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Article

Access_open Reply

Journal Netherlands Journal of Legal Philosophy, Issue 3 2014
Keywords Fuller, Arendt, normativism, methodology, the rule of law
Authors Kristen Rundle
AbstractAuthor's information

    Author’s reply to four commentaries on ‘Legal Subjects and Juridical Persons: Developing Public Legal Theory through Fuller and Arendt.’


Kristen Rundle
Kristen Rundle is Senior Lecturer of Law at the University of New South Wales; k.rundle@unsw.edu.au
Article

Addressing the Pension Challenge: Can the EU Respond?

Towards Facilitating the Portability of Supplementary (Occupational) Pension Rights

Journal European Journal of Law Reform, Issue 4 2014
Keywords Economic crisis, social protection, pension provision, occupational pensions, cross-border portability of pension rights
Authors Konstantina Kalogeropoulou
AbstractAuthor's information

    The European economic crisis has underlined the challenges that Member States of the European Union face towards ensuring adequate social protection provision for their citizens. The effects of the crisis have and can further impact on the capacity of pension schemes, both state provided and privately managed, that constitute a significant aspect of social protection, to deliver pension promises. This paper highlights the current situation that the common pension challenges pose for Member States and focuses on a particular issue around occupational pension provision, which has been on the European Commission’s agenda for a long time, and on which limited progress had been made. This is the issue of cross-border portability of supplementary pension rights. It is argued that current circumstances facilitate EU action to be taken in this area. In the first section, the paper identifies the main challenges around pension provision stemming from demographic ageing and the effects of the economic crisis. Section two provides a brief overview of the Commission’s holistic approach envisaged in its 2012 White Paper on safe, adequate, and sustainable pensions. Section three provides an overview of the issue of the portability of supplementary pension rights for EU workers. Section four outlines previous attempts and recent developments towards the adoption of legislative measures to promote the portability of such pension entitlements. The paper concludes by arguing that the renewed focus on pensions, in the context of current challenges and the need to enhance workers’ mobility and to provide adequate social protection, have paved the way towards the adoption of measures in this area.


Konstantina Kalogeropoulou
Senior Lecturer in Law, Kingston University. I would like to thank Dr Ioannis Glinavos for the invitation to participate in this special issue.
Article

Collective Action Clauses in the Eurozone

One Step Forward, Two Steps Back

Journal European Journal of Law Reform, Issue 4 2014
Keywords collective action clauses (CACs), sovereign debt restructuring, Eurozone, European Stability Mechanism
Authors Giuseppe Bianco
AbstractAuthor's information

    Amongst the measures taken inside the European Union to tackle the sovereign debt crisis, the focus of the legal scholarship has been mainly on the financial stability mechanisms and the European Central Bank’s action. These initiatives constitute the liquidity assistance part of the response. Arguably, less attention has been devoted to the initiatives intended to face issues of debt sustainability. As regards the course of action to adopt in case a country cannot repay its debt, the European Union opted for collective action clauses (CACs). This paper takes a critical look at the Eurozone CACs. It aims to answer the following research question: Are the adopted CACs an efficient means to achieve their purported objective (i.e. facilitate renegotiations of sovereign bonds between creditors and the sovereign debtor)? To do so, the paper investigates the CACs’ content and their historical bases. It then compares the final version with the initial draft and points to several interesting findings. The paper argues that it is likely that practical results from the use of CACs will be significantly below political leaders’ expectations.


Giuseppe Bianco
PhD Fellow, University of Oslo – Université Paris 1 Panthéon-Sorbonne. He can be reached at giuseppe.bianco@jus.uio.no. The author wishes to thank Régis Bismuth, Annamaria Viterbo, and Michael Waibel. Any errors and omissions are the sole responsibility of the author.
Article

Beyond Financialisation?

Transformative Strategies for More Sustainable Financial Markets in the European Union

Journal European Journal of Law Reform, Issue 4 2014
Keywords financialisation, financial market integration, financial reform, financial innovation, financial crisis
Authors Dieter Pesendorfer
AbstractAuthor's information

    The global financial crisis has led many regulators and lawmakers to a rethinking about current versus optimum financial market structures and activities that include a variety and even radical ideas about deleveraging and downsizing finance. This paper focuses on the flaws and shortcomings of regulatory reforms of finance and on the necessity of and scope for more radical transformative strategies. With ‘crisis economics’ back, the most developed countries, including the EU member states, are still on the edge of disaster and confronted with systemic risk. Changes in financial regulation adopted in the aftermath of the financial meltdown have not been radical enough to transform the overall system of finance-driven capitalism towards a more sustainable system with a more embedded finance. The paper discusses financialisation in order to understand the development trends in finance over the past decades and examines various theories to describe the typical trends and patterns in financial regulation. By focusing on a limited number of regulatory reforms in the European Union, the limitations of current reforms and the need for additional transformative strategies necessary to overcome the finance-driven accumulation regime are explored. Finally, the regulatory space for such transformative strategies and for taming finance in times of crisis, austerity, and increased public protest potential is analysed.


Dieter Pesendorfer
Queen’s University Belfast, School of Law, d.pesendorfer@qub.ac.uk.
Article

A Crisis Beyond Law, or a Crisis of Law?

Reflections on the European Economic Crisis

Journal European Journal of Law Reform, Issue 4 2014
Keywords Eurozone, economic crisis, Greece, debt, Grexit
Authors Ioannis Glinavos
AbstractAuthor's information

    This paper attempts to locate the place of law in debates on the economic crisis. It suggests that law is the meeting point of politics and economics, not simply the background to market operations. It is suggested therefore that the law should be seen as the conduit of the popular will through political decision making onto economic systems and processes. The paper argues that the crisis can be seen as being the consequence of the dis-embedding of the political from the economic, and it is this distance that causes legal frameworks to operate in unsatisfactory ways. With this theoretical basis, the paper examines the sovereign debt crisis in Europe. The European debt crisis in general and the plight of Greece in particular show why plasticity in policy making is necessary and also reveal why current orthodox solutions to economic calamities fail. The inflexibility of the neoclassical understanding of the state-market relationship does not allow for avenues out of crisis that are both theoretically coherent and politically welcome. Such realisations form the basis of the examination of the rules framing the Eurozone. This paper, after conducting an investigation of exit points from the Eurozone, condemns the current institutional framework of the EU, and especially the EMU as inflexible and inadequate to deal with the stress being placed on Europe by the crisis.


Ioannis Glinavos
Dr Ioannis Glinavos is Senior Lecturer in Law at the University of Westminster, i.glinavos@westminster.ac.uk.
Article

EU Corporate Governance

The Ongoing Challenges of the ‘Institutional Investor Activism’ Conundrum

Journal European Journal of Law Reform, Issue 4 2014
Keywords EU corporate governance, institutional investors, stewardship, shareholders, asset managers
Authors Konstantinos Sergakis
AbstractAuthor's information

    Institutional investor activism seems to be the ultimate means for steady improvement in corporate governance standards, as well as a powerful tool for refocusing short-term strategies towards more sustainable and viable business projects. Although EU institutions have endeavoured over the past decade to facilitate the exercise of a wide range of shareholder rights, the impact of such regulatory initiatives remains to be seen. This paper challenges the current EU regulatory approach by supporting the idea that, while it has touched upon important topics, such as companies or financial intermediaries, hoping that the investor community will make full use of its discretion and evaluation of these actors, it has avoided resolving another crucial issue, namely, that of investor behaviour. In fact, institutional investors have been partially accused of apathy and contributing indirectly to the EU capital markets crisis. EU law thus needs to find new ways to nurture and maintain an effective willingness to engage in long-term dialogue with companies. It is therefore crucial to reassess all EU initiatives and critically challenge their efficiency in order to propose a way forward to unblock institutional investor activism and establish a veritable alignment of objectives with corporate managers.


Konstantinos Sergakis
Lecturer in Law, University of Bristol. The author is very grateful to Professor Charlotte Villiers for her valuable comments at the early stages of this article. The usual disclaimer applies.
Article

Social Impact and Technology: Issues of Access, Inequality and Disputing in the Collaborative Economy

An Interview with Mitch Kapor

Journal International Journal of Online Dispute Resolution, Issue 2 2014
Keywords online dispute resolution, access, inequality, dispute systems design, collaborative economy
Authors Leah Wing
AbstractAuthor's information

    This article explores the value of focusing on the social impact of technology in business and in furthering the integration of online dispute resolution into the collaborative economy. The keynote presentation at ODR2014 by technology industry leader and entrepreneur Mitch Kapor serves as the cornerstone of this discussion. Speaking to an audience from the dispute resolution, legal, technological and financial communities, Kapor discusses the potential of businesses to increase their positive social impact, particularly with regard to access to equality, mutual gains and dispute prevention within the sharing economy. The examples from innovative tech companies illustrate the important role that information management, systems design and impact-savvy business practices play in this endeavour. Building on the keynote, the article suggests how the exploration of questions of social impact and inclusion and the application of related principles can lead to a deeper integration of ODR systems into the collaborative economy and more effective ODR dispute systems design.


Leah Wing
Leah Wing is Co-Director, National Center for Technology and Dispute Resolution, and Senior Lecturer, Legal Studies Program, Department of Political Science, University of Massachusetts at Amherst (USA).
Article

Access_open Juveniles’ Right to Counsel during Police Interrogations: An Interdisciplinary Analysis of a Youth-Specific Approach, with a Particular Focus on the Netherlands

Journal Erasmus Law Review, Issue 4 2014
Keywords legal representation, counsel, juvenile justice, police interrogations, children’s rights
Authors Prof. Dr. Ton Liefaard Ph.D. LL.M and Yannick van den Brink
AbstractAuthor's information

    The right to counsel of juveniles at the stage of police interrogations has gained significant attention since the Salduz ruling of the European Court on Human Rights in 2008. The legislative and policy developments that have taken place since then and that are still ongoing – both on a regional (European) and domestic (Dutch) level – reveal a shared belief that juvenile suspects must be awarded special protection in this phase of the criminal justice proceedings. This calls for a youth-specific approach as fundamentally different from the common approach for adults. At the same time, there seems to be ambivalence concerning the justification and concrete implications of such a youth-specific approach. This article aims to clarify the underlying rationale and significance of a youth specific approach to the right to counsel at the stage of police interrogations on the basis of an interdisciplinary analysis of European Court on Human Rights case law, international children’s rights standards and relevant developmental psychological insights. In addition, this article aims to position this right of juveniles in conflict with the law in the particular context of the Dutch juvenile justice system and provide concrete recommendations to the Dutch legislator.


Prof. Dr. Ton Liefaard Ph.D. LL.M
Prof. Dr. T. Liefaard is Professor of Children’s Rights (UNICEF Chair) at Leiden Law School, Department of Child Law; t.liefaard@law.leidenuniv.nl.

Yannick van den Brink
Y.N. van den Brink, LL.M, MA, is PhD researcher at Leiden Law School, Department of Child Law; y.n.van.den.brink@law.leidenuniv.nl.
Article

Access_open Transnationalization of Agricultural Cooperatives in Europe

Journal The Dovenschmidt Quarterly, Issue 4 2014
Keywords agriculture, agrifood, cooperatives, internationalization, transnationalization
Authors Jos Bijman, Perttu Pyykkönen and Petri Ollila
AbstractAuthor's information

    Agricultural cooperatives in Europe are increasingly expanding beyond their home countries. A number of these cooperatives have become transnational cooperatives, which means that they have members in more than one country. Examples can be found particularly in the dairy and fruit and vegetables industry. This article presents an overview of the recent internationalization and transnationalization processes among agricultural cooperatives in Europe and is the first academic publication that provides empirical data on cross-border membership. The article discusses the pros and cons of having members in several countries, as well as the different trajectories along which cooperatives may become transnational. Transnationalization entails substantial challenges for the member-cooperative relationship due to differences in culture, language, legislation and business practices. The professional management usually prefers an internationalization strategy above a transnationalization strategy. While further internationalization of agricultural cooperatives is expected, foreign membership will continue to be a major challenge for boards of directors.


Jos Bijman
Dr. Jos Bijman, Management Studies Group, Wageningen University.

Perttu Pyykkönen
Dr. Perttu Pyykkönen, Pellervo Economic Research PTT, Helsinki.

Petri Ollila
Dr. Petri Ollila, Department of Economics and Management, University of Helsinki.
Article

Access_open How to Regulate Cooperatives in the EU?

A Theory of Path Dependency

Journal The Dovenschmidt Quarterly, Issue 4 2014
Keywords cooperative law, company law, EU harmonization, business form, governance
Authors Ger J.H. van der Sangen
AbstractAuthor's information

    In this article, the phenomenon of path dependency has been addressed in view of the harmonization of cooperative law in the EU. The question is raised whether and how the legislative harmonization has an impact on co-operators in their efforts of setting up and maintaining efficient cooperative organizations and whether in this respect the Statute for the European Cooperative Society (hereinafter: SCE) is a helpful tool to facilitate the enhancement of national statutes on cooperatives as well as to provide the legal infrastructure to facilitate cross-border cooperation amongst and reorganizations of cooperatives in the EU.
    The case for the cooperative as a viable business form gained momentum in the EU policy debate with the development of the SCE Statute in 2003, the outbreak of the financial and economic crisis in 2008 and with the endorsement of the cooperative business concept by the United Nations and the International Labour Organization in 2012. If the sound development of cooperatives as an alternative legal business form vis-à-vis investor-owned firms is considered a policy instrument to enhance societal business activities – notably in the field of agriculture and social economy – it raises the question how cooperatives should be regulated to fulfil their function in this respect.
    The key argument presented in this article is that due to strong tendencies of path dependency a top-down approach of EU law-making was and is not a feasible option. The cooperative as a multifaceted institution requires a multifaceted approach taking into account the historical legislative developments of distinctive jurisdictions as well as the historical economic development of cooperative organizations in their specific jurisdiction. However, the existence of path dependency and the lack of regulatory arbitrage as well as regulatory competition prevent the market from generating efficient model statutes for cooperatives taking into account the specific needs of cooperatives and their co-operators.


Ger J.H. van der Sangen
Dr Ger J.H. van der Sangen is Associate Professor Company Law and Securities Law at Tilburg Law School, Department Business Law. He was part of the research team of the EU-funded project Support for Farmers’ Cooperatives. He would like to express his gratitude to all the members of the research team for sharing their insights and discussions during conference meetings in Brussels (November 2011 and 2012) and in Helsinki (June 2012), in particular J. Bijman, C. Gijselinckx, G. Hendrikse, C. Iliopoulos and K. Poppe.
Article

Access_open Faith and Scepticism in Private International Law: Trust, Governance, Politics, and Foreign Judgments

Journal Erasmus Law Review, Issue 3 2014
Keywords private international law, conflict of laws, foreign judgments, European Union, United States
Authors Christopher Whytock M.S., Ph.D., J.D.
AbstractAuthor's information

    In both the European Union (EU) and the United States (US), the law governing the enforcement of foreign judgments is evolving, but in different directions. EU law, especially after the elimination of exequatur by the 2012 ’Recast’ of the Brussels I Regulation, increasingly facilitates enforcement in member states of judgments of other member states’ courts, reflecting growing faith in a multilateral private international law approach to foreign judgments. In US law, on the other hand, increasingly widespread adoption of state legislation based on the 2005 Uniform Foreign-Country Money Judgments Recognition Act (2005 Act), which adds new case-specific grounds for refusing enforcement, suggests growing scepticism. In this essay, I explore possible reasons for these diverging trends. I begin with the most obvious explanation: the Brussels framework governs the effect of internal EU member state judgments within the EU, whereas the 2005 Act governs the effect of external foreign country judgments within the US. One would expect more mutual trust – and thus more faith in foreign judgment enforcement – internally than externally. But I argue that this mutual trust explanation is only partially satisfactory. I therefore sketch out two other possible explanations. One is that the different trends in EU and US law are a result of an emphasis on ’governance values’ in EU law and an emphasis on ’rights values’ in US law. Another explanation – and perhaps the most fundamental one – is that these trends are ultimately traceable to politics.


Christopher Whytock M.S., Ph.D., J.D.
Christopher Whytock is Professor of Law and Political Science at the University of California, Irvine School of Law.
Article

Access_open Global Citizens and Family Relations

Journal Erasmus Law Review, Issue 3 2014
Keywords global governance, family relations, nationality, habitual residence, party autonomy
Authors Professor Yuko Nishitani Ph.D.
AbstractAuthor's information

    As globalisation progresses, cross-border movements of people are becoming dynamic and multilateral. The existence of different groups and minorities within the community renders the society multiethnic and multicultural. As individuals acquire new affiliation and belonging, the conventional conflict of laws methods may no longer be viable and should be subject to a thorough re-examination. Against this background, this paper analyses appropriate conflicts rules in international family relations to reflect an individual’s identity. Furthermore, in light of the contemporary law fragmentation, this study also analyses interactions between state law and non-state cultural, religious or customary norms.


Professor Yuko Nishitani Ph.D.
Professor at Kyushu University Faculty of Law, Japan. This work was supported by the JSPS Grants-in-Aid for Scientific Research (C) (Grant Number 26380063). The author sincerely thanks Professor Carol Lawson (Nagoya University) and Ms. Nettie Dekker for their devoted editing work.
Article

Responsibility and Peace Activism: Lessons from the Balkans

Journal International Journal of Conflict Engagement and Resolution, Issue 2 2014
Keywords Responsibility, peace activism, non-violence, conflict, dynamical systems, Balkans, Levinas
Authors Borislava Manojlovic
AbstractAuthor's information

    Background: The notion of responsibility for peace in this article is examined through the analysis of stories told by seven peace activists that have chosen to promote peace in the midst of the violent 1990s conflicts in the Balkans by resisting or rejecting violence. Purpose: This study aims to explore what it means to perform responsible action (i.e. why certain individuals choose peace in the midst of conflict, despite danger and risk for themselves), and what makes their peace activities successful. Methodology: The research is based on seven in-depth semi-structured interviews. By means of dynamical systems theory and Levinas’ concept of responsibility, this study traces the positive attractor dynamics within individual narratives of these peace activists, which includes actions or thinking that produce peaceful outcomes in conflict systems. Findings: The findings suggest that inquiry and openness towards the Other rooted in care and responsibility can serve as a positive attractor in a conflict system. Successful peace activities are enabled through learning from past mistakes and creation of inclusive and diverse spaces for interaction in which historical narratives can be expanded and non-violent strategies can be embraced. Originality/value: This study contributes to the body of knowledge on how change leading to peaceful outcomes can be introduced in conflict systems through peace activism and how we can deal with the current and future violent conflicts more constructively. It also helps to bridge the gap between practice of and research on conflict resolution by giving voice to the practitioners and eliciting lessons from the ground.


Borislava Manojlovic
Borislava Manojlovic, PhD, is the director of research projects and professor at the School of Diplomacy and International Relations, Seton Hall University, USA. Her email address is: borislava.manojlovic@shu.edu.
Article

Access_open International Criminal Court in the Trenches of Africa

Journal African Journal of International Criminal Justice, Issue 0 2014
Keywords Africa and International Criminal Court, Amnesty and war crimes, International Criminal Court, International criminal justice, Peace agreements
Authors Lydia A. Nkansah
AbstractAuthor's information

    The pursuit of international criminal justice in Africa through the International Criminal Court (ICC) platform has not been without hitches. There is a rift between the African Union (AU), as a continental body, and the ICC owing to the AU’s perception that the ICC is pursuing selective justice and the AU’s misgivings about the ICC’s indictment /trial of some sitting heads of states in Africa. This article argues that the claim of selective justice cannot be dismissed because it undermines the regime of international criminal justice. The indictment/trial of serving heads of states also has serious constitutional and political implications for the countries involved, but this has been ignored in the literature. Further, the hitches arise both from the failure of the ICC to pay attention to the domestic contexts in order to harmonize its operations in the places of its interventions and from the inherent weakness of the ICC as a criminal justice system. The ICC, on its part, insists that any consideration given to the domestic contexts of its operations would undermine it. Yet the ICC’s interventions in Africa have had serious political, legal and social implications for the communities involved, jeopardizing the peaceful equilibrium in some cases. This should not be ignored. Using the law to stop and prevent international crimes in African societies would require a concerted effort by all concerned to harmonize the demand for justice with the imperatives on the ground.


Lydia A. Nkansah
LL.B, LL.M (Bendel State University), BL (Ghana & Nigeria), PhD (Walden University) is Senior Lecturer, Faculty of Law, Kwame Nkrumah University of Science and Technology, Kumasi, Ghana. The section of the article under the subheading “Putting the ICC in the Domestic Contexts of its Operation” is partly based on some ideas from the author’s PhD dissertation titled ‘Transitional Justice in Postconflict Contexts: The Case of Sierra Leone’s Dual Accountability Mechanisms’, submitted to Walden University, 2008.

Willem H. van Boom
Prof dr. Willem van Boom is a professor of law. As of August 2014, he holds tenure at Leiden Law School.
Article

Access_open The First World War and Constitutional Law for the Netherlands Indies

Journal Erasmus Law Review, Issue 2 2014
Keywords Commission of Inquiry, constitutional law for the Netherlands Indies, Dutch colonial thinking, ethical policy, First World War, November promises, People’s Council
Authors Nick Efthymiou Ph.D.
AbstractAuthor's information

    In the nineteenth and part of the twentieth century, the Kingdom of the Netherlands had colonies both in the West Indies and in the East Indies. This article will focus on the Dutch colonies in the East Indies, i.e., the Netherlands Indies – present-day Indonesia, and will discuss whether the First World War had an impact on the constitutional law for the Netherlands Indies.


Nick Efthymiou Ph.D.
Nick Efthymiou is lecturer at the Erasmus School of Law, Erasmus University of Rotterdam.
Article

Access_open Unexpected Circumstances arising from World War I and its Aftermath: ‘Open’ versus ‘Closed’ Legal Systems

Journal Erasmus Law Review, Issue 2 2014
Keywords First World War, law of obligations, unforeseen circumstances, force majeure, frustration of contracts
Authors Janwillem Oosterhuis Ph.D.
AbstractAuthor's information

    European jurisdictions can be distinguished in ‘open’ and ‘closed’ legal systems in respect of their approach to unexpected circumstances occurring in contractual relations. In this article, it will be argued that this distinction can be related to the judiciary’s reaction in certain countries to the economic consequences of World War I. The first point to be highlighted will be the rather strict approach to unexpected circumstances in contract law that many jurisdictions had before the war – including England, France, Germany, and the Netherlands. Secondly, the judicial approach in England, France, Germany, and the Netherlands to unexpected circumstances arising from the war will be briefly analysed. It will appear that all of the aforementioned jurisdictions remained ‘closed’. Subsequently, the reaction of the judiciary in these jurisdictions to the economic circumstances in the aftermath of the war, (hyper)inflation in particular, will be analysed. Germany, which experienced hyperinflation in the immediate aftermath of the war, developed an ‘open’ system, using the doctrine of the Wegfall der Geschäftsgrundlage. In the Netherlands, this experience failed to have an impact: indeed, in judicial practice the Netherlands appears to have a ‘closed’ legal system nevertheless, save for an ‘exceptional’ remedy in the new Dutch Civil Code, Article 6:258 of the Burgerlijk Wetboek (1992). In conclusion, the hypothesis is put forward that generally only in jurisdictions that have experienced exceptional economic upheaval, such as the hyperinflation in the wake of World War I, ‘exceptional’ remedies addressing unexpected circumstances can have a lasting effect on the legal system.


Janwillem Oosterhuis Ph.D.
Janwillem Oosterhuis is Assistant Professor in Methods and Foundations of Law at the Maastricht University Faculty of Law.
Article

Living in the Past

The Critics of Plain Language

Journal European Journal of Law Reform, Issue 3 2014
Keywords plain language, legal drafting, legislation, professional responsibility, legalese
Authors Derwent Coshott
AbstractAuthor's information

    This article addresses three core complaints that are frequently levelled by critics of plain legal language: (1) It will reduce reliance on lawyers; (2) It is uncertain and will lead to greater litigation; and (3) Legal writing is, and should only be, for a legally trained audience. The article develops a definition of plain language that reflects a more contemporary understanding. It demonstrates that the three core criticisms misrepresent this understanding and are unsustainable with regard to lawyers’ duty to clients, the role of legislation as public documents, and modern commercial realities.


Derwent Coshott
BA (Dist) (UNSW) JD (Syd) GradDipLegalPrac (ColLaw) LLM (Syd). PhD Candidate and Casual Lecturer at the University of Sydney.
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