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Year 2016 x
Editorial

Access_open Legal Control on Social Control of Sex Offenders in the Community: A European Comparative and Human Rights Perspective

Journal Erasmus Law Review, Issue 2 2016
Keywords social control, folk devils, moral panic, dangerousness, sex offenders
Authors Michiel van der Wolf (Issue Editor)
AbstractAuthor's information

    This paper provides first of all the introduction to this special issue on ‘Legal constraints on the indeterminate control of “dangerous” sex offenders in the community: A European comparative and human rights perspective’. The issue is the outcome of a study that aims at finding the way legal control can not only be an instrument but also be a controller of social control. It is explained what social control is and how the concept of moral panic plays a part in the fact that sex offenders seem to be the folk devils of our time and subsequently pre-eminently the target group of social control at its strongest. Further elaboration of the methodology reveals why focussing on post-sentence (indeterminate) supervision is relevant, as there are hardly any legal constraints in place in comparison with measures of preventive detention. Therefore, a comparative approach within Europe is taken on the basis of country reports from England and Wales, France, Germany, The Netherlands and Spain. In the second part of the paper, the comparative analysis is presented. Similar shifts in attitudes towards sex offenders have led to legislation concerning frameworks of supervision in all countries but in different ways. Legal constraints on these frameworks are searched for in legal (sentencing) theory, the principles of proportionality and least intrusive means, and human rights, mainly as provided in the European Convention on Human Rights to which all the studied countries are subject. Finally, it is discussed what legal constraints on the control of sex offenders in the community are (to be) in place in European jurisdictions, based on the analysis of commonalities and differences found in the comparison.


Michiel van der Wolf (Issue Editor)
Ph.D., LL.M, M.Sc., Reader in Criminal Law (Theory) and Forensic Psychiatry at the Erasmus School of Law; Member of the Editorial Board of the Erasmus Law Review.
Article

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

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

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


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

Responses to Climate Change in Bangladesh

An Appraisal

Journal European Journal of Law Reform, Issue 2 2016
Keywords climate change, adaptation, Bangladesh, impacts, vulnerability
Authors Nour Mohammad
AbstractAuthor's information

    Climate change is a global problem. The impacts of climate change are worldwide. It’s not only detrimental for developing countries but also harmful for developed countries. Bangladesh is recognized as one of the countries most vulnerable to and affected by the impacts of climate change and global warming. This is due to its geographical location, geo-morphological conditions, low elevation from the sea, density of population, poverty, and remarkable dependence on nature, as well as its resources and services. As a developing country, Bangladesh is least responsible for the GHGs emission and an innocent victim of adverse impacts of climate change. This article explores the situation of climate change, its various causes and the impacts faced by the developing countries, in particular Bangladesh. The author aims to highlight how to reduce the causes of climate change for developing countries and the obligations of developed countries to combat the climate change under the existing international legal framework.


Nour Mohammad
Assistant Professor of Law, Premier University, Chittagong, Bangladesh.
Article

Comparative Legislative Drafting

Comparing across Legal Systems

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

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


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

Enforcement of Judgments in SEE, CIS, Georgia and Mongolia

Challenges and Solutions

Journal European Journal of Law Reform, Issue 2 2016
Keywords enforcement, bailiffs, judgments, CIS, SEE
Authors Kim O’Sullivan and Veronica Bradautanu
AbstractAuthor's information

    The article considers the results of the Assessment of enforcement systems for commercial cases, carried out by the European Bank for Reconstruction and Development (EBRD) in 2013-2014. In phase I the Assessment looked at the systems in thirteen countries, namely Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyz Republic, Moldova, Mongolia, Russia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan (“CIS+ region”); and in phase II another eight countries were reviewed: Albania, Bosnia and Herzegovina, Croatia, FYR Macedonia, Kosovo, Montenegro, Serbia and Slovenia (“SEE region”).
    On the basis of the information gathered during the Assessment, the article compares the three forms of enforcement systems and their manifestation in the assessed regions: public (state), private and mixed (hybrid) systems. Using examples from the reviewed jurisdictions, the article discusses the benefits and downsides of each form. There is no preferred form; however, each may borrow elements from the other to result in a stronger system.
    The Assessment attempted to provide a comprehensive overview of the enforcement frameworks and practices and to pinpoint areas that might need reform and attention in order to improve the quality of the service. It looked at the following elements of enforcement: resources and framework, supervision and integrity issues, searching for assets, seizure of assets, sale of assets, speed of enforcement, cost and fees.
    The article discusses in detail the two areas of enforcement that emerged from the Assessment as most challenging: searching for debtors’ assets and sale of seized assets. Facilitated access to registers, wider use of electronic means of communications and clear process are identified among the contributors to better practice in searching for assets. Similarly, use of electronic platforms, establishing a fair price, ensuring sufficient flexibility in methods and process of sale would help improve the outcome of enforcement.
    The article further analyses another two components often overlooked by the regulatory bodies and policymakers, which permeate the enforcement system, significantly influencing the enforcement process. This refers to gathering of statistical data about the results of enforcement and its effective use; as well as efficient supervisory system over enforcement agents. The article argues that gathering data about, for example, enforcement timeline and percentage of recovered claims, and publicizing such data shall contribute to improved results. Furthermore, having an adequate complaints system will help build trust in the enforcement profession.


Kim O’Sullivan
Kim O’Sullivan is a Principal Counsel at EBRD.

Veronica Bradautanu
Veronica Bradautanu is a Consultant to the EBRD.

    The Austrian Supreme Court has ruled that the general prohibition of Muslim face veils by an employer does not constitute unlawful discrimination. In this landmark decision, Austria’s Supreme Court expresses the view that an uncovered face is a prerequisite to proper communication. Thus, termination of employment by reason of an employee’s refusal to come to work unless she can wear a face veil is not unlawful under the Austrian Equal Treatment Act. Whether this rule also applies to other religious clothing such as headscarves remains to be seen.


Hans Georg Laimer
Hans Georg Laimer is a partner at zeiler.partners Rechtsanwälte GmbH.

Lukas Wieser
Lukas Wieser is an attorney at law at zeiler.partners Rechtsanwälte GmbH.
Article

Access_open Exit, Voice and Loyalty from the Perspective of Hedge Funds Activism in Corporate Governance

Journal Erasmus Law Review, Issue 4 2016
Keywords Uncertainty, entrepreneurship, agency costs, loyalty shares, institutional investors
Authors Alessio M. Pacces
AbstractAuthor's information

    This article discusses hedge funds activism based on Hirschman’s classic. It is argued that hedge funds do not create the loyalty concerns underlying the usual short-termism critique of their activism, because the arbiters of such activism are typically indexed funds, which cannot choose short-term exit. Nevertheless, the voice activated by hedge funds can be excessive for a particular company. Furthermore, this article claims that the short-termism debate cannot shed light on the desirability of hedge funds activism. Neither theory nor empirical evidence can tell whether hedge funds activism leads to short-termism or long-termism. The real issue with activism is a conflict of entrepreneurship, namely a conflict between the opposing views of the activists and the incumbent management regarding in how long an individual company should be profitable. Leaving the choice between these views to institutional investors is not efficient for every company at every point in time. Consequently, this article argues that regulation should enable individual companies to choose whether to curb hedge funds activism depending on what is efficient for them. The recent European experience reveals that loyalty shares enable such choice, even in the midstream, operating as dual-class shares in disguise. However, loyalty shares can often be introduced without institutional investors’ consent. This outcome could be improved by allowing dual-class recapitalisations, instead of loyalty shares, but only with a majority of minority vote. This solution would screen for the companies for which temporarily curbing activism is efficient, and induce these companies to negotiate sunset clauses with institutional investors.


Alessio M. Pacces
Professor of Law & Finance, Erasmus School of Law, and Research Associate, European Corporate Governance Institute.
Article

Access_open The Categorisation of Tax Jurisdictions in Comparative Tax Law Research

Journal Erasmus Law Review, Issue 4 2016
Keywords Classification of jurisdictions, international comparative tax law, tax law methodology
Authors Renate Buijze
AbstractAuthor's information

    The number of comparative tax law studies is substantial. The available literature on the methodology behind these tax comparisons, however, is rather limited and underdeveloped. This article aims to contribute to the theoretical background of tax comparisons by explicating methodological considerations in a comparative tax research on tax incentives for cross-border donations and relating it to the available methodological literature. Two aspects of tax law make comparative research in tax law a challenging endeavour: its complexity and fast-changing nature. To overcome these issues, this article proposes to divide jurisdictions into a limited number of categories. In this process the different legal levels are analysed systematically, resulting in categories of jurisdictions. Among the jurisdictions in one category, common characteristics are identified. This results in an abstract description of the category. I use the term ‘ideal types’ for these categories. The high level of abstraction in the use of ideal types allows for comparison of tax jurisdictions, without the risk that the comparison gets outdated. An additional advantage of working with ideal types is that the conclusions of the comparison can be applied to all jurisdictions that fit in the ideal type. This increases the generalisability of the conclusions of the comparative tax research.


Renate Buijze
PhD candidate at the Erasmus University Rotterdam. Email: buijze@law.eur.nl.
Article

Access_open Keck in Capital? Redefining ‘Restrictions’ in the ‘Golden Shares’ Case Law

Journal Erasmus Law Review, Issue 4 2016
Keywords Keck, selling arrangements, market access, golden shares, capital
Authors Ilektra Antonaki
AbstractAuthor's information

    The evolution of the case law in the field of free movement of goods has been marked by consecutive changes in the legal tests applied by the Court of Justice of the European Union for the determination of the existence of a trade restriction. Starting with the broad Dassonville and Cassis de Dijon definition of MEEQR (measures having equivalent effect to a quantitative restriction), the Court subsequently introduced the Keck-concept of ‘selling arrangements’, which allowed for more regulatory autonomy of the Member States, but proved insufficient to capture disguised trade restrictions. Ultimately, a refined ‘market access’ test was adopted, qualified by the requirement of a ‘substantial’ hindrance on inter-State trade. Contrary to the free movement of goods, the free movement of capital has not undergone the same evolutionary process. Focusing on the ‘golden shares’ case law, this article questions the broad interpretation of ‘capital restrictions’ and seeks to investigate whether the underlying rationale of striking down any special right that could have a potential deterrent effect on inter-State investment is compatible with the constitutional foundations of negative integration. So far the Court seems to promote a company law regime that endorses shareholders’ primacy, lacking, however, the constitutional and institutional legitimacy to decide on such a highly political question. It is thus suggested that a refined test should be adopted that would capture measures departing from ordinary company law and hindering market access of foreign investors, while at the same time allowing Member States to determine their corporate governance systems.


Ilektra Antonaki
Ilektra Antonaki, LL.M., is a PhD candidate at Leiden University, The Netherlands.
Article

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

Case Study – Italy

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

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


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

Access_open Do We Want 'More or Fewer' Prosecutions of Opinions? The Geert Wilders Trial 2.0

Journal Netherlands Journal of Legal Philosophy, Issue 2 2016
Keywords Geert Wilders, hate speech, freedom of opinion, District Court of The Hague, conviction
Authors Jogchum Vrielink
Author's information

Jogchum Vrielink
Jogchum Vrielink is a guest professor at the Centre interdisciplinaire de recherche en droit constitutionnel, Université Saint-Louis (Brussels) and at the Faculty of Canon Law, University of Leuven.
Article

Access_open The Erosion of Sovereignty

Journal Netherlands Journal of Legal Philosophy, Issue 2 2016
Keywords sovereignty, state, Léon Duguit, European Union, Eurozone
Authors Martin Loughlin
AbstractAuthor's information

    This article presents an account of sovereignty as a concept that signifies in jural terms the nature and quality of political relations within the modern state. It argues, first, that sovereignty is a politico-legal concept that expresses the autonomous nature of the state’s political power and its specific mode of operation in the form of law and, secondly, that many political scientists and lawyers present a skewed account by confusing sovereignty with governmental competence. After clarifying its meaning, the significance of contemporary governmental change is explained as one that, in certain respects, involves an erosion of sovereignty.


Martin Loughlin
Martin Loughlin is Professor of Public Law at the London School of Economics and Political Science and EURIAS Senior Fellow at the Freiburg Institute of Advanced Studies (FRIAS).
Article

Access_open E pluribus unum? The Manifold Meanings of Sovereignty

Journal Netherlands Journal of Legal Philosophy, Issue 2 2016
Keywords political sovereignty, power, legislative sovereignty, constitutive power, external sovereignty
Authors Raf Geenens
AbstractAuthor's information

    This article investigates and classifies the different meanings of the term sovereignty. What exactly do we try to convey when using the words “sovereign” or “sovereignty”? I will argue that, when saying that X is sovereign, we can mean five different things: it can mean that X holds the capacity to force everyone into obedience, that X makes the laws, that the legal and political order is created by X, that X holds the competence to alter the basic norms of our legal and political order, or that X is independently active on the international stage. These different usages of the term are of course related, but they are distinct and cannot be fully reduced to one another.


Raf Geenens
Raf Geenens is an assistant professor of Ethics and Legal Philosophy at the Institute of Philosophy, University of Leuven.
Article

The New Handshake: Where We Are Now

Journal International Journal of Online Dispute Resolution, Issue 2 2016
Keywords consumers, consumer protection, online dispute resolution (ODR), remedies, e-commerce
Authors Amy J. Schmitz and Colin Rule
AbstractAuthor's information

    The internet has empowered consumers in new and exciting ways. It has opened more efficient avenues for consumers to buy just about anything. Want proof? Just pull out your smartphone, swipe your finger across the screen a few times, and presto – your collector’s edition Notorious RBG bobblehead is on its way from China. Unfortunately, however, the internet has not yet delivered on its promise to improve consumer protection.


Amy J. Schmitz
Amy J. Schmitz is the Elwood L. Thomas Missouri Endowed Professor at the University of Missouri School of Law and Center for the Study of Dispute Resolution, and the founder of MyConsumertips.info.

Colin Rule
Colin Rule is co-founder and Chairman of Modria.com and the former Director of Online Dispute Resolution for eBay and PayPal.
Article

A More Forceful Collective Redress Schemes in the EU Competition Law

What Is the Potential for Achieving Full Compensation?

Journal European Journal of Law Reform, Issue 4 2016
Keywords full compensation, private enforcement, damages actions, collective actions, deterrence
Authors Žygimantas Juška
AbstractAuthor's information

    The damages actions reform of the European Union is predetermined to fail in achieving its stated goal of full compensation. There are two main reasons for this. First, the Directive on damages actions fails to maintain a balance between the claims of direct and indirect purchasers. Second, the EU policy is not designed to collect a large group of antitrust victims, who have suffered only a low-value harm (e.g., end consumers). The only way to achieve compensation effectiveness is to overstep the bounds of the EU compensatory regime, which is trapped in the grip of conservatism. In such circumstances, this article will explore three forceful scenarios of collective redress that include different types of deterrence-based remedies. The principal aim is to assess the chances of these scenarios in achieving full compensation. After assessing them, the best possible mechanism for compensating victims will be designed. In turn, it will allow the evaluation of to what extent such a scheme can ensure the achievement of full compensation.


Žygimantas Juška
PhD candidate at Leiden University. The author was the EU Fulbright Schuman grantee at Stanford University and the University of Michigan (2015-2016). Hence, this article is based on the study performed in the United States.

James Davies
James Davies is Joint Head of Employment team at Lewis Silkin LLP in London, www.lewissilkin.com.
Case Reports

2016/45 Supreme Court rules on social security legislation applicable to temps posted abroad (PL)

Journal European Employment Law Cases, Issue 3 2016
Keywords Free movement, social security and temporary agency workers
Authors Marcin Wujczyk PhD
AbstractAuthor's information

    Temporary agency workers employed by a Polish agency and posted temporarily to France to work there under the direction of a French client are entitled to A1 certificates and, therefore, to remain governed by exclusively Polish social security legislation while working in France.


Marcin Wujczyk PhD
Marcin Wujczyk, PhD., is a partner with Ksiazek Bigaj Wujczyk in Krakow, www.ksiazeklegal.pl.
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