats van argumenten wanneer de juridische argumenten op zijn. De slotparagraaf argumenteert dat Cliteur deze socratische les terzijde legt. Als gevolg daarvan geeft hij een geforceerde lezing van het Felter-arrest en mist hij de kern van het begrip ‘onverdraagzaamheid’. |
Article |
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Journal | Netherlands Journal of Legal Philosophy, Issue 2 2017 |
Keywords | Klaas Rozemond, Ronald M. Dworkin, Legality in criminal law, Rights conception of the rule of law, Legal certainty |
Authors | Briain Jansen |
AbstractAuthor's information |
The extensive interpretation of criminal law to the detriment of the defendant in criminal law is often problematized in doctrinal theory. Extensive interpretation is then argued to be problematic in the light of important ideals such as democracy and legal certainty in criminal law. In the Dutch discussion of this issue, Klaas Rozemond has argued that sometimes extensive interpretation is mandated by the rule of law in order to protect the rights of victims. Rozemond grounds his argument on a reading of Dworkin’s distinction between the rule-book and the rights conception of the rule of law. In this article, I argue that Dworkin’s rights conception, properly considered, does not necessarily mandate the imposition of criminal law or its extensive interpretation in court in order to protect victims’ rights. |
Article |
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Journal | Netherlands Journal of Legal Philosophy, Issue 2 2017 |
Keywords | empirical legal studies, apologies, procedural justice, humiliation, victim rights |
Authors | Vincent Geeraets and Wouter Veraart |
AbstractAuthor's information |
The central question in this article is whether an empirical-legal approach of victimhood and victim rights could offer a sufficient basis for proposals of legal reform of the legal system. In this article, we choose a normative-critical approach and raise some objections to the way in which part of such research is currently taking place in the Netherlands, on the basis of two examples of research in this field, one dealing with compelled apologies as a possible remedy within civil procedural law and the other with the victim’s right to be heard within the criminal legal procedure. In both cases, we argue, the strong focus on the measurable needs of victims can lead to a relatively instrumental view of the legal system. The legal system must then increasingly be tailored to the wishes and needs of victims. Within this legal-empirical, victim-oriented approach, there is little regard for the general normative principles of our present legal system, in which an equal and respectful treatment of each human being as a free and responsible legal subject is a central value. We argue that results of empirical-legal research should not too easily or too quickly be translated into proposals for legal reform, but first become part of a hermeneutical discussion about norms and legal principles, specific to the normative quality of legal science itself. |
Article |
On China Online Dispute Resolution MechanismFollowing UNCITRAL TNODR and Alibaba Experience |
Journal | International Journal of Online Dispute Resolution, Issue 1 2017 |
Keywords | Online Dispute Resolution (ODR), China, UNCITRAL TNODR, Alibaba experience |
Authors | Zhang Juanjuan |
AbstractAuthor's information |
The booming of cross-border e-commerce has bred online dispute resolution (ODR) mechanisms, to adapt to the growth of cross-border high-volume and low-value e-commerce transactions. China is the largest B2C e-commerce market in the world. However, along with a prosperous e-commerce market, a great number of disputes have erupted. Under this circumstance, how to establish a reasonable, convenient and efficient online dispute settlement (ODS) method is significant. This paper will briefly look at various ODS channels. By comparing the existing Chinese mechanism and UNCITRAL documents, the paper intends to help provide the reader with greater understanding of the Chinese style, point out the obstacles and challenges in China with quantitative and qualitative analysis, and make some suggestions on the future direction of China ODR system. |
Article |
The New World Order in Dispute ResolutionBrexit and the Trump Presidency |
Journal | International Journal of Online Dispute Resolution, Issue 1 2017 |
Keywords | dispute resolution, Brexit, Donald Trump, technology, trade |
Authors | Ijeoma Ononogbu |
AbstractAuthor's information |
The Brexit vote and Donald J Trump as the leader of the Free world in 2016 brought in a new world order. Two hugely important and unexpected events of 2016. Both have called into question the stability of established international commercial dispute resolution schemes in the United Kingdom and the United States in our tech savvy world. As the impact of both events unfolds, adaptations made to the existing dispute resolution schemes will be negotiated and the role that technology can play in the new approaches to international commercial dispute resolution will be determined. Consequently, there has been the changing face of Western politics after the Cold War, based on traditional group identity giving way to an uncertain landscape in which the political class struggle to define. The impact and disruption of technology in politics has given everyone a voice regardless of social class. Consequently, the EU under Mr Juncker and the UK Prime Minister seem to have mutual respect in their negotiations, given that the UK has made a number of notable concessions in order to move the trade discussions forward. |