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Year 2013 x
Article

Sir William Dale Annual Lecture

The Law Commission and the Implementation of Law Reform

Journal European Journal of Law Reform, Issue 4 2013
Authors The Rt. Hon. Sir David Lloyd Jones
Author's information

The Rt. Hon. Sir David Lloyd Jones
Chairman of the Law Commission of England and Wales.
Article

Donors without Borders

A Comparative Study of Tax Law Frameworks for Individual Cross-Border Philanthropy

Journal European Journal of Law Reform, Issue 4 2013
Keywords comparative, philanthropy, tax, deduction, international
Authors Joseph E. Miller, Jr.
AbstractAuthor's information

    Under current United States tax law, individual gifts to foreign charities generally are not deductible from federal income tax as charitable contributions. A comparative study of analogous tax laws in Switzerland and the United Kingdom demonstrates that the Swiss approach generally reflects the same prohibition against tax deductions for individual gifts to foreign charities, while British law permits such deductibility for gifts to qualified charities in other EU member states, Norway, and Iceland.
    All three countries’ legal frameworks demonstrate that their respective notions of the ‘public interest’ significantly affect their approaches to deductibility for gifts to foreign charities. The British conception of public interest, enlarged by participation in the European Union and the nondiscrimination requirements of the EU treaties, is embodied in its more expansive deductibility rules. Swiss non-participation in the EU, by contrast, reflects a more isolationist notion of public interest and may inform its prohibition on deductions for gifts to foreign charities. The narrower Swiss approach parallels the United States’ approach, and it suggests that an American expansion of deductibility for foreign charitable gifts could be encouraged by American participation in the proposed TPP, TTIP, or other multilateral trade agreements or economic unions.


Joseph E. Miller, Jr.
Joseph E. Miller is partner at Faegre Baker Daniels.
Article

Access_open Towards Context-Specific Directors' Duties and Enforcement Mechanisms in the Banking Sector?

Journal Erasmus Law Review, Issue 2 2013
Keywords banking sector, directors' duties, financial crisis, context-specific doctrines, public enforcement
Authors Wasima Khan LL.M.
AbstractAuthor's information

    The global financial crisis gives reason to revisit the debate on directors’ duties in corporate law, mainly with regard to the context of banks. This article explores the need, rationale and the potential for the introduction of context-specific directors’ duties and enforcement mechanisms in the banking sector in the Netherlands from a comparative perspective.
    Chiefly, two legal strategies can be derived from the post-crisis developments and calls for legal reforms for the need and rationale to sharpen directors’ duties in the context of the banking sector in order to meet societal demands. The two strategies consist in shifting the scope of directors’ duties (i) towards clients’ interests and (ii) towards the public interest.
    Subsequently, this article explores the potential for context-specific directors’ duties and accompanying enforcement mechanisms. Firstly, it is argued that the current legal framework allows for the judicial development -specific approach. Secondly, such context-specific directors’ duties should be enforced through public-enforcement mechanisms to enhance the accountability of bank directors towards the public interest but currently there are too much barriers for implementation in practice.
    In conclusion, this article argues that there is indeed a need, rationale and potential for context-specific directors’ duties; yet there are several major obstacles for the implementation of accompanying public-enforcement mechanisms. As a result, the introduction of context-specific directors’ duties in the banking sector may as yet entail nothing more than wishful thinking because it will merely end in toothless ambitions if the lack of accompanying enforcement mechanisms remains intact.


Wasima Khan LL.M.
PhD Candidate at the Erasmus School of Law, Erasmus University Rotterdam. The author wishes to express her gratitude for valuable comments on an earlier draft of this article from Prof. Vino Timmerman and Prof. Bastiaan F. Assink at the Erasmus School of Law, Erasmus University Rotterdam, as well as the Journal‘s editors and peer reviewers. Any errors remain those of the author.
Article

Access_open Offer and Acceptance and the Dynamics of Negotiations: Arguments for Contract Theory from Negotiation Studies

Journal Erasmus Law Review, Issue 2 2013
Keywords Contract Formation, Offer and Acceptance, Negotiation, Precontractual, UNIDROIT Principles of International Commercial Contracts
Authors Ekaterina Pannebakker LL.M.
AbstractAuthor's information

    The doctrine of offer and acceptance forms the basis of the rules of contract formation in most western legal systems. However, if parties enter into elaborate negotiations, these rules may become difficult to apply. This paper addresses the application of the doctrine of offer and acceptance to the formation of contract in the context of negotiations. The paper argues that while the doctrine of offer and acceptance is designed to assess the issues related to the substance of the future eventual contract (the substantive constituent of negotiations), these issues overlap within the context of negotiations with the strategic and tactical behaviour of the negotiators (dynamic constituent of negotiations). Analysis of these two constituents can be found in negotiation studies, a field which has developed over the last decades. Using the rules of offer and acceptance of the UNIDROIT Principles of International Commercial Contracts as an example, this paper shows that the demarcation between the substantive and the dynamic constituents of negotiations can be used as the criterion to distinguish between, on the one hand, the documents and conduct forming a contract, and, on the other hand, other precontractual documents and conduct. Furthermore, the paper discusses the possibility of using the structure of negotiation described by negotiation studies as an additional tool in the usual analysis of facts in order to assess the existence of a contract and the moment of contract formation.


Ekaterina Pannebakker LL.M.
PhD candidate, Erasmus School of Law, Erasmus University Rotterdam. I thank Sanne Taekema and Xandra Kramer for their valuable comments on the draft of this article, and the peer reviewers for their suggestions. The usual disclaimer applies.
Article

The Pursuit of Clarity, Precision and Unambiguity in Drafting Retrospective Legislation

Journal European Journal of Law Reform, Issue 3 2013
Keywords retrospectivity, clarity, precision, unambiguity, legislative drafting
Authors Elias Turatsinze
AbstractAuthor's information

    The hypothesis of this paper is that clarity, precision and unambiguity are the essential tools for expressing retrospective intent, which is a pre-requisite for quality and validity of retrospective legislation. The main objective of this work is to show that retrospective laws are valid, if the retrospective intent is expressed in clear, precise and unambiguous words within the statute. The term retrospectivity is used broadly to describe any legislation or decision affecting pre-enacting conduct. It encompasses statutes affecting the pre-enactment events, administrative regulations or decisions which look back in time and judicial decisions that overturn prior decisions. All these areas cannot be covered in this limited piece of work. Thus, the emphasis in this work will be put on retrospectivity of statutes at the drafting stage. Although it may be referred to generally, retrospective delegated legislation is outside the scope of this work. Particular attention will be directed towards the importance of clarity, precision and unambiguity in attaining quality and validity of retrospective legislation.


Elias Turatsinze
Elias Turatsinze graduated in Legislative Drafting (LLM) from the University of London- Institute of Advanced Legal Studies in 2012.
Article

Legislative Techniques in Rwanda

Present and Future

Journal European Journal of Law Reform, Issue 3 2013
Keywords legislative drafting, law-making, drafting techniques, Rwanda, quality of legislation
Authors Helen Xanthaki
AbstractAuthor's information

    This report is the result of the collective work of 26 Rwandan civil servants from a number of ministries, who set out to offer the Ministry of Justice a report on legislative drafting in Rwanda. The work was undertaken under the umbrella of the Diploma in Legislative Drafting offered by the Institute for Legal Professional Development (ILPD) in Nyanza under the rectorship of Prof. Nick Johnson. The authors have used their experience of practising drafting in Rwanda, but have contributed to the report in their personal capacity: their views are personal and do not reflect those of the Government of Rwanda.
    My only contribution was the identification of topics, which follows the well-established structure of manuals and textbooks in drafting; the division of the report into two parts: Part 1 on the legislative process and Part 2 on drafting techniques; and the methodology of each individual entry to our report: what is current Rwandan practice, what are international standards, what is the future of Rwanda, and a short bibliography to allow the readers and users of the report to read further, if needed.
    The strength of this report lies both in the methodology used and in the content offered. The breakdown of topics, their prioritization and their sequence allow the reader to acquire a holistic view on how legislation is drafted in Rwanda, but there is nothing to prevent its use in the context of surveys on legislative drafting and legislative quality in other jurisdictions. The content offers a unique insight into the legislative efforts of a jurisdiction in transition from civil to common law: both styles are assessed without prejudice, thus offering a unique fertile ground for critical assessment and practical impact analysis.
    June 2013


Helen Xanthaki
Senior Lecturer and Academic Director, Centre for Legislative Studies, Institute of Advanced Legal Studies, School of Advanced Study, University of London, Lawyer (Athens Bar).
Article

Statutory Interpretation in Multilingual Jurisdictions

Journal European Journal of Law Reform, Issue 3 2013
Keywords drafting, multilingual, translation, interpretation, authenticity
Authors Odethie Birunga
AbstractAuthor's information

    Considering that every piece of legislation is subject to legal interpretation, its practicability depends highly on successful interpretation. In any legislation drafted in more than one language, divergence in meanings of versions is not only possible, but inevitable. It is not a simple task to draft in a way so that contexts are translated and included in all different language versions so that it becomes one meaningful legislation. While relying on one version only in the course of interpreting a piece of legislation may sound a lot easier, there could be ambiguous passages which may be clarified by consulting other versions. The existence of discrepancies between the versions of legislation is neither a smooth sail in multilingual environment.


Odethie Birunga
Odethie Birungi Kamugundu is a Principal State attorney in the ministry of Justice Rwanda since 2010 in the Legislative drafting department which drafts, coordinates and oversees the drafting of laws in Rwanda. Prior to that, she worked in the National Public Prosecution as a prosecutor from 2002 to 2010. She graduated in Law (LLB) from the National University of Rwanda in 1999, and in Legislative Drafting (LLM) from the University of London- Institute of Advanced Legal Studies in 2012.
Article

The Principle of Ultra Vires and the Local Authorities’ Decisions in England

Journal European Journal of Law Reform, Issue 3 2013
Keywords ultra vires, administrative decisions, legislative drafting, validity and invalidity of local authority administrative decisions, misuse of discretion
Authors Charles Aguma
AbstractAuthor's information

    The hypothesis of this article is that valid administrative decisions from local authorities are guaranteed via clear and precise enabling clauses in the primary legislation. The article argues that the style of drafting local authorities’ legislations influences decisions taken by local authorities. First, legislations need to be drafted in a style that clearly and precisely spells out the limits of powers of the local authorities in order to provide sufficient guidance to local authorities’ administrators to act lawfully. In attempting to exercise implied powers conferred by the imprecise enabling legislation, however, local authorities tend to go beyond intended legal powers and as a result take unreasonable, arbitrary and invalid decisions. More so, drafters rarely provide sufficient guidance about which considerations are properly relevant to the exercise of discretion and which are not. Secondly, obscure, wide and ambiguous enabling clauses in the primary legislations are substantial causes of courts’ misinterpretation of legislation as understanding the limits of the powers of the local authorities is a challenge. On the other hand, it is questionable whether the whole range of activities performed by a local authority by invoking implied powers, while exercising discretion, under the umbrella of doing anything that is calculated to facilitate or is conducive to or incidental to the discharge of any of its functions can be regarded as lawful. This article attempts to respond to that question. Although the principle of ultra vires requires the strict observance of the limits of the powers conferred in legislation, local authorities tend to invoke widely drafted provisions to perform activities that are said to be incidental to the express powers of which courts may declare invalid.


Charles Aguma
Charles Aguma graduated in Legislative Drafting (LLM) from the University of London- Institute of Advanced Legal Studies in 2012.
Editorial

Editorial

Journal European Journal of Law Reform, Issue 3 2013
Authors Cherie Booth and Helen Xanthaki
Author's information

Cherie Booth
Cherie Booth, QC, is a leading barrister specialising in public law, human rights, employment and European Community law, arbitration and mediation.

Helen Xanthaki
Professor Helan Xanthaki is a Senior Lecturer at the Institute of Advanced Legal Studies (School of Advanced Study, University of London), and the Academic Director of the Sir William Dale Centre for Legislative Studies there.
Article

Access_open Multinationals and Transparency in Foreign Direct Liability Cases

The Prospects for Obtaining Evidence under the Dutch Civil Procedural Regime on the Production of Exhibits

Journal The Dovenschmidt Quarterly, Issue 3 2013
Keywords foreign direct liability, corporate social responsibility, transparency document disclosure, Dutch Shell Nigeria case
Authors Liesbeth F.H. Enneking
AbstractAuthor's information

    On 30 January 2013, the The Hague district court rendered a final judgment with respect to a number of civil liability claims against Royal Dutch Shell (RDS) and its Nigerian subsidiary Shell Petroleum Development Company of Nigeria (SPDC) that had been pursued by four Nigerian farmers and the Dutch NGO Milieudefensie in relation to various oil spills from SPDC-operated pipelines in the Nigerian Niger Delta. This case is the first Dutch example of a broader, worldwide trend towards similar transnational civil liability procedures against multinational corporations for harm caused to people and planet in developing host countries. This worldwide trend towards so-called ‘foreign direct liability cases’ and the Dutch Shell Nigeria case in particular raise many interesting socio-political as well as legal questions. This article will focus on the question what the prospects are for plaintiffs seeking to pursue such claims before a Dutch court when it comes to obtaining evidence under the Dutch civil procedural regime on the production of exhibits. This is a highly relevant question, since the proceedings in the Dutch Shell Nigeria case seem to indicate that the relatively restrictive Dutch regime on the production of exhibits in civil procedures may potentially impose a structural barrier on the access to remedies before Dutch courts of the victims of corporate violations of people and planet abroad.


Liesbeth F.H. Enneking
Liesbeth Enneking is a Postdoctoral Research Fellow at UCALL, Utrecht University’s multidisciplinary Centre for Accountability and Liability Law, and an Assistant Professor of Private International Law at Utrecht University’s Molengraaff Institute for Private Law. The author would like to thank prof. I. Giesen for comments on an earlier version of this article.
Article

Access_open International Criminal Law and Constitutionalisation

On Hegemonic Narratives in Progress

Journal Erasmus Law Review, Issue 1 2013
Keywords hegemony, constitutionalism, constitutionalisation, international criminal law
Authors Marjan Ajevski
AbstractAuthor's information

    As we move towards constructing narratives regarding the future outlook of global governance, constitutionalisation among them, the hope is that whatever shape this world order takes it will, somehow, forestall or hinder the possibility of a hegemonic order. This article tries to deconstruct the notion of hegemony and claims that as it currently stands it is useless in doing its critical work since every successful narrative will end up being hegemonic because it will employ the ‘hegemonic technique’ of presenting a particular value (or value system), a particular viewpoint, as universal or at least applying to those who do not share it. The only way for a narrative in this discourse not to be hegemonic would be for it to be either truly universal and find a perspective that stems from nowhere and everywhere – a divine perspective – or purely descriptive; the first being an impossibility for fallible beings and the other not worth engaging with since it has nothing to say about how things should be structured or decided in a specific situation.


Marjan Ajevski
Post-Doctoral research fellow part of the MultiRights project – an ERC Advanced Grant on the Legitimacy of Multi-Level Human Rights Judiciary – <www.MultiRights.net>; and PluriCourts, a Research Council of Norway Centre of Excellence – <www.PluriCourts.net>, Norwegian Centre of Human Rights, Faculty of Law, University of Oslo. I can be contacted at marjan.ajevski@nchr.uio.no.
Article

Access_open A Description of the Historical Developments in Standard Setting and Regulations for Auditors and the Audit Firms in an International Perspective

Journal The Dovenschmidt Quarterly, Issue 2 2013
Keywords Audit profession, international audit regulations, public-interest entities, historical developments
Authors Paul van der Zanden and Peter M. van der Zanden
AbstractAuthor's information

    The article discusses the historical developments within the audit profession as well as the developments in the rules and regulations relating to this profession. It does so in an international perspective. The authors compare the traditionally more Anglo-Saxon oriented approach with the traditionally more continental European approach. They discuss the influence and impact of these different approaches on each other as well as the impact of this process on regulation on a European level and implementation thereof on a local level. The developments in the Netherlands, which evidence this process, are used as an illustration. Throughout the article the authors also make some critical observations and notes with respect to the developments discussed.


Paul van der Zanden
Paul van der Zanden, Attorney at law, Banning N.V.

Peter M. van der Zanden
Peter M. van der Zanden, Emeritus professor Financial Accounting and former partner Ernst & Young.

P.J. Blount
University of Mississippi School of Law, United States, pjblount@gmail.com.
Article

Access_open Climate Change

A Major Challenge and a Serious Threat to Enterprises

Journal The Dovenschmidt Quarterly, Issue 1 2013
Keywords volgt
Authors Elbert R. de Jong and Jaap Spier
AbstractAuthor's information

    volgt


Elbert R. de Jong
Elbert de Jong is PhD candidate at the Molengraaff Institute for Private Law, Utrecht University.

Jaap Spier
Jaap Spier is Advocate-General in the Supreme Court of The Netherlands and Honorary Professor at Maastricht University.
Article

Keeling Schedules and Clarity in Amending Legislation

Journal European Journal of Law Reform, Issue 1 2013
Keywords Keeling schedule, amending legislation, PACE
Authors Ronan Cormacain
AbstractAuthor's information

    Most legislation proceeds by way of amending existing legislation. It is difficult for the amending legislation to set out both the changes being made to the law as well as what the law will be after the changes. Various techniques for achieving clarity in amending legislation are analysed. The article concludes that the Keeling schedule is a useful tool for this purpose.


Ronan Cormacain
Consultant Legislative Counsel.
Article

Responsive Law Reform: A Case Study in Privacy and the Media

Journal European Journal of Law Reform, Issue 1 2013
Keywords law reform, regulatory theory, privacy, free speech, media
Authors Megan Richardson
AbstractAuthor's information

    This article develops a regulatory theory of law reform for common law jurisdictions drawing on a model of responsive regulation and applies it to a case study in Privacy and the Media with particular reference to law reform initiatives in Australia, New Zealand and the UK.


Megan Richardson
Professor of Law and Co-Director Centre for Media & Communications Law, Melbourne Law School, The University of Melbourne, former member of an International Advisory Panel for the New South Wales Law Reform Commission reference on invasion of privacy. This article was substantially written at the Institute for Advanced Legal Studies, where I had the privilege of being a Research Fellow in September–December 2012. I am grateful to the Institute for allowing me to spend three months in this excellent facility and also to my home institution, The Melbourne Law School, for supporting my research period abroad. The ideas in this article were presented at seminars at the Institute and at the Dickson Poon School of Law, King’s College London. I am grateful to those who attended for their helpful comments and especially to Tanya Aplin, Lyria Bennett Moses, Desmond Browne QC, Stewart Dresner, James Michael and Jan Oster. Thanks also to my colleagues Andrew Kenyon and Jason Bosland for additional helpful insights.
Article

Access_open Between a Rock and a Hard Place: Treaty-Based Settlement of Terrorism-Related Disputes in the Era of Active United Nations Security Council Involvement

Journal Erasmus Law Review, Issue 2 2013
Keywords Terrorism, inter-state dispute, international treaties, the United Nations Security Council, the International Court of Justice
Authors Nathanael Tilahun Ali LL.M.
AbstractAuthor's information

    The United Nations Security Council has become a crucial actor in international counterterrorism by not only spurring the taking of preventive and suppressive measures against terrorist individuals and groups, but also by taking actions against states that are said to stand in the way. The Security Council's actions against such states invariably arise from accusations by other states, such as accusations of refusal to extradite suspects of terrorism or responsibility for supporting terrorists. Meanwhile, most such issues of dispute are covered under international treaties relating to terrorism, which provide for political (negotiation) and judicial (arbitration and adjudication) mechanisms of dispute settlement. The Security Council's actions against states in connection with terrorism, therefore, involve (explicit or implicit) factual and legal determinations that affect the legal positions of the disputing states under the applicable international treaties relating to terrorism. The point of departure of this paper is that, in this respect, the Security Council effectively becomes an alternative to the treaty-based dispute-settlement mechanisms. The article centrally contends that the Security Council effectively acts as a more attractive alternative to treaty-based dispute-settlement mechanisms for pursuing terrorism-related (legal) disputes between states, without providing a meaningful platform of disputation that is based on equality of the parties. And the Security Council's relative attractiveness, arising from the discursive and legal superiority its decisions enjoy and the relative convenience and expediency with which those decisions are delivered, entails the rendering of resort to treaty-based dispute-settlement mechanisms of little legal consequence. The point of concern the article aims to highlight is the lack of platform of disputation some states are faced with, trapped between a hostile Security Council that makes determinations and decisions of legal consequence and an unhelpful treaty-based dispute-settlement mechanism.


Nathanael Tilahun Ali LL.M.
PhD Candidate in public international law, Erasmus School of Law. E: ali@law.eur.nl. I would like to thank Prof. Xandra Kramer and Prof. Ellen Hey for their valuable comments on an earlier draft of this article. The usual disclaimer applies.
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