Search result: 41 articles

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Year 2012 x
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

Access to Higher Education in the EU

Evolving Case Law of the CJEU

Journal European Journal of Law Reform, Issue 4 2012
Keywords EU common market, European higher educational area, CJEU case-law on education, free movement of students, educational strategies
Authors Kari Käsper and Tanel Kerikmäe
AbstractAuthor's information

    A prerequisite for a competitive market can be achieved better through clear legal policy in European higher education. There is a time for the EU to intervene more into the area to eliminate state protectionism. The reasoning in CJEU case law gives a guidance for corrigendum of further legal basis. The students of another Member State should not deserve different treatment. EU role in the field of education should be significant to avoid state-based bureaucracy. The jurisprudence of CJEU creates a basis for the further development of the regulation, which leads to foundation for well-functioning internal market in the global world.


Kari Käsper
K. Käsper, M.A (law [Tallinn University of Technology 2012] and Law studies [International University Audentes, eq. with master of law 2005]) is a lecturer of EU law at Tallinn Law School, Tallinn University of Technology.

Tanel Kerikmäe
Tanel Kerikmäe (Ph.D [Tallinn University, Political Science and State Governance 2009], LL.Lic [Helsinki University, Law 2006], LL.M [Helsinki University, Law 1994] and Law studies [Tartu University, eq. with master of law 1992]) is a professor and head of the Jean Monnet Chair of European Law, Tallinn Law School, Tallinn University of Technology. The current article is based on K. Käsper’s thesis (supervised by Prof. Kerikmäe), defended in 2012.
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.
Discussion

Access_open ‘We Are Also Here.’ Whose Revolution Will Democracy Be?

Journal Netherlands Journal of Legal Philosophy, Issue 3 2012
Keywords democracy, public sphere, civil society, Arab Spring, feminism
Authors Judith Vega
AbstractAuthor's information

    Steven Winter’s argument is premised on a sharp contrast of individualist and social revolutions. I elaborate my doubts about his argument on three accounts, involving feminist perspectives at various points. First, I take issue with Winter’s portrayal of liberal theory, redirecting the focus of his concern to economic libertarianism rather than liberalism, and arguing a more hospitable attitude to the Kantian pith in the theory of democracy. Secondly, I discuss his conceptualization of democracy, adding the conceptual distinction of civil society and public sphere. Thirdly, I question his normative notion of socially situated selves as having an intrinsic relation to social freedom. I moreover consult cultural history on the gendered symbolics of market and democracy to further problematize Winter’s take on either’s meaning for social freedom.


Judith Vega
Judith Vega is Lecturer in Social and Political Philosophy at the University of Groningen, the Netherlands.

Susan Myres JD
Susan Myres is the principal at Myres and Associates, PLLC located in Houston, Texas; www.myresfamilylaw.com, smyres@myresfamilylaw.com. She is a member of the Board of Managers of the International Academy of Matrimonial Lawyers, USA Chapter. She is secretary of the American Academy of Matrimonial Lawyers.

Christopher Flynn MD
Menninger Clinic, Houston, TX, USA, cflynn@menninger.edu.
Article

Practical and Legal Consequences of Spacecraft End of Life Disposal

Journal International Institute of Space Law, Issue 9 2012
Authors David Finkleman PhD, Diane Howard JD, LLM and Catherine Doldirina
Author's information

David Finkleman PhD
Center for Space Standards and Innovation, Colorado Springs, Colorado, USA dfinkleman @centerforspace.com.

Diane Howard JD, LLM
DCL Institute of Air and Space Law, Montreal, Quebec, Canada.

Catherine Doldirina
DCL Institute of Air and Space Law, Montreal, Quebec, Canada.

Camilo Guzman Gomez
Sergio Arboleda University, Colombia, camilo.guzman @ usa.edu.co.
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

Access_open The Collapse of the Rule of Law

The Messina Earthquake and the State of Exception

Journal Netherlands Journal of Legal Philosophy, Issue 2 2012
Keywords Messina, earthquake, state of exception, rule of law, progress
Authors Massimo La Torre
AbstractAuthor's information

    Messina, a Sicilian town, was devasteted by an earthquake in1908. It was an hecatomb. Stricken through this unfathomable disgrace Messina’s institutions and civil society collapsed and a sort of wild natural state replaced the rule of law. In this situation there was a first intervention of the Russian Czarist navy who came to help but immediately enforced cruel emergency measures. The Italian army followed and there was a formal declaration of an ‘emergency situation.’ Around this event and the several exceptional measures taken by the government a debate took place about the legality of those exceptional measures. The article tries to reconstruct the historical context and the content of that debate and in a broader perspective thematizes how law (and morality) could be brought to meet the breaking of normality and ordinary life by an unexpected and catastrophic event.


Massimo La Torre
Massimo La Torre is Professor of Legal Philosophy at the University of Catanzaro in Italy and visiting Professor of Law at the University of Hull in England.
Article

Access_open Globalization as a Factor in General Jurisprudence

Journal Netherlands Journal of Legal Philosophy, Issue 2 2012
Keywords general jurisprudence, globalization, global legal pluralism, legal positivism, analytical jurisprudence
Authors Sidney Richards
AbstractAuthor's information

    Globalization is commonly cited as an important factor in theorising legal phenomena in the contemporary world. Although many legal disciplines have sought to adapt their theories to globalization, progress has been comparatively modest within contemporary analytical jurisprudence. This paper aims to offer a survey of recent scholarship on legal theory and globalization and suggests various ways in which these writings are relevant to the project of jurisprudence. This paper argues, more specifically, that the dominant interpretation of globalization frames it as a particular form of legal pluralism. The resulting concept – global legal pluralism – comes in two broad varieties, depending on whether it emphasizes normative or institutional pluralism. This paper goes on to argue that these concepts coincide with two central themes of jurisprudence, namely its concern with normativity and institutionality. Finally, this paper reflects on the feasibility of constructing a ‘general’ and ‘descriptive’ jurisprudence in light of globalization.


Sidney Richards
Sidney Richards is Doctoral candidate in Law at Pembroke College at the University of Cambridge.
Article

The Impact of Europeanization of Contract Law on English Contract Law

Journal European Journal of Law Reform, Issue 2-3 2012
Keywords Rome I and II Regulations, Europeanization, contract law, Common European Sales Law, faulty goods
Authors Omar Abdelaziz
Abstract

    The ongoing process of Europeanization for promoting cross-border transactions and conferring better protection for consumers and small businesses has had its impact all over Europe. It represents a new step towards a harmonized set of legal rules to govern cross-border transactions in the field of contract law. So what is its exact scope? Who will benefit from it? What are its risks? What is its methodology? Does it represent a codification of common law rules? What will be its impact especially on common law countries such as the United Kingdom? The effectiveness of Europeanization depends almost entirely on the correct implementation into national law of the various directives; every member state is obliged to fully implement a harmonized measure into its domestic laws. This is accomplished by ensuring that (1) the relevant legal framework meets the requirements of the harmonized measure and (2) the application of the domestic rules giving effect to a harmonizing measure does not undermine the effectiveness of the European measure. English contract law is largely an uncodified law. Accordingly, the approach taken and the methods used by this jurisdiction to implement European directives into its national laws with the aim of harmonization are different. How did the English courts interpret legislations that implement EU legislations? Will Europeanization affect the deep-rooted principles and doctrines of English contract law (issues of commercial agency), good faith in pre-contractual obligations, unfair contract terms and specific performance? Finally, what could be the clash between European contract law, Rome I Regulations and the United Nations Convention on Contracts for the International Sale of Goods? Could this optional instrument be an exclusive law to either national or international mandatory rules for consumers in member states? What will be the qualification for a genuine consent of consumers in cross-border contracts? Will it lead to the development of the internal market as envisaged by the Commission?


Omar Abdelaziz
Article

Challenges Faced by Legislative Drafters in Samoa and Other USP Member Countries

Journal European Journal of Law Reform, Issue 2-3 2012
Keywords legislative drafting challenges in Pacific Islands
Authors Mary Victoria Petelō Fa’asau
AbstractAuthor's information

    Legislative drafting is a skill slowly developing in the Pacific today. This abstract identifies and records an update on the challenges to legislative drafting in Pacific island countries. Due to lack of information on legislative drafting in the Pacific, research was undertaken with the assistance of Parliamentary Counsel and other Pacific drafters. I also attended the second biennial meeting of the Pacific Drafters’ Technical Forum in October 2009 where more current challenges were discussed. My own experiences as a legislative drafter are also reflected in this abstract.
    The outcomes of the abstract will show that whereas legislative drafting as a specialised skill is recognised by Pacific governments and interests have grown in pursuing legislative drafting as a career, the challenges faced by Pacific legislative drafters are commonly more diverse and complex. In addition to analysing some of these challenges, this paper offers some recommendations to combating them.


Mary Victoria Petelō Fa’asau
Senior Legislative Drafter, Legislative Drafting Division, Office of the Attorney-General, Samoa; 2011/2012 Greg Urwin Award recipient, Pacific Islands Forum Secretariat; Pacific Legislative Drafters’ Technical Forum; Full member of the Commonwealth Association of Legislative Counsel.
Article

Instructions to Draft Legislation

A Study on Legislative Drafting Process in Rwanda

Journal European Journal of Law Reform, Issue 2-3 2012
Keywords drafting instructions, Rwanda, quality of legislation
Authors Ruth Ikiriza
Abstract

    Drafting instructions are always difficult to discuss and evaluate because very often they depend on local traditions. Nevertheless, despite local traditions in drafting instructions their complete absence must be seen as a problem. This article tackles the issue of drafting instructions and their importance in the development of good drafts. And by good drafts the author means good quality drafts which will lead to good quality legislation. The article uses Rwanda as a case study and employs Thornton’s five stages of the drafting process as its basic methodology.


Ruth Ikiriza
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

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

Jana Robinson

Dr. Paul Stephen Dempsey
Tomlinson Professor of Law, and Director, Institute of Air & Space Law, McGill University, Montreal, Canada, paul.dempsey@mcgill.ca.
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.
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