Search result: 37 articles

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Year 2012 x
Article

What Virtues and Formalities Can Do for Corporate Social Responsibility and the Rule of Law in China?

仁 礼 誠 人, 人 必 治 法, 法 修 其 德, 德 治 其 國

Journal European Journal of Law Reform, Issue 4 2012
Keywords Chinese rule of law, Corporate Social Responsibility (CSR), sustainability, Confucianism, formative free speech
Authors Jin Kong
AbstractAuthor's information

    This article explores sustainability problems in China and foreign interests on the ‘rule of law’ problems there. The article undertakes an organic process improvement method (Define, Measure, Analyze, Control – ‘DMAC’) in hope to improve the west’s expectations of China and China’s own becoming of a rule of law nation. Corruption and environmental problems are of particular interest; China’s legal and political reform histories serve as our starting point; synergies between Confucian mercantile philosophy and modern corporate social responsibility principles are the undertones. The article will first Define the scope of China’s environmental, social, and economic problems; it will Measure the effects of these problems by observing the ontological and metaphysical uniqueness of the Chinese notion of ‘rule of law’ from a historical perspective; the Analysis will involve identifying synergies between Confucianism and Corporate Social Responsibility (hereinafter ‘CSR’); from these observations, this article will submit to Controling steps. Consequently, this article recognizes the need for ‘humanity’ and ‘formality’, in the Chinese sense, to aid one’s becoming of a law-biding person in China. The Chinese people will Control the laws that matter to them; those laws will evolve to cure the virtues of the people they are to govern.


Jin Kong
Jin Kong is a JD Candidate at the Robert H. McKinney School of Law. Jin also writes on the topic of sustainability at his blog, The Green Elephant (dot) US – <www.thegreenelephant.us>. The Chinese subtitle is loosely translated as follows: ‘If there is humanity and formality to aid one’s becoming a law-abiding person in China, they wil control the laws that matter to them; those laws will surely cure the virtues of its people and it is from those virtues a nation can govern.’
Article

Structuring the Judiciary to Conduct Constitutional Review in the Netherlands

A Comparative and European Perspective

Journal European Journal of Law Reform, Issue 4 2012
Keywords centralized/decentralized constitutional review, Netherlands constitutional law, comparative law
Authors Gerhard van der Schyff
AbstractAuthor's information

    Whether a legal system decides to centralize or decentralize constitutional review by the judiciary is dependent on various factors. This article critically considers a host of these factors, ranging from the separation of powers to the desire to bring about far-reaching constitutional change and the possible impact of membership of the European Union, in studying whether in the Netherlands constitutional review should be centralized or decentralized upon its possible introduction. The conclusion is reached that although decentralization can be opted for under the current circumstances, a persuasive case for centralization can also be made and might even become stronger and inevitable depending on the course of future constitutional reform.


Gerhard van der Schyff
Gerhard van der Schyff is Senior Lecturer in Constitutional Law at Tilburg Law School, The Netherlands.
Article

Occurrence of Disruptive Behaviour in Dutch Civil Procedures

An Empirical Study

Journal European Journal of Law Reform, Issue 4 2012
Keywords civil procedure, case management, procedural justice, procedural sanctions, procedural rules
Authors Martin Gramatikov and Stéphanie van Gulijk
AbstractAuthor's information

    In 2002, the civil procedure in the Netherlands was reformed. A fairly simple system of positive and negative stimuli was set up in order to ensure that the civil process develops in an efficient and timely manner. In this article, we explore the prevalence of process-disturbing behaviour as well as the response of the judges to such behaviour. Ninety eight civil cases were observed. We also conducted interviews with judges, lawyers and parties involved in these cases. The main finding is that in almost all cases there is at least one process-disturbing behaviour. On average there are 3.4 instances of such behaviour per case. Most often the disturbing behaviour is part of the categories communication problems. As it concerns the reaction of the judges, we see patterns of various strategies. Judges are not immediately responding actively to disturbing behaviour. However, when a certain threshold has been reached, the judges tend to take active steps and apply the tools they have. Most often, judges use different sorts of communication interventions. Procedural instruments for counteracting disturbing behaviour are used vey rarely. Our interpretation is that judges in the Netherlands are concerned about process efficiency but are also aware of the procedural justice and particularly interpersonal justice aspects of the process. We recommend that initial and ongoing legal education and training pays more attention on the communication and interpersonal skills and abilities involved in dispute resolution.


Martin Gramatikov
Martin Grammatikov is senior researcher at Tilburg University, Private Law department, and Head of Measurement and Evaluation at the Hague Institute for the Internationalisation of Law.

Stéphanie van Gulijk
Stéphanie van Gulijk is senior researcher and lecturer at Tilburg University, Private Law department, and Legal counsel at Poelmann van den Broek Laywers. Both authors cooperated in the research project that is central in this paper: M. Barendrecht, S. van Gulijk, M. Gramatikov, P. Sluijter, De goede procesorde in beeld. Over gedrag van procespartijen en de regiefunctie van de rechter, in Research Memoranda Raad voor de rechtspraak, nummer 1-2011, jaargang 7.
Article

Gender Equality Laws in the Post Socialist States of Central and Eastern Europe

Mainstream Fixture or Fizzer?

Journal European Journal of Law Reform, Issue 4 2012
Keywords gender equality laws, enforcement mechanisms, rule of law, post-socialist states, European Union
Authors Christine Forster and Vedna Jivan
AbstractAuthor's information

    In Central and Eastern European countries, the enactment of gender equality laws (GELs), defined as stand-alone national legislation that provide an overarching legislative response to gender discrimination as distinct from the traditional approach of incorporating gender equality provisions into existing legislation or constitutions, has been a marked regional trend since the collapse of the Soviet Union. However, rather than being driven by domestic movements for change, GELs seem primarily to have emerged due to pressure from development agencies, potential trading partners and donor organisations which predicate their assistance and business on the establishment of the ‘rule of law’ and of particular relevance in the region the desire to join the European Union (EU), which requires potential members to introduce gender equality legislation as part of the communtaire aquis. Despite the widespread enactment of GELs in the region, research suggests that the implementation of GELs has been slow, inefficient and in some cases non-existent. Reasons posited for this include a lack of judicial familiarity with new concepts contained in the legislation, the use of legislation taken from models in existing member states, lack of information disseminated about the new laws to relevant parties, weak political support and capacity weakness in states that are resource stretched. This article considers a further reason – the weakness of the enforcement and implementation mechanisms in the laws themselves and argues that despite the placement of expansive positive duties on a range of public and private actors in many of the GELs, the implementation and enforcement mechanisms of the fifteen GELs considered are weak. Consequently, despite their remarkable scope the duties created under the GELs are largely symbolic and will continue to be so unless, such legislation is amended to include mechanisms to enable the realization of those duties in practice.


Christine Forster
Christine Forster is a senior lecturer at the Faculty of Law of the University of New South Wales, Australia.

Vedna Jivan
Vedna Jivan is Senior Lecturer, UTS Faculty of Law, Australia.
Discussion

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

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

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


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

Access_open ‘Nothing Spells Freedom Like a Hooters Meal’

Journal Netherlands Journal of Legal Philosophy, Issue 3 2012
Keywords Enlightenment universalism, self-governance, freedom, moral point of view, political participation
Authors Ronald Tinnevelt
AbstractAuthor's information

    Winter’s criticism of the conventional account of freedom and democracy is best understood against the background of the history of Enlightenment critique. Winter claims that our current misunderstanding of freedom and self-governance is the result of the strict dichotomy between subject and object. This paper critically reconstructs Winter’s notion of freedom and self-governance which does not adequately address (a) the details of his anti-collectivist claim, and (b) the necessary conditions for the possibility of a moral point of view. This makes it difficult to determine how Winter can distinguish between freedom and lack of freedom, and to assess the limited or radical nature of his critique of Enlightenment universalism.


Ronald Tinnevelt
Ronald Tinnevelt is Associate Professor Philosophy of Law at Radboud University, Nijmegen.

    In this reply, Steven L. Winter adresses his critics.


Steven L. Winter

P. Masambu
Article

Practical and Legal Consequences of Spacecraft End of Life Disposal

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

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

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

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

Simonetta Di Pippo
Italian Space Agency, Italy, simonetta.dipippo@asi.it.
Article

Access_open The Collapse of the Rule of Law

The Messina Earthquake and the State of Exception

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

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


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

Access_open Globalization as a Factor in General Jurisprudence

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

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


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

The Impact of Europeanization of Contract Law on English Contract Law

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

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


Omar Abdelaziz
Article

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

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

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


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

Instructions to Draft Legislation

A Study on Legislative Drafting Process in Rwanda

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

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


Ruth Ikiriza
Article

Consultation: A Contribution to Efficiency of Drafting Process in Malaysia

Journal European Journal of Law Reform, Issue 2-3 2012
Keywords consultation, stakeholders, efficiency of drafting process, elements of efficiency, policy development
Authors Noor Azlina Hashim
AbstractAuthor's information

    Consultation in legislative drafting process is important and widely acknowledged. So far, many countries in the world have taken steps to foster consultation during the early stage of the drafting process. In Malaysia, the importance of opinion from the public or stakeholders in the output of the drafting process was recently evident when several bills presented before the Parliament were criticized because of the failure to take into consideration views and opinions from the public. In some cases, bills were postponed for policy review and refinement. This article examines and discusses consultation practices during the drafting process and analyses and considers the influence of consultation on the efficiency of the drafting process in Malaysia. The influence of consultation practice in relation to the drafting process were shown from a survey conducted on the drafters in the Drafting Division of the Attorney General’s Chambers of Malaysia.


Noor Azlina Hashim
The Attorney General’s Chambers of Malaysia.
Article

The Challenges of Rwandan Drafters in the Drafting Process for Good Quality Legislation

Journal European Journal of Law Reform, Issue 2-3 2012
Keywords quality of legislation, Rwanda, drafting process, drafting instructions, language and drafting, precision, clarity
Authors Alain Songa Gashabizi
Abstract

    Rwanda is a country in search a stable legal system, which includes the drafting of quality legislation. Following the events of the 1994 genocide the lack of experienced drafters and the civil law method of decentralized drafting the Rwandan legislation tends to be of bad quality mainly because of the bad quality drafts provided by the various, often unidentifiable sources of drafting. This article spells out the specific problems that the Rwandan drafter faces and offers solutions by means of a case study. The article concludes by making some specific recommendations.


Alain Songa Gashabizi

Jana Robinson
Article

De selectie van verkiesbare kandidaten

Een analyse van de Belgische Kamerverkiezingen 1999-2010

Journal Res Publica, Issue 3 2012
Keywords candidate selection, representation, Belgium
Authors Gert-Jan Put and Bart Maddens
AbstractAuthor's information

    In a closed or semi-open PR-system, the designation of the MPs is primarily determined by their position on the list. In this paper, we attempt to find out on the basis of which criteria a party selects the candidates who are most likely to be elected, due to their high and/or visible position on the list. We do so by comparing these realistic candidates with the candidates on unrealistic positions on the list. A multi-level logistic regression analysis of the Flemish candidates in four subsequent federal elections in Belgium shows that the selectorates have a marked preference for incumbents and for mayors. Aldermen also stand a better chance of being elected, but only if they are from a larger communality. Women are strongly underrepresented amongst the realistic candidates, but this is only due to the fact that there are relatively few women mayors and incumbents.


Gert-Jan Put
Gert-Jan Put is als aspirant van het FWO verbonden aan het Centrum voor Politicologie van de KULeuven. Hij bereidt een proefschrift voor over de geografische strategie van partijen bij verkiezingen.

Bart Maddens
Bart Maddens is hoogleraar aan het Centrum voor Politicologie van de KULeuven. Hij doet onderzoek over partij- en campagnefinanciering en politieke partijen in multilevelsystemen.

Corinne M. Jorgenson
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