Search result: 51 articles

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Year 2017 x
Article

Access_open The Questionable Legitimacy of the OECD/G20 BEPS Project

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

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


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

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

A Critical Assessment on Authority and Legitimacy

Journal Erasmus Law Review, Issue 2 2017
Keywords Global Forum on Transparency and Exchange of Information, exercise of regulatory authority, due process requirements, peer review reports, legitimacy
Authors Leo E.C. Neve
AbstractAuthor's information

    The Global Forum on transparency and exchange of information for tax purposes has undertaken peer reviews on the implementation of the global standard of exchange of information on request, both from the perspective of formalities available and from the perspective of actual implementation. In the review reports Global Forum advises jurisdictions on required amendments of regulations and practices. With these advices, the Global Forum exercises regulatory authority. The article assesses the legitimacy of the exercise of such authority by the Global Forum and concludes that the exercise of such authority is not legitimate for the reason that the rule of law is abused by preventing jurisdictions to adhere to due process rules.


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

Codification in a Civil Law Jurisdiction: An Italian Perspective

Journal European Journal of Law Reform, Issue 4 2017
Keywords civil law jurisdictions, codification, consolidation, legislative drafting, judicial review
Authors Enrico Albanesi
AbstractAuthor's information

    The aim of this article is to describe the mechanism of codification in a civil law jurisdiction. The case study will be based on the Italian system. The history and developments of the Italian codification will also be described here.
    In Italy codification is called riassetto, it is normally carried out by the government but the changes to existing law must be within the strict boundaries of the principles and criteria set out by the parliament. By contrast, the mechanism to amalgamate existing texts dealing with a single topic without radical changes is called consolidamento. It is carried out by the government as delegated by parliament. However, as the tools to carry out riassetto and consolidamento are the same (decreto legislativo: a decree issued by the government, which is delegated by the parliament), it is not always easy to understand when the government is allowed to carry out consolidamento only or riassetto too. Actually, how fundamentally the government is allowed to change existing legislation depends on what the principles and criteria of the enabling Act of Parliament allows.
    A decreto legislativo that is not in compliance with the principles and criteria established by the Act of Parliament, could be declared void by the Corte costituzionale (the Italian Constitutional Court). Therefore, if the government exceeds the boundaries of consolidamento or riassetto, the decreto legislativo could be declared void.
    This essay will also focus on the different drafting techniques of consolidamento and riassetto from a theoretical perspective and from the point of view of the jurisprudence of the Consiglio di Stato and the Corte costituzionale. Finally, it will look at the drafting process for codes in Italy, underlying the differences with systems where law reform agencies have been established.


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

Codification in a Civil Law Jurisdiction: A Northern European Perspective

Journal European Journal of Law Reform, Issue 4 2017
Keywords codification, types, civil law, legal certainty, ICT
Authors Patricia Popelier
AbstractAuthor's information

    In western civil law jurisdictions, 19th century large-scale codification projects have made way for more specific, technical operations. While several terms for various operations are used – from coordination to consolidation or recasting – they all serve to compile normative texts within one single document for the sake of clarity and legal certainty. A more fundamental distinction can be made between formal and substantial codifications, the one more technical, the other large and fundamental. Substantial law reforms are problematized in this era of multilevel governance and digitalization. Nowadays, substantial codifications are essentially non-exhaustive, inconsistent, and fragmentized. Also, they rely upon formal consolidations, and generate new formal consolidations. While formal consolidations are still treated as logistic projects, more developed ICT tools may enable their transformation into continuous processes.


Patricia Popelier
Professor Constitutional Law and Legislative Studies, University of Antwerp.
Article

Time for a Code: Reform of Sentencing Law in England and Wales

Journal European Journal of Law Reform, Issue 4 2017
Keywords Law Commission, codification, consolidation, consultation, criminal procedure
Authors Harry O’Sullivan and David Ormerod
AbstractAuthor's information

    The Law Commission of England and Wales is currently working to produce a New Sentencing Code that will seek to remedy problems with one of the most heavily used and unsatisfactory areas of statutory law. It responds to the problems of complexity and inaccessibility in the current sentencing legislation, and more fundamentally in the process by which sentencing legislation is created and implemented. The aim is to introduce the new Code as a consolidation Bill in 2018 with a view to it being in force from early 2019. This article provides an overview of the problems endemic to the current law and how the Commission envisages that the new Sentencing Code will provide not only a remedy, but a lasting one.
    It is important to understand from the outset that the scope of the Commission’s work on sentencing is to reform procedure. The project and the resulting legislation will not alter the length or level of sentence imposed in any case. The penalties available to the court in relation to an offence are not within the scope of the project and will not change. The change will be in the process by which each sentence is arrived at.


Harry O’Sullivan
Harry O’Sullivan is a pupil at Goldsmith Chambers and was formerly a research assistant at the Law Commission.

David Ormerod
Professor David Ormerod QC is the Criminal Law Commissioner.
Article

The Reform and Harmonization of Commercial Laws in the East African Community

Journal European Journal of Law Reform, Issue 4 2017
Keywords law reform, harmonization of laws, commercial laws, legal transplants, East African Community
Authors Agasha Mugasha
AbstractAuthor's information

    The partner states in the East African Community (EAC) have modernized their commercial laws to claim their post-colonial identity and facilitate development. While law reform and the harmonization of laws are both methods of shaping laws, the national law reform programmes in the EAC mainly aim to ensure that the laws reflect the domestic socioeconomic circumstances, in contrast to the harmonization of national commercial laws, which focuses on the attainment of economic development. This article observes that the reformed and harmonized commercial laws in the EAC are mainly legal transplants of the principles of transnational commercial law that have been adapted to meet domestic needs and aspirations.


Agasha Mugasha
Professor of Law, University of Essex; and former Chairperson, Uganda Law Reform Commission 2011-2015.
ECJ Court Watch

Case C-474/16. Social security

The public prosecutor, Belu Dienstleistung GmbH & Co KG, Stefan Nikless, reference lodged by the French Cour d’appel de Colmar on 29 August 2016

Journal European Employment Law Cases, Issue 4 2017

    The highest administrative court in the Netherlands has delivered a razor-sharp ruling on the intra-community service provision set out in Articles 56 and 57 of the Treaty on the Functioning of the European Union). This concerns ‘new’ EU-nationals who are still under transitional measures with regard to access to the labour markets of ‘old’ EU Member States. The judgment was preceded by a request from the Chairman to a State Councillor Advocate General to deliver his opinion on various aspects of punitive administrative law practice in the Netherlands. Both the opinion and the judgment are a welcome clarification and addition (or even correction) on the practice.


Bart J. Maes
Bart J. Maes is a partner at Maes Staudt Advocaten N.V. in Eindhoven, the Netherlands (www.maes-staudt.nl).
Article

Access_open The Right to Same-Sex Marriage: Assessing the European Court of Human Rights’ Consensus-Based Analysis in Recent Judgments Concerning Equal Marriage Rights

Journal Erasmus Law Review, Issue 3 2017
Keywords same-sex marriage, gay marriage, European consensus, margin of appreciation, consensus-based analysis by the ECtHR
Authors Masuma Shahid
AbstractAuthor's information

    This contribution assesses the consensus-based analysis and reasoning of the European Court of Human Rights in recent judgments concerning equal marriage rights and compares it to the Court’s past jurisprudence on European consensus and the margin of appreciation awarded to Member States regarding the issue of equal marriage rights. The contribution aims to analyse whether there is a parallel to be seen between the rapid global trend of legalisation of same-sex marriage and the development or evolution of the case law of the ECtHR on the same topic. Furthermore, it demonstrates that the Court’s consensus-based analysis is problematic for several reasons and provides possible alternative approaches to the balancing of the Court between, on the one hand, protecting rights of minorities (in this case same-sex couples invoking equal marriage rights) under the European Convention on Human Rights and, on the other hand, maintaining its credibility, authority and legitimacy towards Member States that might disapprove of the evolving case law in the context of same-sex relationships. It also offers insights as to the future of European consensus in the context of equal marriage rights and ends with some concluding remarks.


Masuma Shahid
Lecturer, Department of International and European Union Law, Erasmus School of Law, Rotterdam.
Article

Access_open Administering Justice and Serving the People

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

Journal Erasmus Law Review, Issue 3 2017
Keywords access to justice, procedural law, courts, civil justice reform, comparative law
Authors Catherine Piché
AbstractAuthor's information

    Canada has a complex system of courts that seek to serve Canadians in view of the traditional objectives of civil justice – principally accessibility, efficiency, fairness, efficacy, proportionality and equality. The Canadian court system is generally considered by its users to work well and to have legitimacy. Yet, researchers have found that ‘there is a tendency for people involved in a civil case to become disillusioned about the ability of the system to effect a fair and timely resolution to a civil justice problem’. This article will discuss the ways in which reforms of procedural law and civil justice have originated and continue to be made throughout Canada, both nationally and provincially, as well as the trends and influences in making these reforms. With hundreds of contemporary procedural reforms having been discussed, proposed and/or completed since the first days of Canadian colonisation on a national basis and in the Canadian provinces and territory, providing a detailed analysis will prove challenging. This article will nonetheless provide a review of civil justice and procedural reform issues in Canada, focusing principally, at the provincial level, on the systems of Ontario and Quebec. Importantly, I will seek to reconcile the increasing willingness to have an economically efficient civil justice and the increased power of judges in managing cases, with our court system’s invasion of ADR and its prioritisation of informal modes of adjudication.


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

Access_open A Critical Appraisal of the Role of Retribution in Malawian Sentencing Jurisprudence

Journal Erasmus Law Review, Issue 3 2017
Keywords sentencing, retribution, just deserts, punishment, Malawi
Authors Esther Gumboh
AbstractAuthor's information

    The theory of retribution is a central tenet in Malawian sentencing jurisprudence. Courts have given expression to retribution in various ways, most conspicuously through the recognition of the principle of proportionality as the most important principle in sentencing. Retribution has permeated courts’ consideration of certain sentencing factors such as the seriousness of the offence, family obligations and public opinion. Overall, retribution rightly plays a pivotal role in Malawian sentencing jurisprudence by elevating the principle of proportionality to the most important principle in sentencing. Malawian courts have also noted that whether in pursuit of retribution or utilitarianism, the ultimate objective is to arrive at a sentence that is just and fair in relation to the crime and the offender. This also ensures that the sentence imposed does not offend the prohibition of cruel, inhuman and degrading punishment.


Esther Gumboh
Esther Gumboh is a postdoctoral Fellow at the University of Cape Town, South Africa.
Article

The New World Order in Dispute Resolution

Brexit and the Trump Presidency

Journal International Journal of Online Dispute Resolution, Issue 1 2017
Keywords dispute resolution, Brexit, Donald Trump, technology, trade
Authors Ijeoma Ononogbu
AbstractAuthor's information

    The Brexit vote and Donald J Trump as the leader of the Free world in 2016 brought in a new world order. Two hugely important and unexpected events of 2016. Both have called into question the stability of established international commercial dispute resolution schemes in the United Kingdom and the United States in our tech savvy world. As the impact of both events unfolds, adaptations made to the existing dispute resolution schemes will be negotiated and the role that technology can play in the new approaches to international commercial dispute resolution will be determined. Consequently, there has been the changing face of Western politics after the Cold War, based on traditional group identity giving way to an uncertain landscape in which the political class struggle to define. The impact and disruption of technology in politics has given everyone a voice regardless of social class. Consequently, the EU under Mr Juncker and the UK Prime Minister seem to have mutual respect in their negotiations, given that the UK has made a number of notable concessions in order to move the trade discussions forward.
    Under Donald Trump presidency, the state of North America Free Trade Agreement (NAFTA) seems binary with the probing question will NAFTA survive or not. NAFTA is currently undergoing transformation, a process that incorporates Investor-State Dispute Settlement (ISDS).


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

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

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

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

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

Access_open The Promise and Potential of Online Dispute Resolution in Japan

Journal International Journal of Online Dispute Resolution, Issue 2 2017
Keywords Online Dispute Resolution, ODR, ADR, e-Commerce
Authors Hiroki Habuka and Colin Rule
AbstractAuthor's information

    Information technology has dramatically changed the way consumers and businesses transact around the world. Many consumer goods (such as videos, music and software) are purchased online through the Internet instead of through physical stores. Businesses have similarly migrated many of their commercial transactions online, including proposals, due diligence, negotiation and signing. However, most dispute resolution processes have not yet made a similar move; they occur face-to-face, even when the dispute arose online. This has led to a new type of dispute resolution, called ODR (or Online Dispute Resolution). ODR is the use of technology to resolve disputes, and it is being promoted in many countries around the world as a model for civil justice in an online age. North America and the European Union (EU) have aggressively promoted ODR, and there are many ODR projects currently underway. As one of the leading online economies in the world, Japan is facing many of the same challenges as the rest of the world in providing fast and fair resolutions to online consumers. But to date, ODR has not gotten much traction in Japan. Recently, the Japanese Consumer Network published a report about ODR for cross-border e-commerce transactions and encouraged the government to establish a working group for implementation of ODR. However, discussion by multiple stakeholders towards practical implementation of ODR has not yet started in earnest. This article aims to focus the discussion about how to implement ODR in Japan, providing information about the latest developments in global ODR frameworks and envisioning the challenges ODR faces in the Japanese market.


Hiroki Habuka
Hiroki Habuka is a Deputy Director of Information Economy Division, Commerce and Information Policy Bureau, of Ministry of Economy, Trade and Industry of Japan (METI). He graduated from University of Tokyo Law School (J.D.) and Stanford Law School (LL.M.).

Colin Rule
Colin Rule is Vice President, Online Dispute Resolution, Tyler Technologies. He served as Director of Online Dispute Resolution at eBay and PayPal, and co-founded Modria.com, an ODR provider that was sold to Tyler Technologies in 2017.
Article

The Law of Consumer Redress in an Evolving Digital Market

Upgrading from Alternative to Online Dispute Resolution

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

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


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

Scrutinizing Access to Justice in Consumer ODR in Cross-Border Disputes

The Achilles’ Heel of the EU ODR Platform

Journal International Journal of Online Dispute Resolution, Issue 2 2017
Authors Fernando Esteban de la Rosa
Author's information

Fernando Esteban de la Rosa
Fernando Esteban de la Rosa is Professor of Private International Law, University of Granada.
Article

The Ringworm Case and the Lost Opportunities for the Construction of a Collective Healing Process

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2017
Keywords public health, apology, disclosure of medical errors, collective healing process, ringworm case
Authors Dr. Nili Karako Eyal
AbstractAuthor's information

    The issue of apology and disclosure of medical errors in the context of the physician- patient relationship has attracted increasing attention in recent years. On the other hand, it has received little attention in the context of public health activities, thus missing the collective healing potential of apologizing and providing information to the public.
    The purpose of this paper is to enrich the discussion regarding apologies and disclosure errors in the context of public health. To fulfil this purpose, the paper addresses the ringworm case, which is a well- known episode in the history of Israeli public health policy. More specifically, the paper focuses on a decision handed by the Israeli Supreme Court in the Eibi Case (2015), which recognized a duty to inform ringworm patients about the medical error involved in their treatment and its results. The paper seeks to examine whether this decision succeeded where other legal means failed, in the construction of a collective healing process. The paper concludes that although the Eibi Case provided the court an opportunity to contribute to the creation of a collective healing process of ringworms patients, the decision didn’t fully realize this potential.


Dr. Nili Karako Eyal
Dr. Nili Karako-Eyal is a Senior Lecturer at the School of Law, The College of Management Academic Studies, Rishon LeZion, Israel.
Article

Therapeutic Justice and Vaccination Compliance

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2017
Keywords public health, trust, vaccination, health law, health policy
Authors Shelly Kamin-Friedman
AbstractAuthor's information

    Recent decades have witnessed the appearance of multiple grounds for vaccine hesitancy. One of the options to deal with this phenomenon is legislative. Given that vaccination enforcement through law raises allegations of infringement of constitutional rights, interventions seeking to promote vaccination compliance should rather address the factors that influence vaccine hesitancy, which are – by and large – related to trust in health authorities. Trust in health authorities may be promoted by a procedure for compensating the comparatively few vaccination victims reflecting a willingness to acknowledge liability and commitment to social justice.
    A qualitative study of the Israeli Vaccination Victim Insurance Law was conducted by the author. The study involved document content analysis (legislative protocols, Court judgments) and semi-structured in-depth interviews with informants representing different legal, medical and ethical perspectives. The thematic analysis found that the Israeli Vaccination Victim Insurance Law and its implementation in Court do not attain their therapeutic potential with respect to the promotion of trust. Barriers to claim submissions and the denial of all claims submitted according to the law do not permit the acknowledgement of liability or the demonstration of the authorities’ commitment to social justice.
    Recognizing the therapeutic power of the Law may lead to adaptations or amendments promoting trust in the health authorities and subsequently fostering vaccine compliance.


Shelly Kamin-Friedman
Adv. Shelly Kamin-Friedman, LL.B, MHA is a specialist in Health Law and a Ph.D. candidate at Ben-Gurion University of the Negev, Be'er Sheva, Israel.
Article

Intersecting Professions

A Public Health Perspective on Law to Address Health Care Conflicts

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

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


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

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