Search result: 24 articles

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Year 2015 x

    This article captures current trends in online dispute resolution (ODR) and its potential use in Ireland by analysing Irish practitioners’ current attitudes to and awareness of ODR. Ultimately, this work provides the groundwork for future research into Ireland’s use of ODR. This exploratory research will hopefully guide researchers in understanding ODR’s users and consumption.
    Data collection came from an online questionnaire sent to conflict intervention practitioners in Ireland who reported their experiences and perspectives of ODR. One hundred and twenty-four surveys were used in this analysis. These questionnaires produced both quantitative and qualitative data. Approximately 900 people were asked to complete the survey.
    The author found that surveyed participants were sceptical regarding ODR, with very few actually using online technologies to aid in resolving disputes. A popular sentiment among participating practitioners was that ODR was not better than face-to-face meetings, but that it was worth exploring further. Finally, the author found that those who had heard of ODR are more likely to believe they could assist parties in reaching a final settlement by using video technology.


Simon J. Boehme
Conflict Resolution Specialist for Martin F. Scheinman, Esq., Mitchell Scholar at Maynooth University in Ireland, Truman Scholar and Merrill Presidential Scholar at Cornell University’s ILR School in Ithaca, NY. <www.simonboehme.com>.
Article

E-Commerce, ICTs and Online Dispute Resolution: Is This the Beginning of a New Professional Profile?

Journal International Journal of Online Dispute Resolution, Issue 2 2015
Keywords Mobile phones, ADR, ODR, mediation, conflict resolution
Authors Aura Esther Vilalta and Rosa Pérez Martell
AbstractAuthor's information

    There is a close link between the growth of Internet usage, the development of mobile technology, the expansion of markets and the increasing number of online dispute resolution mechanisms (ODRs). This article seeks to start a conversation about the need to provide justice by means of effective mechanisms, in particular for e-commerce disputes and transnational litigation. It also provides some information on the recent international initiatives towards the regulation of this new arena, and concludes with an early approach to the future challenges and the impact on training, qualifications and expertise of ODR professionals and service providers.


Aura Esther Vilalta
Senior Lecturer in Civil Law at the Universitat Oberta de Catalunya (UOC), Barcelona, Spain. Fellow of the National Center of Technology and Dispute Resolution (NCTDR), University of Massachusetts – Amherst; CEO of Iusmediare, mediator and arbitrator. Vilalta has been Spanish national representative at UNCITRAL, WG III (Online Dispute Resolution) and Deputy Magistrate in the Barcelona Court of Appeals.

Rosa Pérez Martell
Senior Lecturer in Procedural Law at Las Palmas de Gran Canaria University, lecturer at the Open University of Catalonia and member of the Mediation Commission at the Gran Canaria Government.
Article

Structure of Legislation: A Paradigm for Accessibility and Effectiveness

Journal European Journal of Law Reform, Issue 3 2015
Keywords effectiveness of legislation, structure of legislation, accessibility of legislation, quality drafting, clarity
Authors Elohor Onoge
AbstractAuthor's information

    The aim of this article is to examine how the structure of legislation can nurture accessibility and effectiveness of legislation.
    It explores whether the legislative drafter in carrying out the task of drafting can nurture effective communication of the policy maker’s intent to the targeted audience by making use of the structure of legislation as a tool, to ensure the legislation is accessible to the end user, and foster effectiveness.
    The third and fourth stage of Thornton’s stages of the drafting process – design and composition – would be examined and also Peter Butt’s types of structure, which relates to the drafting of legal documents but would be applied in this paper, to the drafting of legislation.


Elohor Onoge
Elohor Onoge LLM is a Nigerian legislative drafter working for the Federal Parliament. Email: stephyrook@gmail.com.
Article

Delegated Legislation in Nigeria: The Challenges of Control

Journal European Journal of Law Reform, Issue 3 2015
Keywords delegated legislation, parliament, control, quality, parliamentary scrutiny
Authors Jemina Benson LL.M
AbstractAuthor's information

    In considering how society generally is regulated, most times focus is always on Acts of parliament that are passed by the legislative arm of government. However, delegated legislation is another aspect of law making that is of immense importance for the regulation of any given society. This form of lawmaking being a deviation from the norm has some challenges in terms of control. This article seeks to examine some of these challenges emphasising that adequate parliamentary scrutiny will prevent the harbouring of bad-quality legislation.


Jemina Benson LL.M
Jemina Benson LL.M (University of London) is a legislative drafter for Rivers State House of Assembly in Nigeria. Email: jeminabenson@yahoo.com.
Article

‘Living in Sin’: A Reform Proposal for Financial Relief Following Cohabitation Breakdown

Journal European Journal of Law Reform, Issue 4 2015
Keywords cohabitation, financial relief, family trusts, common law marriage
Authors Luke Tattersall
AbstractAuthor's information

    The number of adults choosing to cohabit has increased by over 67% since 1991. Despite such a dramatic shift in social norms, the law governing financial relief upon relationship breakdown remains inept to handle the significant increase in cohabitants. This article examines how the current system of family trusts constitutes an archaic and inadequate means of dividing cohabitants’ assets. The law of trusts fails to reflect the subtleties of personal relationships, often resulting in financial injustice. The author goes on to consider the notion of common law marriage, highlighting how despite attempts by both the government and policy makers to dispel the concept it nevertheless remains prevalent throughout the United Kingdom. The core counterargument to extending financial relief is that it would undermine the institution of marriage and obscure the boundaries between cohabitant and spouse. This article critically examines this claim, adopting cross-jurisdictional analysis by considering the experiences of Scotland, Ireland and Australia where cohabitants have greater financial rights before concluding that the argument fails to stand up to scrutiny. The author ends by advancing a series of reforms designed to vindicate cohabitants, resulting in a fairer distribution of assets and bringing legal recognition to the United Kingdom’s largest growing family unit.


Luke Tattersall
Luke Tattersall is a trainee-barrister and Research Assistant in Law at Durham University. All opinions, errors and omissions are solely those of the author.
Article

Policy Considerations for New Human Space Exploration Strategies

The Space Generation Perspective

Journal International Institute of Space Law, Issue 7 2015
Authors Chantelle Dubois, Lazlo Bacsardi, Ali Nasseri e.a.
Author's information

Chantelle Dubois
Space Generation Advisory Council, Canada

Lazlo Bacsardi
Hungary

Ali Nasseri
Canada

Michael Deiml
Germany

Alana Bartolini
Canada

Kate Howells
Canada

Jessica Todd
Australia

Kumar Abhijeet
Australia
Article

To Recognize or Not to Recognize? That Is the Question!

Motherhood in Cross-Border Surrogacy Cases

Journal European Journal of Law Reform, Issue 2 2015
Keywords cross-border surrogacy, motherhood, private international law, ordre public, European Human Right Convention
Authors Stefanie Sucker PhD
AbstractAuthor's information

    This article describes the status quo in cross-border surrogacy cases, more specifically how national courts deal with the recognition of parenthood validly established abroad. As the recognition of motherhood is deemed to violate the national ordre public, the solutions so far, i.e. recognition of fatherhood and adoption, will be examined. Moreover, the arguments for an alleged ordre public-violation concerning motherhood will be presented. Finally, the question whether the European Human Right Convention has an impact on the interpretation of the best interest of the child will be answered.


Stefanie Sucker PhD
The author is currently writing a (German) PhD on the topic of cross-border surrogacy. She analyses private international and procedural law questions of German, Dutch, French and Austrian law. Thus, reference as examples will be made to these legal systems.
Article

Child Participation in Family Law Matters Affecting Children in South Africa

Journal European Journal of Law Reform, Issue 2 2015
Keywords child participation, family law, legal representation, Family Advocate, curator ad litem
Authors LLE, LLM Kelly-Anne Cleophas and Usang Maria Assim
AbstractAuthor's information

    The right of children to participate in all matters affecting them is considered to be one of the fundamental principles guiding the understanding, interpretation, and application of all children’s rights. In terms of international law, this right is contained in Article 12 of the United Nations Convention on the Rights of the Child. Similar provisions are contained in the African Charter on the Rights and Welfare of the Child. Child participation establishes the right of every child to freely express his or her views, in all matters affecting him or her, as well as the ‘subsequent right’ for those views to be given due weight, in line with the age and maturity of the child involved. The right of the child to be heard, as expressed in the Convention on the Rights of the Child represents a shift in perspectives from children as ‘incomplete human beings’ to children as subjects of rights and not merely objects of legal protection. This article provides an overview of the manner in which the principle of child participation is incorporated in some family law matters affecting children in South Africa.


LLE, LLM Kelly-Anne Cleophas
Kelly-Anne Cleophas: LLB (UWC), LLM (Missouri), LLM cum laude (UWC).

Usang Maria Assim
Usang Maria Assim is a Post-Doctoral Research Fellow, Community Law Centre, University of the Western Cape (UWC), South Africa.
Article

Out of the Box? Domestic and Private International Law Aspects of Gender Registration

A Comparative Analysis of Germany and the Netherlands

Journal European Journal of Law Reform, Issue 2 2015
Keywords gender identity, sex registration, intersex, transgender, private international law
Authors Dr. Marjolein van den Brink, Dr. iur. Philipp Reuß and Dr. Jet Tigchelaar
AbstractAuthor's information

    The legal regulation of gender identity seems to be in a state of flux. This paper compares the German and Dutch legal systems with regard to the registration of a person’s sex, focusing on the possibility in both countries not to register a baby’s sex until it can be clearly determined. In both systems, it has thus become possible that a person has no specified gender for a considerable period of time. These persons may encounter various kinds of legal problems, since the two jurisdictions have not been adapted to accommodate them. In addition, two potential problems regarding private international law issues are discussed.


Dr. Marjolein van den Brink
Dr. Marjolein van den Brink is assistant professor at the Netherlands institute for human rights (SIM), Utrecht University. She participates in the research programme of the Utrecht centre for European research into family law.

Dr. iur. Philipp Reuß
Philipp Reuß, Dr. iur., MJur (Oxford) is research assistant at LMU Munich’s Institute of international law –comparative law.

Dr. Jet Tigchelaar
Dr. Jet Tigchelaar is assistant professor at the Institute of jurisprudence, constitutional and administrative law, Utrecht University. She participates as researcher at the Utrecht centre for European research into family law.
Article

Non-Violent Struggle

The 1992 Kenyan Case Study of the Protective Power and the Curse of Female Nakedness

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2015
Keywords non-violent struggle, dynamics of non-violent struggle, strategic planning in non-violent struggle, protective power of the vulva, curse of female nakedness
Authors Dr. Peter Karari
AbstractAuthor's information

    Non-violent struggle is a technique by which the population can restrict and sever the sources of power of their oppressors while mobilizing their own potentials into effective power. Female nakedness is one type of non-violent action that can be mobilized to facilitate women’s emancipation from gendered-cum-patriarchal oppression, violence and marginalization. A literature review indicates that female nakedness has been used for many centuries around the world to stop wars, ward off enemies, agitate for rights, prevent pests and increase harvests. Studies show that the effectiveness of non-violent struggle requires strategic planning and understanding of the dynamics involved. This article analyses the 1992 women’s nude protest in Kenya aimed at pushing for the release of political prisoners. This study investigates three questions: (1) In what ways was the 1992 women’s nude protest in Kenya a success? (2) What were the struggle’s flaws? (3) What strategic plans and/or dynamics of non-violent struggle could have been employed to make this protest more effective? The findings of this research indicate that: (1) The nude protest was partially a success because it secured the release of all political prisoners and nurtured democratization; (2) the struggle failed to embrace some strategic planning and/or the dynamics of non-violent struggle in addition to hunger strike and female nakedness; and (3) the protest could have been more successful if it embraced particular strategic plans and/or dynamics of non-violent struggle such as negotiation, power relations, prioritization of tactics and methods of non-violent struggle, access to critical material resources and clear monitoring and evaluation strategies.


Dr. Peter Karari
Dr. Peter Karari will be joining Karatina University, Kenya in September 2015 as a faculty member in the school of education and social sciences where he plans to start a department in Peace and Conflict Studies. He is a PhD graduate in peace and conflict studies from the Arthur Mauro Centre for Peace and Justice, University of Manitoba. He also has a Bachelor in Social-Work from the University of Nairobi in Kenya and a Masters in Peace and Conflicts Research from Otto-von Guericke University in Magdeburg Germany. His areas of focus includes; ethnopolitical violence, transitional justice, peacebuilding, conflict-management, conflict-resolution, conflict-transformation, and human rights. His doctoral research was on ethno-political violence, transitional justice, and peacebuilding in Kenya. He has diverse field and work experience with Non-governmental and community based organizations. He was the Country Program Manager of Drug Abuse Education Program Kenya, Project Coordinator Compassion International Kenya, and Chief Executive Officer Kibera Slum Education Program, an Oxfam GB assisted project in Kenya. Peter has served in various capacities as a student leader, community leader, and as a member of the University of Manitoba senate. He has a great passion for the marginalized and the vulnerable people in the society and has greatly been recognized for his community leadership and human rights activism. He is the winner of the 2010 Nahlah Ayed Prize for Student Leadership and Global Citizenship, University of Manitoba; 2010 Paul Fortier Award in Student Activism, University of Manitoba Faculty Association; 2011 University of Manitoba Alumni Award; 2012 University of Manitoba Dean of Graduate Studies Student Achievement Award; and 2014 University of Manitoba Emerging Leaders Award. Apart from mentoring his students to explore new perspectives and ideas that address their inquisitiveness as human beings, Dr. Karari envisions to actively participate in peacebuilding initiatives to make the world a better place for all to live in. He envisions Perpetual Peace in the World!
Article

Process Pluralism in Transitional-Restorative Justice

Lessons from Dispute Resolution for Cultural Variations in Goals beyond Rule of Law and Democracy Development (Argentina and Chile)

Journal International Journal of Conflict Engagement and Resolution, Issue 1 2015
Keywords transitional justice, conflict resolution, process pluralism, cultural variation, individual and collective justice
Authors Carrie Menkel-Meadow
AbstractAuthor's information

    This article reviews some of the key issues in transitional justice process and institutional design, based on my research and experience working and living in several post-conflict societies, and suggests that cultural and political variations in transitional justice design, practices, and processes are necessary to accomplish plural goals. The idea of process pluralism, derived from the more general fields of conflict resolution and ‘alternative dispute resolution’ in legal contexts, is an essential part of transitional justice, where multiple processes may occur simultaneously or in sequence over time (e.g. truth and reconciliation processes, with or without amnesty, prosecutions, lustration and/or more local legal and communitarian processes), depending on both individual and collective preferences and resources. Transitional justice is itself ‘in transition’ as iterative learning has developed from assessment of different processes in different contexts (post-military dictatorships, civil wars, and international and sub-national conflicts). This article draws on examples from Argentina’s and Chile’s emergence from post-military dictatorships to describe and analyze a plurality of processes, including more formal governmental processes, but also those formed by civil society groups at sub-national levels. This article suggests that ‘democracy development’ and legalistic ‘rule of law’ goals and institutional design may not necessarily be the only desiderata in transitional justice, where more than the ‘legal’ and ‘governmental’ is at stake for more peaceful human flourishing. To use an important concept from dispute resolution, the “forum must fit the fuss”, and there are many different kinds of ‘fusses’ to be dealt with in transitional justice, at different levels of society – more than legal and governmental but also social, cultural and reparative.


Carrie Menkel-Meadow
Carrie Menkel-Meadow is Chancellor’s Professor of Law and Political Science, University of California, Irvine.
Article

Creating New Pathways to Justice Using Simple Artificial Intelligence and Online Dispute Resolution

Journal International Journal of Online Dispute Resolution, Issue 1 2015
Keywords expert system, online dispute resolution, artificial intelligence, access to justice, legal information technology
Authors Darin Thompson
AbstractAuthor's information

    Access to justice in can be improved significantly through implementation of simple artificial intelligence (AI) based expert systems deployed within a broader online dispute resolution (ODR) framework.
    Simple expert systems can bridge the ‘implementation gap’ that continues to impede the adoption of AI in the justice domain. This gap can be narrowed further through the design of multi-disciplinary expert systems that address user needs through simple, non-legalistic user interfaces.
    This article provides a non-technical conceptual description of an expert system designed to enhance access to justice for non-experts. The system’s knowledge base would be populated with expert knowledge from the justice and dispute resolution domains. A conditional logic rule-based system forms the basis of the inference engine located between the knowledge base and a questionnaire-based user interface.
    The expert system’s functions include problem diagnosis, delivery of customized information, self-help support, triage and streaming into subsequent ODR processes. Its usability is optimized through the engagement of human computer interaction (HCI) and affective computing techniques that engage the social and emotional sides of technology.
    The conceptual descriptions offered in this article draw support from empirical observations of an innovative project aimed at creating an expert system for an ODR-enabled civil justice tribunal.


Darin Thompson
Legal Counsel, BC Ministry of Justice; Adjunct Law Professor, University of Victoria; Adjunct Law Professor, Osgoode Hall Law School. Email: darinmobile@gmail.com.

María-del-Carmen Muñoz-Rodríguez
Associate Professor of Public International Law and European Union Law, University of Jaén, Spain

James D. Rendleman
JD, LLM, USSTRATCOM JFCC SPACE, Vandenberg Air Force Base, California, USA, Supervising Attorney, Operations, Space and International Law, Joint Functional Component Command for Space, United States Strategic Command, Vandenberg Air Force Base, California, USA. Member, State Bar of California. Associate Fellow, American Institute of Aeronautics and Astronautics

Brian D. Green
USSTRATCOM JFCC SPACE, Vandenberg Air Force Base, California, USA Chief, Space and Operations Law, Joint Functional Component Command for Space, United States Strategic Command, Vandenberg Air Force Base, California, USA. Member, District of Columbia Bar. The
Article

The Rule of Law Reform and Judicial Education in Pakistan

Search for a Model

Journal European Journal of Law Reform, Issue 1 2015
Keywords judicial education, rule of law reform, Khyber Pakhtunkhwa, militancy, Pakistan
Authors Khurshid Iqbal
AbstractAuthor's information

    The article investigates the intrinsic and instrumental roles of judicial education in broader contours of the rule of law theory and reform practice in a developing country. It focuses on: firstly, the relationship between judicial education and the rule of law theory and reform practice; secondly, whether and how judicial education can promote the rule of law; and third, the challenges to a successful judicial education in strengthening the rule of law. Examining Pakistan as a case study, the article explores challenges to judicial education in Pakistan and critically assesses Pakistan’s rule of law reform efforts to overcome those challenges. Evidence shows that key challenges to judicial education in Pakistan are lack of a national judicial educational vision and a well thought out policy, coordinated efforts to training needs assessment, curriculum and faculty, research and learning best practices, as means of development and innovation. Of special concern is the role of judicial education in promoting the rule of law to address security issues embedded in (bad) governance. The article finds that in view of its initial limited success, the judicial academy of Pakistan’s terrorism-hit Khyber Pakhtunkhwa (KP) province may play a role model to improve judicial services and thereby help promote the rule of law in a post-conflict society.


Khurshid Iqbal
PhD (Ulster, UK), LLM (Hull, UK), MA Political Science & LLB (Peshawar, Pakistan); Dean of Faculty, the Khyber Pakhtunkhwa Judicial Academy (KPJA); District & Sessions Judge; Adjunct Faculty Member Department of Law, the International Islamic University, Islamabad.
Article

Extra-Marital Children and Their Right to Inherit from Their Fathers in Botswana

A Critical Appraisal

Journal European Journal of Law Reform, Issue 1 2015
Keywords extra-marital children, inheritance, fathers, Botswana, human rights
Authors Obonye Jonas
AbstractAuthor's information

    Despite the fact that in recent years a number of states have extended to non-marital children many of the legal rights previously exclusively granted to legitimate children, Botswana still denies non-marital children a wide constellation of their basic rights. One such area where the rights of non-marital children are violated in Botswana is inheritance. In terms of the law of succession of Botswana, extra-marital children have no real legal rights to inherit from and through their father, both at customary law and Common Law. This article discusses and analyses the rule that excludes non-marital children from inheriting from and through their fathers under the two systems of laws. Its central claim is that this rule is antithetical to extra-marital children’s rights to equality, non-discrimination, and dignity. The article argues that the rule is devoid of social currency, has no place in a democratic society, and must be abolished.


Obonye Jonas
LL.B (UB), LL.M (Pretoria), Senior Lecturer, Law Department, University of Botswana & Practising Attorney with Jonas Attorneys. E-mail: jonas15098@yahoo.co.uk or obonye.jonas@mopipi.ub.bw.
Article

Un-Constitutionality of the Dodd-Frank Act

Journal European Journal of Law Reform, Issue 1 2015
Keywords Dodd-Frank Act, enforcement games, systemic risk, financial services regulation, constitutional law
Authors Michael I.C. Nwogugu
AbstractAuthor's information

    ‘Restoring American Financial Stability Act’ of 2010 (‘RAFSA’ or the ‘Dodd-Frank Act’) was the first set of statutes in any country that attempted to simultaneously address the Global Financial Crisis, the national securities law framework, the structure of the executive branch of the federal government, and delegation of powers to federal government agencies (to the detriment of state governments). Other countries have enacted statutes that are similar to RAFSA. However, RAFSA and similar statutes in many countries are inefficient and have failed to address the fundamental problems in financial systems, and parts of RAFSA are unconstitutional.


Michael I.C. Nwogugu
Address: Enugu, Enugu State, Nigeria. E-mail: mcn2225@gmail.com; mcn2225@aol.com. Phone: 234-909-606-8162.

Steven Freeland
Western Sydney University, Australia

Ram S. Jakhu
Institute of Air and Space Law, McGill University, Canada
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