Search result: 19 articles

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Year 2017 x
Article

Access_open Legal Legitimacy of Tax Recommendations Delivered by the IMF in the Context of ‘Article IV Consultations’

Journal Erasmus Law Review, Issue 2 2017
Keywords legitimacy, International Monetary Fund (IMF), Article IV Consultations, tax recommendations, global tax governance
Authors Sophia Murillo López
AbstractAuthor's information

    This contribution examines the legal legitimacy of ‘Article IV Consultations’ performed by the IMF as part of its responsibility for surveillance under Article IV of its Articles of Agreement. The analysis focuses on tax recommendations given by the Fund to its member countries in the context of Consultations. This paper determines that these tax recommendations derive from a broad interpretation of the powers and obligations that have been agreed to in the Fund’s Articles of Agreement. Such an interpretation leads to a legitimacy deficit, as member countries of the Fund have not given their state consent to receive recommendations as to which should be the tax policies it should adopt.


Sophia Murillo López
Sophia Murillo López, LL.M, is an external PhD candidate at the Erasmus University Rotterdam and a member of the ‘Fiscal Autonomy and its Boundaries’ research programme.
Article

Access_open The Questionable Legitimacy of the OECD/G20 BEPS Project

Journal Erasmus Law Review, Issue 2 2017
Keywords base erosion and profit shifting, OECD, G20, legitimacy, international tax reform
Authors Sissie Fung
AbstractAuthor's information

    The global financial crisis of 2008 and the following public uproar over offshore tax evasion and corporate aggressive tax planning scandals gave rise to unprecedented international cooperation on tax information exchange and coordination on corporate tax reforms. At the behest of the G20, the OECD developed a comprehensive package of ‘consensus-based’ policy reform measures aimed to curb base erosion and profit shifting (BEPS) by multinationals and to restore fairness and coherence to the international tax system. The legitimacy of the OECD/G20 BEPS Project, however, has been widely challenged. This paper explores the validity of the legitimacy concerns raised by the various stakeholders regarding the OECD/G20 BEPS Project.


Sissie Fung
Ph.D. Candidate at the Erasmus University Rotterdam and independent tax policy consultant to international organisations, including the Asian Development Bank.
Article

Access_open The Peer Review Process of the Global Forum on Transparency and Exchange of Information for Tax Purposes

A Critical Assessment on Authority and Legitimacy

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

    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.


Leo E.C. Neve
Leo Neve is a doctoral student at the Erasmus School of Law, Rotterdam.
Article

Access_open Legality of the World Bank’s Informal Decisions to Expand into the Tax Field, and Implications of These Decisions for Its Legitimacy

Journal Erasmus Law Review, Issue 2 2017
Keywords World Bank, legality, legitimacy, global tax governance, tax policy and tax administration reforms
Authors Uyanga Berkel-Dorlig
AbstractAuthor's information

    The emergence of global tax governance was triggered by common tax problems, which are now still being faced by international society of nation-states. In the creation of this framework, international institutions have been playing a major role. One of these institutions is the World Bank (Bank). However, those who write about the virtues and vices of the main creators of the framework usually disregard the Bank. This article, therefore, argues that this disregard is not justified because the Bank has also been playing a prominent role. Since two informal decisions taken in the past have contributed to this position of the Bank, the article gives in addition to it answers to the following two related questions: whether these informal decisions of the Bank were legal and if so, what implications, if any, they have for the Bank’s legitimacy.


Uyanga Berkel-Dorlig
Ph.D. candidate in the Department of Tax Law, Erasmus School of Law, Erasmus University Rotterdam, The Netherlands.
Article

Access_open Administering Justice and Serving the People

The Tension between the Objective of Judicial Efficiency and Informal Justice in Canadian Access to Justice Initiatives

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.


Catherine Piché
Dr. Prof. Catherine Piché, Université de Montreal.
Article

Equal Access to Information & Justice: A Report on the Online Dispute Resolution (ODR) Forum 2017

The Huge Potential of ODR, Greatly Underexplored (Paris, France, 12 and 13 June 2017)

Journal International Journal of Online Dispute Resolution, Issue 1 2017
Keywords ODR, equal access, justice online, information online, ICC
Authors Mirèze Philippe
AbstractAuthor's information

    This article is a brief report on the two-day conference on ‘Equal Access to Information & Justice, Online Dispute Resolution’, organized by the ICC in Paris on 12-13 June. Over 160 lawyers, magistrates, academics, researchers, dispute resolution organizations and online dispute resolution providers, from over 30 countries and representing each continent debated about the use of technology for the resolution of all types of disputes. The 60 speakers explored the future of dispute resolution and the role of technology in all legal fields, from mediation in conflict zones, to commercial and civil disputes. The huge potentials greatly underexplored were discussed. It was noted that much remains to be done to educate users and convince state courts, dispute resolution organizations, merchants and other services’ providers to offer access to justice online. Efforts must be undertaken to allow users seek remedy in an affordable way. The solution for an equal access to justice is to make such access available online. The issues of ethics and standards were also discussed, as well as the increase concern of data protection and cybersecurity. The recording of the discussions on the panels are available on the ICC Digital Library (ICCDRL).


Mirèze Philippe
Mirèze Philippe is a special counsel at the Secretariat of the ICC International Court of Arbitration. She is the founding co-president of ArbitralWomen and member of the Board, member of the Steering Committee of the Equal Representation in Arbitration Pledge, member of the Board of Advisors of Arbitrator Intelligence, member of the Advisory Board of Association Arbitri, and fellow of the National Center for Technology and Dispute Resolution.
Article

The New World Order in Dispute Resolution

Brexit 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.
    Under Donald Trump presidency, the state of North America Free Trade Agreement (NAFTA) seems binary with the probing question will NAFTA survive or not. NAFTA is currently undergoing transformation, a process that incorporates Investor-State Dispute Settlement (ISDS).


Ijeoma Ononogbu
Ijeoma Ononogbu is a London-based Solicitor, International Dispute Resolution, Director, Dispute Resolver Ltd and Fellow of the Chartered Institute of Arbitrators.

Peter Holt
Peter Holt is Chief Product Development Officer at iCan Systems Inc.

Graham Ross
Graham Ross runs a distance training course on ODR for mediators and arbitrators at www.odrtraining.com and he is a member of the Civil Justice Council ODR Advisory Group.

Ernest Thiessen
Ernest Thiessen is President of iCan Systems Inc of British Columbia, developers of the Smartsettle eNegotiation and visual blind bidding system.

Diana Wallis
Diana Wallis is Former Vice-President of the European Parliament, past President of the European Law Institute and former Director of the International Mediation Institute.

Stewart McCulloch
Stewart McCulloch is Managing director of NuvaLaw UK Limited.
Conference Paper

Artificial Intelligence and Online Dispute Resolution Systems Design

Lack of/Access to Justice Magnified

Journal International Journal of Online Dispute Resolution, Issue 2 2017
Keywords ODR, ethics, alternative dispute resolution, technology, dispute system design, artificial intelligence
Authors Leah Wing
AbstractAuthor's information

    Recent scholarship and innovative applications of technology to dispute resolution highlight the promise of increasing access to justice via online dispute resolution (ODR) practices. Yet, technology can also magnify the risk of procedural and substantive injustice when artificial intelligence amplifies power imbalances, compounds inaccuracies and biases and reduces transparency in decision making. These risks raise important ethical questions for ODR systems design. Under what conditions should algorithms decide outcomes? Are software developers serving as gatekeepers to access to justice? Given competing interests among stakeholders, whose priorities should impact the incorporation of technology into courts and other methods of dispute resolution? Multidisciplinary collaboration and stakeholder engagement can contribute to the creation of ethical principles for ODR systems design and transparent monitoring and accountability mechanisms. Attention to their development is needed as technology becomes more heavily integrated into our legal system and forms of alternative dispute resolution.


Leah Wing
Leah Wing is Co-Director, National Center for Technology and Dispute Resolution, and Senior Lecturer II, Legal Studies Program, Department of Political Science, University of Massachusetts, Amherst (USA).
Article

The Law of Consumer Redress in an Evolving Digital Market

Upgrading from Alternative to Online Dispute Resolution

Journal International Journal of Online Dispute Resolution, Issue 2 2017
Keywords e-Commerce, Online Dispute Resolution, Alternative Dispute Resolution, consumer redress
Authors Pablo Cortés
AbstractAuthor's information

    This article contains the Introduction of a book with the same title recently published by Cambridge University Press, which is reproduced here with its permission. The book offers an updated analysis of the various consumer dispute resolution processes, its laws and best practices, which are collectively referred as the Law of Consumer Redress. The book argues that many consumer redress systems, and in particular publicly certified Alternative Dispute Resolution (ADR) entities, are more than a mere dispute resolution mechanism as they provide a public service for consumers that complements, and often replaces, the role of the courts. In examining the current redress models (i.e., public enforcement, private enforcement and other market options), the book calls for greater integration amongst these various redress options. It also advocates, inter alia, for processes that encourage parties to participate in ADR processes, settle meritorious claims and ensure extrajudicial enforcement of final outcomes. Lastly, the book calls for a more efficient rationalization of certified ADR entities, which should be better coordinated and accessible through technological means.


Pablo Cortés
Pablo Cortés is Professor of Civil Justice, University of Leicester, UK.
Conference Paper

Conference Opening Remarks

Journal International Journal of Online Dispute Resolution, Issue 2 2017
Keywords Online Dispute Resolution, online court, access to justice, technology and the law
Authors Lord Justice Briggs
AbstractAuthor's information

    Lord Justice Briggs has been intimately involved in the development of technology for improving access to justice in the UK. He was the author of a report that energized the move toward online dispute resolution in the courts. These remarks are a retrospective look at his work, now that he is a member of the UK Supreme Court, and no longer involved day-to-day in ODR development.


Lord Justice Briggs
Justice of the UK Supreme Court.
Article

Le jugement de Hissène Habré

Une justice réparatrice exemplaire?

Journal African Journal of International Criminal Justice, Issue 1-2 2017
Keywords Restorative justice / justice réparatrice, victim / victime, reparation / réparation, Trust Fund for Victims / Fonds au profit des victimes, compensation / indemnisation
Authors Etienne Kentsa
AbstractAuthor's information

    The ruling of the African Extraordinary Chamber of Appeal in the Habré case is a resounding precedent, particularly in the area of reparations for victims of serious violations of international law. This article focuses on the process of identifying victims or beneficiaries of reparations and the reasons that led judges to favor compensation as a form of reparation. Moreover, the modalities for the implementation of reparations awarded are of paramount importance since, in the absence of effective remedies, the interest of the procedure would be considerably diminished. The implementation of reparations will certainly be the ultimate battle of the victims. Funding for the Trust Fund for Victims (FPV) is still expected. The Fund is expected to play a key role in implementing reparations for victims, the final judgment in this case is already an important precedent. Not only does it contribute to the consolidation of some advances in international criminal law in the field of restorative justice, but it also symbolizes Africa’s ability to prosecute and try the most serious international crimes committed in the region.
    L’arrêt rendu par la Chambre africaine extraordinaire d’assises d’appel dans l’affaire Habré est un précédent retentissant notamment dans le domaine des réparations au profit des victimes de violations grave du droit international. En fait, la présente contribution s’attarde sur le processus d’identification des victimes ou bénéficiaires des réparations et les raisons ayant amené les juges à privilégier l’indemnisation comme forme de réparation. Par ailleurs, les modalités de mise en œuvre des réparations ordonnées sont d’une importance capitale dans la mesure où en l’absence d’effectivité des réparations allouées, l’intérêt de la procédure serait considérablement amoindri. La mise en œuvre des réparations constituera certainement l’ultime bataille des victimes. Le financement du Fonds au profit des victimes (FPV) est toujours attendu. Pourtant le Fonds est censé jouer un rôle déterminant dans la mise en œuvre des réparations allouées aux victimes. Au demeurant, l’arrêt définitif dans cette affaire constitue déjà un précédent important. Non seulement, il contribue à l’affermissement de certaines avancées du droit international pénal en matière de justice réparatrice, mais surtout symbolise la capacité de l’Afrique à poursuivre et juger les crimes internationaux les plus graves commis dans la région.


Etienne Kentsa
E. Kentsa est actuellement candidat au Doctorat en droit de l’Université de Douala, Cameroun, et assistant à l’Université de Buéa. Ses domaines de spécialité sont le droit international pénal, le droit international des droits de l’homme, le droit international humanitaire et les finances publiques.
Article

Negotiating Co-Authorship, Ethically and Successfully

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2017
Keywords negotiation, ethics, academia, mentorship, authorship
Authors Andrea Schneider and Rachel Gur-Arie PhD
AbstractAuthor's information

    Authorship is a feature of career success and is relevant for practically all health science fields. Yet negotiating co-authorship is one of the most difficult processes academics encounter. The stakes are high, issues can be complex, and negotiators’ motivations are often multifaceted. The tools presented in this article – preparation, relationship development, and communication – can be used to increase the likelihood of a successful negotiation. Through the use of a case study, this article illustrates how a typical junior colleague can negotiate with their mentor. Additionally, this article outlines various standards of co-authorship to ensure that published authorship reflects appropriate standards of the field. The goal is for academics to be able to negotiate not only effectively, but also ethically.


Andrea Schneider
Professor Andrea Kupfer Schneider is the Director of the Dispute Resolution Program, Marquette University Law School.

Rachel Gur-Arie PhD
Rachel Gur-Arie is a PhD candidate in Health Systems Management within the School of Public Health at Ben-Gurion University of the Negev in Be’er Sheva, Israel.
Article

Intersecting Professions

A Public Health Perspective on Law to Address Health Care Conflicts

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2017
Keywords public health, Alternative Dispute Resolution, public law, health promotion
Authors Michal Alberstein and Nadav Davidovitch PhD
AbstractAuthor's information

    This paper examines the intersection between the two professions – law and medicine – with reference to systematic transformations that have characterized their development in the past century. In particular, the paper examines the co-emergence of the new public health and health promotion scholarship along with the development of the Alternative Dispute Resolution (ADR) movement in the second half of the 20th century. The two movements, with their later developments, have aspired to change the focus of professionals in the field, and both have been tremendously successful on the one hand, and on the other have remained marginal to mainstream training and identity building of contemporary lawyers and doctors.


Michal Alberstein
Michal Alberstein is a Full Professor at The Faculty of Law, Bar-Ilan University, Israel. She is also the Primary Investigator on an ERC consolidator grant to study Judicial Conflict Resolution (JCR).

Nadav Davidovitch PhD
Nadav Davidovitch, MD, MPH, PhD is an epidemiologist and public health physician. He is a Full Professor and Director, School of Public Health, Faculty of Health Sciences and the Guilford-Glaser Faculty of Business and Management at Ben-Gurion University of the Negev in Israel.
Editorial

Foreword

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2017
Authors Michal Alberstein, Nadav Davidovitch PHD and Shelly Kamin-Friedman
Author's information

Michal Alberstein
Michal Alberstein is a Full Professor at The Faculty of Law, Bar-Ilan University, Israel. She is also the Primary Investigator on an ERC consolidator grant to study Judicial Conflict Resolution (JCR).

Nadav Davidovitch PHD
Nadav Davidovitch, MD, MPH, PhD is an epidemiologist and public health physician. He is a Full Professor and Director, School of Public Health, Faculty of Health Sciences and the Guilford-Glaser Faculty of Business and Management at Ben-Gurion University of the Negev in Israel.

Shelly Kamin-Friedman
Adv. Shelly Kamin-Friedman, LL.B, MHA is a specialist in Health Law and a PhD candidate at the Department of Health Systems Management, Faculty of Health Sciences, Ben-Gurion University of the Negev, Be'er Sheva, Israel.
Article

Consultations, Citizen Narratives and Evidence-Based Regulation

The Strange Case of the Consultation on the Collaborative Economy

Journal European Journal of Law Reform, Issue 1-2 2017
Keywords Better Regulation, consultations, evidence-based lawmaking, sharing economy, narratives
Authors Sofia Ranchordás
AbstractAuthor's information

    The 2015 Better Regulation Communication advocates an evidence-based approach to regulation, which includes better consultations and broader civic engagement. In this article, I consider the recent EU public consultation on the regulatory environment of online platforms and the collaborative economy. I enquire in this context whether citizens were seriously regarded as evidence providers and how their knowledge that materialized in individual narratives could contribute to more legitimate and thus better regulation. I argue that an evidence-based approach to regulation should also include citizen narratives as they can provide first-hand and diverse perspectives, which might not be considered in standard consultation questions. I contend that citizen narratives can be particularly useful in complex and rapidly evolving fields where there is still little empirical evidence and where participants are likely to have diverse personal experiences. Drawing on the literature on narratives, I contend that this method of collecting information can help regulators identify new problems and structure solutions in rapidly changing and diverse regulatory fields such as the collaborative economy.


Sofia Ranchordás
Sofia Ranchordás is an Assistant Professor of Administrative and Constitutional Law at Leiden Law School, the Netherlands, and Affiliated Fellow of the Information Society Project at Yale Law School.
Article

Report of the 32nd IAA/IISL Scientific-Legal Roundtable

Technological and Legal Challenges for On-Orbit Servicing

Journal International Institute of Space Law, Issue 7 2017
Authors Marc Haese

Marc Haese
Article

Spaceplanes Operating in Airspace

In Search of a Regulatory Regime for Traffic Coordination

Journal International Institute of Space Law, Issue 2 2017
Authors George D. Kyriakopoulos
Author's information

George D. Kyriakopoulos
Lecturer in International Law, Faculty of Law, National and Kapodistrian University of Athens.
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