Search result: 21 articles

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Year 2016 x
Article

Access_open Legal Constraints on the Indeterminate Control of ‘Dangerous’ Sex Offenders in the Community: The French Perspective

Journal Erasmus Law Review, Issue 2 2016
Keywords Preventive detention, mandatory supervision, sex offenders, retrospective penal laws, legality principle
Authors Martine Herzog-Evans
AbstractAuthor's information

    France literally ‘discovered’ sexual abuse following neighbour Belgium’s Dutroux case in the late 1990s. Since then, sex offenders have been the focus of politicians, media and law-makers’ attention. Further law reforms have aimed at imposing mandatory supervision and treatment, and in rare cases, preventive detention. The legal framework for mandatory supervision and detention is rather complex, ranging from a mixed sentence (custodial and mandatory supervision and treatment upon release or as a stand-alone sentence) to so-called ‘safety measures’, which supposedly do not aim at punishing an offence, but at protecting society. The difference between the concepts of sentences and safety measures is nevertheless rather blurry. In practice, however, courts have used safety measures quite sparingly and have preferred mandatory supervision as attached to a sentence, notably because it is compatible with cardinal legal principles. Procedural constraints have also contributed to this limited use. Moreover, the type of supervision and treatment that can thus be imposed is virtually identical to that of ordinary probation. It is, however, noteworthy that a higher number of offenders with mental health issues who are deemed ‘dangerous’ are placed in special psychiatric units, something that has not drawn much attention on the part of human rights lawyers.


Martine Herzog-Evans
Martine H-Evans, PhD, is a Professor at the Department of Law, Universite de Reims Champagne-Ardenne.

    Online dispute resolution (ODR) has been developed in response to the growth of disputes in electronic commerce transactions. It is based on the legal framework of alternative dispute resolution (ADR) by taking into consideration electronic communications and information technology. This article will introduce the current legal framework and practice of ODR in China, find legal issues that affect the development of ODR and, finally, propose suggestions to overcome these barriers.


Jie Zheng
Jie Zheng is a PhD researcher in Ghent University, Faculty of Law, Department of Interdisciplinary Study of Law, Private Law and Business Law. E-mail: <jie.zheng@ugent.be>.
Article

Quo Vadis, Europa?

Loopholes in the EU Law and Difficulties in the Implementation Process

Journal European Journal of Law Reform, Issue 2 2016
Keywords EU Law, Quality of Legislation, Loopholes, Implementation, Joint Practical Guide
Authors Markéta Whelanová
AbstractAuthor's information

    EU law is a very wide-ranging legal system that comprises thousands of legal acts. It endeavours to regulate many relationships in the Member States of the European Union and effects everyday lives both of individuals and public bodies. EU law is, however, not always positively accepted. Such non-acceptance often follows from the increasing number of cases when EU law cannot be effectively applied on the national level. Significant reason for that lies in the poor quality of EU law.
    The article describes features that cause ambiquity of EU legislation, its complexity and incompleteness, that have a very detrimental effect on the application of EU law on the national level. Further it refers to defects of form of certain pieces of EU legislation that give rise to questions concerning legal certainty and due implementation into national legal orders. The article contains many illustrative examples supporting the presented points of view and indicates ways to be taken in the future.


Markéta Whelanová
Head of the Analytical Unit of the Department for Compatibility with EU Law of the Czech Office of the Government and Deputy Director of this Department. Vice-president of the Working Commission for EU Law of the Legislation Council of the Czech Government.
Article

The Quality of Regulation in the Service of Preventing Corruption

Corruption Impact Assessment (CIA)

Journal European Journal of Law Reform, Issue 2 2016
Keywords corruption, regulation, quality, impact assessment, risk
Authors Luca Di Donato
AbstractAuthor's information

    This article describes the Corruption Impact Assessment (CIA), which is a better regulation tool suggested by the OECD, with the fundamental purpose to enhance the regulatory quality.
    The first part explains some risk-corruption factors of the legal framework. The first factor is represented by the number and complexity of rules, which can be a negative incentive to corruption as well as to produce negative consequences for the proper functioning of the market. The second factor is intrinsically linked to the ambiguity in legal drafting, which does not encourage the right interpretation of norms; therefore, there is the question of the rule of law. The third factor refers to the lack of regulation concerning pressure group participation in the regulatory process and, as a result, the lack of transparency in identifying both benefits from norms and the relevant beneficiaries.
    The second part focuses on CIA, which is considered a sub-category of traditional Regulatory Impact Assessment. It detects the factors in regulations that cause corruption, and its main potential is to prevent future corruption facilitated by bad regulation. Then, this part illustrates the implementation of CIA by Korean governments: the Anti-Corruption and Civil Rights Commission (ACRC) carries out the CIA, realizes its guidelines – which are based on three fundamental criteria, i.e., compliance, discretionality and transparency – and supports the application of the tool in the regulatory cycle.
    Finally, the third part discusses the results given by CIA. This new anti-corruption strategy needs that regulators take into account the results, providing for their publication to inform stakeholders; otherwise there is the possibility of the CIA use being formal, rather than substantial.


Luca Di Donato
PhD candidate at LUISS University.
Article

Comparative Legislative Drafting

Comparing across Legal Systems

Journal European Journal of Law Reform, Issue 2 2016
Keywords comparative legislative drafting, comparative law, drafting process
Authors Constantin Stefanou
AbstractAuthor's information

    This article is an original, first attempt at establishing a list of comparative criteria for the comparative study of legislative drafting or aspects of legislative drafting between the two families of legal systems: common law and civil law. Because of the limited bibliography in the field of legislative drafting – let alone in comparative legislative drafting between common law and civil law systems – this article adds to existing scholarship on the field aiming to become a basis for further comparative research in legislative drafting. The list of criteria can be used on its own for different jurisdictions within the same family of legal systems, or the two lists can be used to juxtapose civil and common law experiences in legislative drafting. As this is the first time that such lists of comparative criteria in legislative drafting have been produced, it should be stressed that the lists are certainly not exhaustive. The aim of this article is to generate comparative research in legislative drafting, and so, inevitably, such comparative research might add or even subtract criteria from the lists depending on results.


Constantin Stefanou
Dr Constantin Stefanou is the director of the Sir William Dale Centre for Legislative Studies, at the Institute of Advanced Legal Studies (School of Advanced Study, University of London). He is also the convener of the oldest master’s programme in the field of legislative drafting (LLM in advanced legislative studies) at the IALS.
Article

Prohibition of Discrimination: Citizenship as a Possible Discrimination Basis

Journal European Journal of Law Reform, Issue 3 2016
Keywords anti-discrimination law, Serbian Law, harmonization, right to a personal name, European Court of Justice
Authors Olga Jović-Prlainović and Jelena Belović
AbstractAuthor's information

    In modern society, the right to equality is not just a universal moral obligation; it is rather an expression of a generally accepted rule in international law that all people have equal rights, independently of differences based on innate or acquired personal characteristics. Prohibition of discrimination is a civilization heritage, and it is determined by systematically overcoming prejudices and stereotypes as key factors of discrimination, where educational institutions, media, public authority, and non-governmental organizations all have a vital role. Tackling with discrimination is not just the application of rules regulated by law and taking necessary measures towards social groups which are in an unequal position, but it is also a continuous development of tolerance when it comes to ethnicity, religion, gender, minorities, as well as acceptance of the existing interpersonal differences. It is well known that the area of West Balkans is often a breeding ground where stereotypes and prejudices thrive for decades. The strategic aim of the Republic of Serbia is membership in the European Union, and so nation-wide law regulation concerning this matter is directed at complying with the European Union Law since the prohibition of discrimination is one of the pillars of the European Union Law. In this article, the influence of the European Union Law and practical measures taken by the European Court of Human Rights in order to prohibit discrimination in a specific international and private domain are analyzed.


Olga Jović-Prlainović
Olga Jović-Prlainović is Associate Professor at the Faculty of Law, University of Pristina, Kosovska Mitrovica.

Jelena Belović
Jelena Belović is Assistant Professor at the Faculty of Law, University of Pristina, Kosovska Mitrovica.
Article

Prologue: The IALS Law Reform Project

Journal European Journal of Law Reform, Issue 3 2016
Keywords statute, common law, codification, consolidation, implementation
Authors Jonathan Teasdale
AbstractAuthor's information

    Law, particularly enacted law, needs to be as simple and as accessible as possible, clear and concise and – perhaps above all – fit for the purposes of modern society. Laws passed in one decade may prove to be less than adequate for the needs of later generations because of changes in the social fabric or social mores or because of technological advance or economic challenge. Societies needs mechanisms for keeping law under review, particularly when governments are focused on introducing more law – sometimes layered on top of existing law – to fulfil electoral promises. The position is compounded in common law systems where the senior judiciary add to the legal corpus.
    Different jurisdictions have differing needs. The IALS Law Reform Project (at the Institute of Advanced Legal Studies, University of London) has set itself the task of identifying the range of law reform mechanisms employed across the common law and civil law worlds with a view to establishing which of the components are core, and identifying others which could be improved. The starting point, of course, is: what is law reform? Are reform and revision the same? Does reform need to be legislative? Why does codification work in civil law jurisdictions but is eschewed in parts of the common law world? This is about the processes of law reform; substantive reform is for another day.


Jonathan Teasdale
LL.B, LL.M, Barrister (England and Wales), FRSA. Presently associate research fellow in the Sir William Dale Centre for Legislative Studies at the Institute of Advanced Legal Studies (University of London) specializing in law reform, and formerly a lawyer with the Law Commission for England and Wales.
Article

Managing the EU Acquis

Journal European Journal of Law Reform, Issue 3 2016
Keywords EU, legislation, accessibility, updating
Authors William Robinson
AbstractAuthor's information

    EU legislation plays a key role in filling in the gaps in the framework created by the EU Treaties. The body of EU legislation known as the acquis has grown piecemeal over 60 years to a confused and confusing patchwork of over 100,000 pages. There is an urgent need for a more coherent approach to updating, condensing and revising that legislation to ensure that it is readily accessible. New mechanisms should be established for those tasks, or else the existing mechanisms should be enhanced and exploited to the full.


William Robinson
Associate Research Fellow, Institute of Advanced Legal Studies, London.
Article

The Mechanisms Used to Review Existing Legislation in the Civil Law System

Case Study – Italy

Journal European Journal of Law Reform, Issue 3 2016
Keywords codification, consolidation, law revision, legal restatement, legislative scrutiny
Authors Enrico Albanesi
AbstractAuthor's information

    The aim of this article is to describe the mechanisms that are used in the civil law system to review existing legislation. The case study will be based on the Italian system. In the civil law system we are not familiar with the concept of law reform, in the sense used in the common law system, because there is no law reform agency in the civil law world. The mechanisms used to review the existing law in civil law systems are: codification, consolidation, repeal, law revision and legal restatement. To understand how the mechanisms used to review existing legislation work in Italy, an overview of the Italian law-making and drafting processes will be carried out here, underlying the bad impact that the Italian equal bicameralism has on the quality of legislation and also on the mechanisms to review existing legislation. After this, the article will focus on the specific tools that are used in Italy for codification and consolidation (decreti legislativi), for law revision (the so-called taglia-leggi) and for legal restatement (examining the role of the Consiglio di Stato). Particular attention will also be paid to the parliamentary scrutiny on the quality of legislation. Finally, the article will focus on the constitutional amendment process Italy carried out in 2014-2016 and that was expected to fundamentally change the Italian law-making process, superseding the equal bicameralism arrangement (a referendum on this was held on 4 December 2016, and the reform was rejected by the Italian people).


Enrico Albanesi
Lecturer in Constitutional Law at the University of Genoa (Italy) and Associate Research Fellow at the Institute of Advanced Legal Studies (IALS), University of London. Co-leader of the IALS Law Reform Project.
Article

Access_open National Identity, Constitutional Identity, and Sovereignty in the EU

Journal Netherlands Journal of Legal Philosophy, Issue 2 2016
Keywords national identity, constitutional identity, EU law, constitutional courts, Court of Justice
Authors Elke Cloots
AbstractAuthor's information

    This article challenges the assumption, widespread in European constitutional discourse, that ‘national identity’ and ‘constitutional identity’ can be used interchangeably. First, this essay demonstrates that the conflation of the two terms lacks grounding in a sound theory of legal interpretation. Second, it submits that the requirements of respect for national and constitutional identity, as articulated in the EU Treaty and in the case law of certain constitutional courts, respectively, rest on different normative foundations: fundamental principles of political morality versus a claim to State sovereignty. Third, it is argued that the Treaty-makers had good reasons for writing into the EU Treaty a requirement of respect for the Member States’ national identities rather than the States’ sovereignty, or their constitutional identity.


Elke Cloots
Elke Cloots is post-doctoral researcher at the Centre for Government and Law, University of Hasselt.
Article

ChAFTA, Trade, and Food Safety

When the Rubber Hits the Road

Journal European Journal of Law Reform, Issue 4 2016
Keywords food safety laws in China and implementation issues, China-Australia Free Trade Agreement (ChAFTA), agricultural trade, corporate social responsibility, collaborative governance
Authors Ying Chen
AbstractAuthor's information

    Over the past decade, food safety has evolved into a compelling issue in China. The Chinese government has been committed to strengthening the regulatory framework. A series of laws and regulations ensuring the quality and safety of food in the interests of public health have been promulgated. However, a fairly comprehensive set of laws, along with harsh punishments, does not substantially deter food safety violations. Rather, foodborne illnesses continue to occur on a daily basis. How to improve food safety has become China’s national priority; it is also the main focus of this research. This article determines that one of the main obstacles to food safety is poor implementation of laws. It identifies the external and internal impediments to food safety governance in China. It further proposes an evolving series of potential solutions. Externally, weak enforcement undermines the credibility of the food safety laws. Internally, food manufacturers and distributors in China lack the sense of corporate social responsibility (CSR). To effectively reduce or even remove the external impediment, it is imperative to improve the overall governance in various sectors. As for the internal impediment, incorporating CSR principles into business operations is vital for food safety governance. In fact, the enforcement of many regional trade agreements, in particular, the enforcement of China–Australia FTA (ChAFTA) will largely increase market share of Australian food products in China. Undoubtedly, Chinese food businesses will face unprecedented competition. The pressure to gain competitive advantages in food markets yields an enormous change in motivation for Chinese food businesses. Chinese food companies will ultimately be forced to ‘voluntarily’ integrate CSR principles into their business operations. A significant change in the food sector is expected to be seen within the next decade. The article concludes that better practice in food safety governance in China requires two essential elements: a comprehensive regulatory and cooperative framework with essential rules and institutions, and an effective implementation mechanism involving both the public and private sectors.


Ying Chen
Dr. Ying Chen, Lecturer in Law, University of New England School of Law, Armidale, NSW2351, Australia. Email: ychen56@une.edu.au.
Article

Systems Thinking, Big Data, and Data Protection Law

Using Ackoff’s Interactive Planning to Respond to Emergent Policy Challenges

Journal European Journal of Law Reform, Issue 4 2016
Keywords big data, data protection, data minimization, systems thinking, interactive planning
Authors Henry Pearce
AbstractAuthor's information

    This article examines the emergence of big data and how it poses a number of significant novel challenges to the smooth operation of some of the European data protection framework’s fundamental tenets. Building on previous research in the area, the article argues that recent proposals for reform in this area, as well as proposals based on conventional approaches to policy making and regulatory design more generally, will likely be ill-equipped to deal with some of big data’s most severe emergent difficulties. Instead, it is argued that novel, and possibly unorthodox, approaches to regulation and policy design premised on systems thinking methodologies may represent attractive and alternative ways forward. As a means of testing this general hypothesis, the article considers Interactive Planning, a systems thinking methodology popularized by the organizational theorist Russel Ackoff, as a particular embryonic example of one such methodological approach, and, using the challenges posed by big data to the principle of purpose limitation as a case study, explores whether its usage may be beneficial in the development of data protection law and policy in the big data environment.


Henry Pearce
University of Hertfordshire, Lecturer in law, e-mail: h.pearce@herts.ac.uk.
Article

The Fight against Corruption in Sierra Leone

Challenges and Opportunities in the Jurisprudence

Journal African Journal of International Criminal Justice, Issue 1-2 2016
Keywords Accountability, corruption, judicial approach, jurisprudence, reforms
Authors Michael Imran Kanu
AbstractAuthor's information

    The fight against corruption in Sierra Leone gained momentum, at least in terms of policy direction, following the enactment of the Anti-Corruption Act 2000 and the Amendment Act in 2008. It is considered to be one of the most robust anti-graft laws in the world and its promulgation is in recognition of the international and national resolve to fight the menace, owing to its devastating effects, especially in the Least Developed Countries (LCDs) of the world. The Anti-Corruption Act of 2000, though viewed as a tremendous move towards curtailing corruption, was riddled with shortcomings. Practitioners viewed the Act as limited in the number of proscribed offences created, coupled with the lack of independence signified by the absence of prosecutorial powers. With the enactment of the Amendment Act in 2008, it is crucial to examine the opportunities it has created to eradicate corruption. Critical also to the national and global resolve is the consideration of challenges that may have sprouted. This paper will examine some of the opportunities and challenges in the jurisprudence in the fight against corruption in Sierra Leone, with the aim of providing an avenue for reflection as well as a prompter for legislative reforms or change in judicial approach.


Michael Imran Kanu
Department of Legal Studies, Central European University. Email: Kanu_Michael@phd.ceu.edu.
Article

Piecemeal Harmonization of European Civil Law

The Case of Limitation Periods in the Antitrust Damages Directive

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2016
Authors Miriam Buiten
Author's information

Miriam Buiten
PhD candidate, Rotterdam Institute of Law and Economics, Erasmus University Rotterdam.
Article

In Fairness to Future Generations

Building Effective Public Participation

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2016
Authors Sándor Fülöp
Author's information

Sándor Fülöp
Senior research fellow, National University of Public Service.

Attila Pánovics
Senior lecturer, University of Pécs Faculty of Law, Pécs.

György Andrássy
Professor at the Department of Philosophy of Law and Social Theory, Faculty of Law, University of Pécs.
Article

Access_open A Law and Economics Approach to Norms in Transnational Commercial Transactions: Incorporation and Internalisation

Journal Erasmus Law Review, Issue 1 2016
Keywords Incorporation and internalisation, transnational commercial transactions, transnational commercial norms
Authors Bo Yuan
AbstractAuthor's information

    In today’s global economy, a noticeable trend is that the traditional state-law-centred legal framework is increasingly challenged by self-regulatory private orders. Commercial norms, commercial arbitration and social sanctions at the international level have become important alternatives to national laws, national courts and legal sanctions at the national level. Consisting of transnational commercial norms, both codified and uncodified, and legal norms, both national and international, a plural regime for the governance of transnational commercial transactions has emerged and developed in the past few decades. This article explores the interaction between various kinds of norms in this regime, identifies the effects of this interaction on the governance of transnational commercial transactions and shows the challenges to this interaction at the current stage. The central argument of this article is that the interaction between social and legal norms, namely incorporation and internalisation, and the three effects derived from incorporation and internalisation, namely systematisation, harmonisation and compliance enhancement, are evident at both the national and international levels. In particular, the emergence of codified transnational commercial norms that are positioned in the middle of the continuum between national legal norms and uncodified transnational commercial norms has brought changes to the interaction within the international dimension. Although the development of codified transnational commercial norms faces several challenges at the moment, it can be expected that these norms will play an increasingly important role in the future governance of transnational commercial transactions.


Bo Yuan
Bo Yuan is a Ph.D. candidate at the Erasmus University Rotterdam, Department of Law and Economics.
Article

Access_open Report of the 59th Colloquium on the Law of Outer Space

Guadalajara, Mexico, 2016

Journal International Institute of Space Law, Issue 8 2016
Authors P.J. Blount and R. Moro-Aguilar

P.J. Blount

R. Moro-Aguilar

Philippe Clerc
Head of Legal Department – Centre National d’Etudes Spatiales (CNES) – 2 Place Maurice Quentin 75 039 Paris cedex 01 France. philippe.clerc@cnes.fr.
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