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Year 2021 x
Article

Access_open Dispute Resolution in the Chinese Belt and Road Initiative

The Role of Mediation

Journal Corporate Mediation Journal, Issue 2 2021
Keywords international commercial mediation, Belt and Road Initiative, Singapore Convention, China, international dispute resolution
Authors Henneke Brink
AbstractAuthor's information

    With unfaltering determination, China continues to expand its Belt and Road Initiative (BRI). This article focuses on the preference that is given to mediation for the resolution of BRI-related disputes. China, Hong Kong and Singapore proclaim that this approach better fits with ‘Asian’ cultural values than adversarial processes like arbitration and litigation. The BRI can be seen as an innovative field lab where mechanisms for international commercial conflict management and resolution are being developed and put to action - and where legitimacy is tested.


Henneke Brink
Henneke Brink is a Dutch lawyer, mediator, and owner of Hofstad Mediation. She carries out research and writes about topics concerning the relation between mediation and (inter)national formal justice systems.
Article

The Use of Technology (and Other Measures) to Increase Court Capacity

A View from Australia

Journal International Journal of Online Dispute Resolution, Issue 2 2021
Keywords court capacity, COVID-19, Australia, online dispute resolution, open justice, procedural fairness, access to justice, online courts, justice technology, judicial function
Authors Felicity Bell, Michael Legg, Joe McIntyre e.a.
AbstractAuthor's information

    The COVID-19 pandemic has forced courts around the world to embrace technology and other innovative measures in order to continue functioning. This article explores how Australian courts have approached this challenge. We show how adaptations in response to the pandemic have sometimes been in tension with principles of open justice, procedural fairness and access to justice, and consider how courts have attempted to resolve that tension.


Felicity Bell
Felicity Bell is a Research Fellow for the Law Society of NSW’s Future of Law and Innovation in the Profession (FLIP) research stream at UNSW Law, Sydney.

Michael Legg
Michael Legg is Professor and Director of the FLIP stream at UNSW Law, Sydney.

Joe McIntyre
Joe McIntyre is a Senior Lecturer in Law at UniSA: Justice and Society, University of South Australia.

Anna Olijnyk
Anna Olijnyk is a Senior Lecturer and Director of the Public Law and Policy Research Unit at Adelaide Law School, University of Adelaide, South Australia.
Article

Access_open International Perspectives on Online Dispute Resolution in the E-Commerce Landscape

Journal International Journal of Online Dispute Resolution, Issue 2 2021
Keywords online dispute resolution (ODR), e-commerce, international dispute resolution, international law, United States, China, European Union, Australia, alternative dispute resolution (ADR), online platforms
Authors Teresa Ballesteros
AbstractAuthor's information

    This article will examine Online Dispute Resolution (ODR) from several perspectives to provide a comprehensive understanding of the global efforts to incorporate ODR in the e-commerce scope. Upon examining the nature and growth of both e-commercial activities and ODR, there will be an analysis from an international standpoint, where the article will discuss the relevant bodies and the progression of uniform standards in this regard. This is followed by an analysis of several jurisdictions, namely the United States, China, European Union and Australia. Finally, the essay will provide suggestions andrecommendations for the implementation of ODR.


Teresa Ballesteros
Teresa Ballesteros is a BCom/LLB student at the University of Sydney.
Article

Online Mediation and e-commerce (B2B and B2C) Disputes

Journal International Journal of Online Dispute Resolution, Issue 2 2021
Keywords ODR, online Mediation, e-commerce, business-to business (B2B), business-to consumer (B2C)
Authors Mariam Skhulukhia
AbstractAuthor's information

    Nowadays, electronic commerce plays a significant role in our society as internet transactions continue to grow in the business industry. Electronic commerce mainly refers to commercial transactions, such as business-to-business and business-to-consumer. Disputes are inevitable, part of our lives. Simultaneously by developing technology the need for an effective dispute resolution was obvious. Information communication technology and alternative dispute resolution together created online dispute resolution. Businesses and consumers are actively engaged in online dispute resolution. Therefore, the use of the internet makes business or consumer transactions easier. The online environment is much flexible when it comes to electronic commerce. This article focuses on online mediation, one of the most popular forms of online dispute resolution.


Mariam Skhulukhia
Mariam Skhulukhia has a Bachelor’s degree in law and a Master’s degree in International Business law from the University of Georgia. She participated in the Consensual Dispute Resolution Competition (CDRC VIENNA) in 2018 and the John H. Jackson Moot Court Competition in 2019. Mariam was an intern at Tbilisi City Court in Civil Affairs Board. Also, she worked as a lawyer for residency and citizenship matters at a foreign company. She has successfully passed a Bar Exam (Civil Law Specialization) in 2021. Mariam wrote her Master’s thesis: “Why do we need Online Mediation? Possible Challenges and Perspectives for Online Commercial Mediation in Georgia.” She also submitted her Research Paper titled “Mediating Online: Among the Praises and Diatribes in MediateGuru’s edited book titled “A Pathway to the Future of ADR: Comparative Perspectives around the World.”
Editorial

Access_open Solidarity and COVID-19: An Introduction

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Authors Wouter Veraart, Lukas van den Berge and Antony Duff
Author's information

Wouter Veraart
Wouter Veraart is Professor of Legal Philosophy at the Vrije Universiteit Amsterdam.

Lukas van den Berge
Lukas van den Berge is Assistant Professor of Legal Theory at Utrecht University.

Antony Duff
Antony Duff is Emeritus Professor of Philosophy at the University of Stirling and Emeritus Professor of Law at the University of Minnesota.
Article

Access_open The Exceptionality of Solidarity

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Keywords Solidarity, COVID-19, Crisis, Normalcy, Exceptionality
Authors Amalia Amaya Navarro
AbstractAuthor's information

    In times of crisis, we witness exceptional expressions of solidarity. Why does solidarity spring in times of crisis when it wanes in normal times? An inquiry into what may explain the differences between the expression of solidarity in crisis vs. normalcy provides, as I will argue in this article, important insights into the conditions and nature of solidarity. Solidarity requires, I will contend, an egalitarian ethos and state action within and beyond the state. It is neither a momentary political ideal, nor an exclusionary one, which depends for its sustainment on formal, legal, structures. Transient, sectarian, and informal conceptions of solidarity unduly curtail the demands of solidarity by restricting its reach to times of crisis, to in-group recipients, and to the social rather than the legal sphere. The article concludes by discussing some aspects of the dynamics of solidarity and its inherent risks that the analysis of the exceptionality of solidarity helps bring into focus.


Amalia Amaya Navarro
Amalia Amaya Navarro is British Academy Global Professor of Legal Philosophy at the University of Edinburgh.
Article

Access_open Solidarity, Religious Freedom and COVID-19

The Case of the Ultra-Orthodox Sects in Israel

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Keywords Social solidarity, COVID-19, Religious freedom, Cultural defence, Ultra-Orthodox sects in Israel
Authors Miriam Gur-Arye and Sharon Shakargy
AbstractAuthor's information

    The article discusses the tension between social solidarity and religious freedom as demonstrated by the refusal of the ultra-Orthodox sects in Israel to comply with COVID-19 regulations. The article provides a detailed description of the refusal to comply with the regulations restricting mass prayer services in synagogues and studying Torah in the yeshivas, thus interfering with the ultra-Orthodox religious life. The article suggests possible explanations for that refusal, based on either religious beliefs or a socio-political claim to autonomy, and discusses whether the polity should be willing to tolerate such a refusal on the basis of the cultural defence. The article concludes that despite the drastic restrictions on religious life caused by the social distancing regulations, and the special importance of freedom of religion, reducing the pandemic’s spread called for awarding priority to solidarity over religious freedom, and the enforcement of social solidarity legal duties – the social distancing regulations – on all.


Miriam Gur-Arye
Miriam Gur-Arye is the Judge Basil Wunsh Professor of Criminal Law, Faculty of Law, The Hebrew University of Jerusalem.

Sharon Shakargy
Sharon Shakargy is a Senior Lecturer at the Faculty of Law, The Hebrew University of Jerusalem.
Article

Access_open Justice and Coercion in the Pandemic

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Keywords Justice as impartiality, Justice as mutual advantage, Solidarity, Coercion, Moral motivation
Authors Matt Matravers
AbstractAuthor's information

    Coercion plays two essential roles in theories of justice. First, in assuring those who comply with the demands of justice that they are not being exploited by others who do not do so. Second, in responding to, and managing, those who are unreasonable. With respect to the first, responses to the pandemic have potentially undermined this assurance. This is true in the distributions of vaccines internationally, and in some domestic contexts in which the rich and powerful have avoided public health guidance not to travel, to isolate, and so on. With respect to the second, the article considers whether those who refuse to be vaccinated are unreasonable, and if so, what follows for how they ought to be treated.


Matt Matravers
Matt Matravers is Professor of Law, University of York, York, UK.
Article

Access_open Living with Others in Pandemics

The State’s Duty to Protect, Individual Responsibility and Solidarity

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Keywords SARS-CoV-2 pandemic, The state’s duty to protect, Duty to rescue, Responsibility, Solidarity
Authors Konstantinos A Papageorgiou
AbstractAuthor's information

    The article discusses a range of important normative questions raised by anti-COVID-19 measures and policies. Do governments have the right to impose such severe restrictions on individual freedom and furthermore do citizens have obligations vis-à-vis the state, others and themselves to accept such restrictions? I will argue that a democratic state may legitimately enforce publicly discussed, properly enacted and constitutionally tested laws and policies in order to protect its citizens from risks to life and limb. Even so, there is a natural limit, factual and normative, to what the state or a government can do in this respect. Citizens will also need to take it upon themselves not to harm and to protect others and in the context of a pandemic this means that endorsement of restrictions or other mandatory measures, notably vaccination, is not to be seen as a matter of personal preference concerning the supposedly inviolable sovereignty of one’s own body.


Konstantinos A Papageorgiou
Konstantinos A Papageorgiou is Professor of the Philosophy of Law at the National and Kapodistrian University of Athens, School of Law.
Article

Access_open What Solidarity?

A Look Behind the Veil of Solidarity in ‘Corona Times’ Contractual Relations

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Keywords Mechanical solidarity, Organic solidarity, Contract, Good faith, Punishment
Authors Candida Leone
AbstractAuthor's information

    The article uses three prominent examples from the Dutch context to problematize the relationship between contractual and social solidarity during the coronavirus crisis. The social science ideal types of ‘mechanical’ and ‘organic’ solidarity, and their typified correspondence with legal modes of punishment and compensation, are used to illuminate the way in which solidarity language in private relationships can convey and normalize assumptions about the public interest and economic order.


Candida Leone
Candida Leone is Assistant Professor at the, Amsterdam Centre for Transformative Private Law.
Article

Access_open Suffering from Vulnerability

On the Relation Between Law, Contingency and Solidarity

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Keywords Vulnerability, Contingency, Freedom and Anxiety, Solidarity, Legal concept of inclusion
Authors Benno Zabel
AbstractAuthor's information

    The COVID-19 crisis has produced or amplified disruptive processes in societies. This article wants to argue for the fact that we understand the meaning of the COVID-19 crisis only if we relate it to the fundamental vulnerability of modern life and the awareness of vulnerability of whole societies. Vulnerability in modernity are expressions of a reality of freedom that is to some extent considered contingent and therefore unsecured. It is true that law is understood today as the protective power of freedom. The thesis of the article, however, boils down to the fact that the COVID-19 crisis has resulted in a new way of thinking about the protection of freedom. This also means that the principle of solidarity must be assigned a new social role. Individual and societal vulnerability refer thereafter to an interconnectedness, dependency, and a future perspective of freedom margins that, in addition to the moral one, can also indicate a need for legal protection. In this respect, law has not only a function of delimitation, but also one of inclusion.


Benno Zabel
Benno Zabel is Professor of Criminal Law and Philosophy of Law at the University of Bonn.
Article

Access_open Sick and Blamed

Criminal Law in the Chilean Response to COVID-19

Journal Netherlands Journal of Legal Philosophy, Issue 2 2021
Keywords Solidarity, Punishment, Legitimacy, Inequality, COVID-19
Authors Rocío Lorca
AbstractAuthor's information

    The Chilean government called upon ideas of social solidarity to fight the pandemic of SARS-CoV-2 and it relied heavily on the criminal law in order to secure compliance with sanitary restrictions. However, because restrictions and prosecutorial policy did not take into account social background and people’s ability to comply with the law, prosecutions soon created groups of people who were being both over-exposed to disease and death, and over-exposed to control, blame and punishment. The configuration of this overpoliced and underprotected group became so visibly unjust that appealing to social solidarity to justify the criminal enforcement of sanitary restrictions became almost insulting. This forced the Fiscal Nacional to develop a ‘socially sensitive’ prosecutorial strategy, something that we have not often seen despite Chile’s inequalities. The changes in policy by the Fiscal Nacional suggest that perhaps, at times, penal institutions can be made accountable for acting in ways that create estrangement rather than cohesion.


Rocío Lorca
Rocío Lorca is Assistant Professor at Universidad de Chile’s School of Law.
Conference Reports

Conference on the Bindingness of EU Soft Law

Report on the ‘Conference on the Bindingness of EU Soft Law’ Organized by Pázmány Péter Catholic University, 9 April 2021, Budapest

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords conference report, soft law, Pázmány Péter Catholic University, bindingness, Grimaldi
Authors Vivien Köböl-Benda
AbstractAuthor's information

    The online ‘Conference on the bindingness of EU soft law’ was organized by the Ereky Public Law Research Center at Pázmány Péter Catholic University (Hungary), the Universidad de Castilla-La Mancha (Spain), and the Portsmouth Law School (United Kingdom) on 9 April 2021. The presentations described EU soft law instruments’ legal effect on EU institutions and the Member States. The soft law instruments of different policy fields were also examined, including the analysis of the language of EU soft law.


Vivien Köböl-Benda
Vivien Köböl-Benda: PhD student, Pázmány Péter Catholic University, Budapest.
Developments in International Law

The Decision on the Situation in Palestine Issued by Pre-Trial Chamber I of the International Criminal Court

Reflecting on the Legal Merits

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords International Criminal Court, ICC, Palestine, Oslo Accords, jurisdiction
Authors Rachel Sweers
AbstractAuthor's information

    On 5 February 2021, the Pre-Trial Chamber I of the International Criminal Court (ICC) issued its decision on the Situation in Palestine affirming that its territorial jurisdiction extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem. The Situation was brought before the Chamber by request of the ICC’s Prosecutor. Legal issues were addressed in the Majority Decision, as well as in the Partly Dissenting Opinion and Partly Separate Opinion. The procedural history involving the Prosecution Request that seized the Chamber on the Situation in Palestine will be discussed, including a brief analysis of the legal basis for this request. Furthermore, the legal merits of the Situation in Palestine will be compartmentalized into three main pillars in order to analyze step by step how the Chamber reached its conclusion.


Rachel Sweers
Rachel Sweers: legal intern, International Criminal Court, the Hague.
Public Health Emergency: National, European and International Law Responses

Constitutional Rights in the Time of Pandemic

The Experience of Hungary

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords state of emergency, emergency powers, restriction of fundamental rights, Fundamental Law, Constitutional Court of Hungary
Authors Lóránt Csink
AbstractAuthor's information

    Special circumstances may require special measures. This article is to highlight the importance of constitutional rights, also in the time of a pandemic. Its hypothesis is that constitutional rights are not luxuries one can only afford in peacetime, they are much rather at the core of civilization and democracy. History shows that a world without rights may easily turn into a nightmare. The article first focuses on the Hungarian constitutional basis of the state of emergency (Section 2). Next, it analyses the text of the constitution with respect to the limitation of fundamental rights and elaborates on the various interpretations through the lens of the case-law of the Constitutional Court (Sections 3-4). Finally, the article concludes that despite the rigid wording of the Hungarian Fundamental Law, constitutional rights can be restricted only if the restriction meets the necessity-proportionality test (Section 5)


Lóránt Csink
Lóránt Csink: associate professor of law, Pázmány Péter Catholic University, Budapest; counselor, Constitutional Court of Hungary, Budapest.
Public Health Emergency: National, European and International Law Responses

Defining the Common European Way of Life

Exploring the Concept of Europeanness

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords European identity, Common European Way of Life, coronavirus, European citizenship, Hungary, enlargement policy, Europeanness
Authors Lilla Nóra Kiss and Orsolya Johanna Sziebig
AbstractAuthor's information

    The article focuses on the interpretation of the European Way of Life and the concept of Europeanness. Ursula von der Leyen determined the Promotion of the European Way of Life as a priority of the 2019-2024 Commission. The purpose behind this was to strengthen European democracy and place the citizens into the center of decision-making. The article examines the role of European identity, European citizenship and those historical-traditional conditions that make our way of life ‘common’. The Common European Way of Life may be defined as a value system based on the established legal basis of EU citizenship that can be grasped in the pursuit of common principles and the exercise of rights guaranteed to all EU citizens, limited only under exceptional circumstances and ensuring socio-economic convergence. The article covers general conceptual issues but also focuses on the extraordinary impact of the COVID-19. Lastly, the relevant aspects of enlargement policy are also explored.


Lilla Nóra Kiss
Lilla Nóra Kiss: Visiting Scholar at Antonin Scalia Law School, George Mason University, Virginia, US.

Orsolya Johanna Sziebig
Orsolya Johanna Sziebig: senior lecturer, University of Szeged.
Hungarian State Practice

An Institution for a Sustainable Future

The Hungarian Ombudsman for Future Generations

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords intergenerational equity, rights of future generations, ombudsman for future generations, Hungary, right to environment
Authors Kinga Debisso and Marcel Szabó
AbstractAuthor's information

    The purpose of this article is to give an insight into the process leading up to the establishment of the Hungarian Ombudsman for Future Generations and its tasks: an almost 15-year-old, unique legal institution aiming to protect the interests of future generations. The Ombudsman for Future Generations is an example for the institutionalization of the principle of intergenerational justice. The article aims to introduce the characteristics and strengths of the current institutional design and the structural features that allow for the successful operation of the Ombudsman for Future Generations in Hungary. Following an introduction to the political and historical context in which the institution was established, the article describes in detail the Ombudsman’s work, responsibilities, most important functions, elaborating on some examples of its best practices and achievements. Finally, the article touches upon how the example and experiences of the Hungarian institution may be valuable for other countries in Europe and beyond.


Kinga Debisso
Kinga Debisso: political advisor, Ministry of Justice, Budapest.

Marcel Szabó
Marcel Szabó: professor of law, Pázmány Péter Catholic University, Budapest; justice, Constitutional Court of Hungary, Budapest.
Developments in International Law

The Evolution of Content-Related Offences and Their Investigation During the First 20 Years of the Cybercrime Convention

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords cybercrime, content-related offence, cyberbullying, privacy, wiretapping
Authors Kinga Sorbán
AbstractAuthor's information

    The Convention on Cybercrime otherwise known as the Budapest Convention was a complex, pioneering instrument addressing cross-border computer crimes in the wake of the 21st century. As the first international treaty aiming to tackle new threats emerging from the cyberspace, the Convention signed in 2001 certainly influenced national regulators and law enforcement over many years. Two decades have passed since 2001 and the Internet era has undergone previously unpredictable changes, as web 2.0 services started to thrive. Even though the Convention can be considered a landmark in international legislation, after 20 years one must eventually assess how well it stood the test of time and whether it still has relevance. This article has no smaller goal but to evaluate the evolution of content-related cybercrimes and try to the question whether the Convention is still fit to tackle contemporary issues or rather, is outdated and ready to retire.


Kinga Sorbán
Kinga Sorbán: junior research fellow, National University of Public Service, Budapest.
Developments in European Law

Whose Interests to Protect?

Judgments in the Annulment Cases Concerning the Amendment of the Posting Directive

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords posting of workers, freedom to provide services, posting directive, remuneration of posted workers, private international law
Authors Gábor Kártyás
AbstractAuthor's information

    The directive 96/71/EC on the posting of workers had been in force for over 20 years when its first amendment (Directive 2018/957) came into force on 30 July 2020. The Hungarian and Polish Governments initiated annulment proceedings against the new measure, primarily arguing that as the amendment extended the host state’s labor standards ó to posted workers, the directive is no longer compatible with the freedom to provide services (Cases C-620/18 and C-626/18). Although both claims were rejected, the actions contain a number of noteworthy legal arguments (from the perspective of home States), which highlight some of the long-known contradictions of EU legislation on postings. The article summarizes the CJEU’s key observations made in the judgments, which are important propositions for further discussion.


Gábor Kártyás
Gábor Kártyás: associate professor of law, Pázmány Péter Catholic University, Budapest.
Review of Hungarian Scholarly Literature

Tamás Szabados, Economic Sanctions in EU Private International Law (Book Review)

Hart Publishing, Oxford, 2020, 280 p, ISBN 978-1-509-93351-8

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Authors Susanne Gössl
Author's information

Susanne Gössl
Susanne Gössl: professor of law, Christian Albrechts University, Kiel.
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