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Gerry Johnstone
Gerry Johnstone is Professor of Law, University of Hull, Hull, UK. Contact author: J.G.Johnstone@hull.ac.uk.

Gerd Delattre
Gerd Delattre was head of the TOA-Servicebureau by DBH e. V. in Cologne/Germany for over 20 years. He is considered a pioneer of victim-offender mediation in Germany.

Christoph Willms
Christoph Willms is assistant to the head of the TOA-Servicebureau by DBH e. V. Contact authors: gerd@delattre.de, christophwillms@web.de.

Albert Dzur
Albert Dzur is Distinguished Research Professor, Departments of Political Science and Philosophy, Bowling Green State University, USA. Contact author: awdzur@bgsu.edu.
Article

Increasing Access to Justice through Online Dispute Resolution

Journal International Journal of Online Dispute Resolution, Issue 1 2020
Keywords ODR, fairness, disability, accommodation, accessibility
Authors Wendy Carlson
AbstractAuthor's information

    Online dispute resolution has been posed as a way to further increase access to justice. This article explores the concept of using ODR to increase both ‘access’ and ‘justice’ within the dispute resolution system. The concept of increasing access to the dispute resolution system includes a wide variety of ideas: providing dynamic avenues into the legal process to better serve more people, particularly those with physical disabilities, increasing accessibility to low-income communities and ensuring the platform can be used by non-native English speakers. ODR provides the potential to greatly impact the court system by making the court process more efficient and accurate. While there is great value in integrating ODR into the dispute resolution system, the ODR system itself creates a variety of barriers. In order to effectively increase access to justice through ODR, the ODR system must be developed to maximize ‘accessibility’. The second prong to this discussion explores the concept of ‘justice’ within the context of ODR. Critics of ODR purport that the system values efficiency over justice. This article analyses the legitimacy of ODR as a judicial system through three key factors: representation of individual views, neutrality in decision-making, and trust.


Wendy Carlson
Juris Doctor Candidate, Mitchell Hamline School of Law.
Article

The Role of the Seat in Smart Contract Disputes

Journal International Journal of Online Dispute Resolution, Issue 1 2020
Keywords smart contracts, international commercial arbitration, blockchain technology, online arbitration
Authors Diana Itzel Santana Galindo
AbstractAuthor's information

    Over the past few decades, international commercial arbitration has experienced major developments in various fields. A major recent development that will spread widely in the years to come relates to technology and the necessity of international commercial arbitration to adapt to the new needs of the market. The path of technological development in commerce is determined by forces other than the needs of legal practitioners. Moreover, the lack of real connection to a sole place, in disputes where the multi-parties have not selected the seat, can create serious obstacles for the arbitral proceedings in blockchain technology disputes. In this regard, smart contracts, however, appear to have identifiable parties with an identified physical point of connection that ultimately can be adapted to the existing place of the arbitration theory within the international arbitration legal framework.


Diana Itzel Santana Galindo
LL.M. graduate in Comparative and International Dispute Resolution at Queen Mary University of London. Legal internship experiences at the Korean Commercial Arbitration Board (KCAB International), Beijing Arbitration Commission (BAC/BIAC), and the Hong Kong International Arbitration Centre (HKIAC).
Article

Online Dispute Resolution in a Traditional Justice System

Journal International Journal of Online Dispute Resolution, Issue 1 2020
Keywords ODR, traditional justice system, insecure areas, Afghanistan
Authors Fathudin Yazdani
AbstractAuthor's information

    This article examines the applicability of Online Dispute Resolution (ODR) in Afghanistan. It evaluates whether ODR can resolve disputes in a traditional justice system, like Jirga, where the formal justice system is weak. This analysis questions whether ODR can complement the traditional jurisdiction system, where the public relies on customary practices to solve disputes. Further, the analysis focuses on the applicability of ODR in insecure areas, where access to formal judicial processes is limited. The findings from this study suggest the development of effective dispute resolution mechanisms in Afghanistan, mainly using ODR.


Fathudin Yazdani
Yazdani Fathudin completed his Post Graduation in Master of Science in Law (MSL) from The University of The Pacific McGeorge School of Law in 2020. He served as a legal advisor and assistant to the deputy minister ministry of interior in Afghanistan. Also, he worked as investigator and security associate in the United Nation Offices for Project Services (UNOPS) in Afghanistan.
Article

The Online Civil Money Claim

Litigation, ADR and ODR in One Single Dispute Resolution Process

Journal International Journal of Online Dispute Resolution, Issue 1 2020
Keywords ADR, pre-action protocols, civil procedure, online dispute resolution, mediation, civil justice, online civil money claim, online services
Authors Md Mahar Abbasy
AbstractAuthor's information

    This article considers the recent reforms in English Civil Justice System, especially the new Online Civil Money Claim (OCMC). To make the UK courts easily accessible and affordable, Lord Justice Briggs in his Civil Courts Structure Review recommended for the introduction of an Online Solutions Court. This is a revolutionary step because it embeds alternative dispute resolution (ADR), in particular mediation, into the court system. This is very important because mediation emerged as an alternative to courts but has become an integral part of it. This study critically examines how mediation is being embedded into the English Civil Justice System and argues for a balanced relationship between litigation and mediation because they complement each other. This article is divided into four sections (a) Section 2 will discuss how the Online Court will impact the open justice; (b) Section 3 will provide an overview of the three stages of OCMC; (c) Section 4 will carry out a critical analysis of the OCMC; and (d) Section 5 will seek to put forward solutions and recommendations in light of the findings.


Md Mahar Abbasy
PhD Candidate at the University of Leicester.
Article

Artificial Intelligence in the Courtroom

Increasing or Decreasing Access to Justice?

Journal International Journal of Online Dispute Resolution, Issue 1 2020
Keywords artificial intelligence, robojudge, separation of powers, algorithm, due proces
Authors Analisa Morrison
AbstractAuthor's information

    Jurisdictions around the world are experimenting with the use of artificially intelligent systems to help them adjudicate cases. With heavily overloaded dockets and cases that go on for years, many courts in the U.S. are eager to follow suit. However, American authorities should be slow to substitute human judges with automated entities. The uniqueness of the U.S. Constitution has demands that artificially intelligent “judges” may not be able to meet, starting with a machine’s lack of what may be called “true intelligence”. Philosopher John Searle wrote about the distinction between true intelligence and artificial intelligence in his famous “Chinese Room” analogy, which is applicable to the discussion of artificial intelligence in the courtroom. Former Navy Reserves officer, robotics engineer, and current patent lawyer Bob Lambrechts analyzed the idea of robots in court in his article, May It Please the Algorithm. Other scholars have started to explore it, too, but the idea of robots as judges remains a vast legal frontier that ought to be excavated thoroughly before it is inhabited by the American legal system.


Analisa Morrison
Juris Doctor Candidate, 2021, University of the Pacific, McGeorge School of Law
Article

E-Measures

International Arbitral Institutions’ Responses to COVID-19

Journal International Journal of Online Dispute Resolution, Issue 1 2020
Keywords international arbitration institutions, COVID-19, availability of e-filing, e-measures
Authors Kendra Magraw
AbstractAuthor's information

    This article will briefly and non-exhaustively examine the emergency measures taken by some international arbitral institutions in response to the COVID-19 pandemic. Such emergency measures, as will be seen, were primarily and due to necessity geared towards moving arbitrations online. Section 1 briefly describes some reasons why the status quo prior to COVID-19 for certain arbitral institutions likely made it necessary to implement e-measures: in other words, it will provide examples of the types of constraints that may have previously prevented arbitral institutions from being more electronic/online. Section 2 broadly identifies the e-measures taken by arbitral institutions, and extracts some general trends therefrom. Finally, Section 3 will offer some brief conclusions and thoughts concerning the future of such e-measures.


Kendra Magraw
Kendra Magraw is a doctoral candidate in international law at the Graduate Institute of International and Development Studies in Geneva, Switzerland.
Article

The Value of Online Dispute Resolution in Family Law

Journal International Journal of Online Dispute Resolution, Issue 1 2020
Keywords online dispute resolution, family law, access to justice, domestic relations cases, online mediation
Authors Margaret M. Huck
AbstractAuthor's information

    Online dispute resolution is an incredibly powerful tool for litigants, particularly in the area of family law. In the United States, courts with flooded dockets in both metropolitan and rural areas have employed various online systems and software programs to help parties better work through issues. While ODR can provide such benefits as a quicker and less expensive resolution, it also presents some concerns which need addressed by the legal community. For example, many who would otherwise benefit from ODR may struggle with access to the necessary technology, or could greatly benefit from advice on how to phrase opinions in a neutral manner, so as not to derail an emotionally charged discussion. Further, while a history of domestic violence among parties necessitates screening, it is possible that they may be able to utilize ODR if counsel is present. Finally, to promote candor and problem-solving among the parties, all ODR platforms should be as secure as possible.


Margaret M. Huck
Born and raised in southeastern Ohio, Margaret ventured to Columbus to study Psychology at The Ohio State University. She later graduated from The Ohio State University Moritz College of Law in May 2020 with a Certificate in Dispute Resolution. She is passionate about showcasing the benefits alternative dispute resolution can bring to litigants, particularly in the realm of family law.
Research Note

Caretaker Cabinets in Belgium: A New Measurement and Typology

Journal Politics of the Low Countries, Issue Online First 2020
Keywords caretaker government, Belgium, cabinets, political crisis
Authors Régis Dandoy and Lorenzo Terrière
AbstractAuthor's information

    Belgium is probably the world’s best known case of where caretaker governments reside. Yet a clear scholarly definition and measurement of this concept is missing. Based on a detailed analysis of the Belgian federal cabinets, this research note explores the main characteristics and measures the length of the various caretaker periods. We find that Belgium was governed for no less than 1,485 days by a caretaker government between 2007 and 2020, which equals more than four full calendar years. This research note also presents a novel typology of caretaker periods based on the institutional and political practice within the Belgian legislative and executive branches. This typology can be used to assess caretaker periods at other levels of government as well as in other countries in order to improve our understanding of the many ‘faces’ that a caretaker government can take on.


Régis Dandoy
Université Libre de Bruxelles

Lorenzo Terrière
Universiteit Gent
Article

Access_open The Feminisation of Belgian Local Party Politics

Journal Politics of the Low Countries, Issue 2 2020
Keywords local politics, local party branches, local elections, gender quotas, Belgium
Authors Robin Devroe, Silvia Erzeel and Petra Meier
AbstractAuthor's information

    This article investigates the feminisation of local politics. Starting from the observation that the representation of women in local electoral politics lags behind the regional and federal level, and taking into account the relevance of local party branches in the recruitment and selection of candidates for elections, we examine the extent to which there is an ‘internal’ feminisation of local party branches and how this links to the ‘external’ feminisation of local electoral politics. Based on surveys among local party chairs, the article maps patterns of feminisation over time and across parties, investigates problems local branches encounter in the recruitment of candidates for local elections, and analyses the (attitudes towards the) measures taken to further the integration of women in local electoral politics. We conclude that internal and external feminisation do not always go hand in hand and that local politics continues to be a male-dominated political biotope.


Robin Devroe
Robin Devroe is a postdoctoral researcher in the Department of Political Sciences of Ghent University and member of the research group GASPAR. Her main research interest is the study of the political representation of diverse social groups and voting behaviour, with a specific focus on the descriptive representation of women, and she has a fascination for experimental methods. Her doctoral work (2019, Ghent University) focused on the prevalence of political gender stereotypes among Flemish voters. In the past, Robin was a visiting scholar at Texas A&M University (2018, US). Since 2020, she has been co-convenor of the European Consortium for Political Research’s (ECPR’s) Group on Gender and Politics.

Silvia Erzeel
Silvia Erzeel is Assistant Professor at the Department of Political Science, Vrije Universiteit Brussel. Her research interests include party politics, political representation, gender and intersectionality, and comparative politics. Her current research focuses on three main areas: the integration of gender equality in political parties, intersectionality and political representation in Europe, and the consequences of economic and social inequality for representative democracy. Since 2018, she has been co-convenor of the European Consortium for Political Research’s (ECPR’s) Standing Group on Gender and Politics.

Petra Meier
Petra Meier is Professor of Politics at the Faculty of Social Sciences, University of Antwerp. Her research focuses on the (re)presentation of gender+ in politics and policies. Late work focused on the conceptualisation of symbolic representation, how it operates and the issues at stake from an inclusive perspective. Recently, she turned to study democratic deficits in federal systems, especially Belgium, and processes of de-democratisation in general. She is particularly interested in understanding how such processes affect the demos, more particularly from a gender, an LGBTQI or an ethnic perspective, and what dynamics of marginalisation and exclusion they generate.
Article

Access_open Recourse to Mediation in Times of Crisis

Is Business Ripe for a New Approach That Saves Time and Preserves Relationships, Also in the Field of Competition Law?

Journal Corporate Mediation Journal, Issue 1 2020
Keywords cross-border mediation, crises, Covid-19
Authors Pierre Kirch
AbstractAuthor's information

    The purpose of this article is to share some practical reflections on cross-border mediation and its application to Private Competition Disputes in Europe, at this time of crisis. The outbreak of the COVID-19 pandemic has led to a rethinking of methods of dispute resolution, everywhere. In Europe, whether before the European Union courts in Luxembourg or the civil and commercial courts in the Member States, judicial procedures are at a standstill at the time of writing (mid-2020). Once the courts get going again, it will probably take years to get the judicial system back in good working order. It may be necessary to take shortcuts to get the system back in shape, such as cancellation of hearings, recourse to summary forms of justice, etc. That is not what the parties bargained for at the outset of their judicial procedure.


Pierre Kirch
Avocat à la Cour (Paris & Brussels Bars), Partner, Paul Hastings (Europe) LLP, mediator certified by the Centre de Médiation et d’Arbitrage de Paris (CMAP, Paris) and the Center for Effective Dispute Resolution (CEDR, London).
Article

Aviators Grounded by COVID-19 (But Mediators Are Ready to Fly)

Journal Corporate Mediation Journal, Issue 1 2020
Keywords Fledgling mediators, Master Mediators, Ken Cloke, John Sturrock, Mediator’s Flight Plan
Authors Anna Doyle
AbstractAuthor's information

    Fledgling mediators are nourished by the wisdom of Master Mediators, until they find their wings and take to the sky. This is a personal perspective, inspired by the author’s attendance at a Master Class given by Ken Cloke in Edinburgh in 2008 (organised by John Sturrock of Core). It echoes precious wisdom, skilfully imparted and gratefully received. The Mediator’s Flight Plan has happily kept the author’s feet ‘off the ground’ for the past 12 years and has inspired her to fly. She shares it now in the hope that it may also inspire other mediators to dare to soar.


Anna Doyle
Anna (Walsh) Doyle is an International Mediator & CMJ Editorial Board member. She is also an external Mediator on the Global Mediation Panel at the Office of the Ombudsman for UN Funds and Programmes (independent contractor serving on an on-call basis).

Kristin Henrard
Kristin Henrard is Professor International Human Rights and Minorities, Erasmus School of Law, Rotterdam, the Netherlands.
Article

Le nouveau code de procédure pénale en Côte d’ivoire

entre avancées et innovations

Journal African Journal of International Criminal Justice, Issue 1 2020
Keywords Code de procédure pénale, Côte d’ivoire, droits de l’homme, justice, Criminal procedure code, human rights
Authors Judicaël Elisée Tiehi
AbstractAuthor's information

    Longtemps critiqué pour son système pénal jugé suranné, l’Etat de Côte d’ivoire a fait le choix de se doter d’un nouveau de procédure pénale dans le sillage de sa politique de réforme juridique et institutionnel et de modernisation de son système judiciaire. Adopté par la loi n° 2018-975 du 27 décembre 2018 en vue de le conformer aux standards juridiques nationaux (la Constitution de 2016) et internationaux, ce nouveau code à l’architecture profondément restructurée consacre des avancées majeures en matière de protection des droits de l’homme dont l’une des plus emblématique reste la codification inédite de principes directeurs irradiant les différentes phases de la procédure pénale. Ces innovations, matérialisées par la consécration de mécanismes procéduraux révolutionnaires ainsi que par la création des institutions pénales nouvelles, constituent un tremplin vers la consolidation de l’Etat de droit dans le cadre duquel les attributs d’indépendance, d’impartialité et d’équité procédurale occuperont une place de choix.

    ---
    Long criticized for his outdated criminal system, State of Côte d’ivoire has established a new criminal procedure code in the wake of its legal and institutional policy reform and modernization of its judicial system. Adopted by law n° 2018-975 on 27 December 2018 in order to comply it with national (constitutional provisions of 2016) and international legal standards, this new code with its profoundly restructured architecture enshrines major advances in relation to human rights protection, one of the most emblematic of which is the codification of guiding principles covering of various stages of criminal procedure. These innovations, embodied in setting of revolutionary procedural mechanisms and creation of new penal institutions are springboards towards the development Rule of law in which attributes of independence, impartiality and procedural equity will occupy a prominent place.


Judicaël Elisée Tiehi
L’auteur est Doctorant-chercheur en droit international public au Centre Jean Bodin de l’Université d’Angers. Sous la co-direction de Caroline DUPARC (Maître de Conférences en droit privé et sciences criminelles à l’université d’Angers - France) et Annalisa CIAMPI (Professeure de droit international public à l’université de Vérone – Italie), ses travaux de recherches portent sur « Les droits procéduraux devant la Cour pénale internationale: essai critique sur le régime de participation des victimes ». Il tient à remercier sincèrement Mauriac GNOKA pour son assistance documentaire, Hermann Rodrigue ABY et Prudence Claire-Josiane TIEHI pour leurs précieuses relectures.
Article

Access_open African Union and the Politics of Selective Prosecutions at the International Criminal Court

Journal African Journal of International Criminal Justice, Issue 1 2020
Keywords African Union (AU), United Nations Security Council (UNSC), International Criminal Court (ICC), immunity, impunity
Authors Dr. Fabrice Tambe Endoh PhD
AbstractAuthor's information

    The African Union (AU) claims that the International Criminal Court (ICC) is selective against African leaders. The issue therefore arises concerning the validity of the allegations of selectivity. Partly because of such concerns, African Heads of States adopted the Malabo Protocol during their annual summit held in June 2014. Article 46A bis of the Protocol provides immunity for sitting Heads of States. This provision contradicts Article 27 of the Rome Statute and, consequently, arguably reverses the progress made so far in international criminal law by giving priority to immunity in the face of impunity. This article considers the validity of some of the allegations of selective application of criminal sanctions by the ICC and the likely consequence of the Malabo Protocol for regional and international criminal justice. The article argues that the Malabo Protocol should not be ratified by African states until the shield of immunity granted to sitting Heads of States is lifted to better advance the interests of justice for the victims of international crimes in Africa. In addition, the complementarity clause stated in the Malabo Protocol should have a nexus with the ICC such that the Court would be allowed to prosecute the perpetrators of international crimes in circumstances where the African Court of Justice and Human Rights (ACJHR) prove reluctant to do so.


Dr. Fabrice Tambe Endoh PhD
Dr. Fabrice Tambe Endoh holds a PhD in International Criminal Law from the North-West University, South-Africa.
Article

The ICC or the ACC

Defining the Future of the Immunities of African State Officials

Journal African Journal of International Criminal Justice, Issue 1 2020
Keywords ICC, ACC, immunities of African state officials, customary international law rules on immunities, Article 46A bis of the 2014 Malabo Protocol
Authors Aghem Hanson Ekori LLM, LLB
AbstractAuthor's information

    The International Criminal Court (ICC), whose treaty came into force about 18 years ago, was highly celebrated at the time of its creation in 1998 by many African states, led by the African Union (AU), even though it does not recognize the immunities of state officials before its jurisdiction. Conversely, the African Criminal Court (ACC), which was established in 2014 through a Protocol by the AU, recognizes the personal immunities of serving African state officials before its jurisdiction. Accordingly, this article argues that both Article 46A bis of the Malabo Protocol and Article 27 of the Rome Statute are neither inconsistent nor violative of the customary international law rules on the immunities of state officials. It further suggests that the immunity provision in Article 46A bis may be an affront to justice to the people of Africa as long as the state officials are in office despite its seeming consistency with customary international law rule. Finally, in exploring the future of the immunities of African state officials, the article will examine the possibility of blending the jurisdictions of both the ICC and the ACC through the complementarity principle since both courts are aimed at ending impunity for international crimes.


Aghem Hanson Ekori LLM, LLB
Doctoral candidate at UNISA, 2020, LLM, UNISA, LLB, University of Dschang, Cameroon.
Article

Access_open State Obligations to Counter Islamophobia: Comparing Fault Lines in the International Supervisory Practice of the HRC/ICCPR, the ECtHR and the AC/FCNM

Journal Erasmus Law Review, Issue 3 2020
Keywords Human rights, positive state obligations, islamophobia, international supervisory mechanisms
Authors Kristin Henrard
AbstractAuthor's information

    Islamophobia, like xenophobia, points to deep-seated, ingrained discrimination against a particular group, whose effective enjoyment of fundamental rights is impaired. This in turn triggers the human rights obligations of liberal democratic states, more particularly states’ positive obligations (informed by reasonability considerations) to ensure that fundamental rights are effectively enjoyed, and thus also respected in interpersonal relationships. This article identifies and compares the fault lines in the practice of three international human rights supervisory mechanisms in relation to Islamophobia, namely the Human Rights Committee (International Covenant on Civil and Political Rights), the European Court of Human Rights (European Convention on Human Rights) and the Advisory Committee of the Framework Convention for the Protection of National Minorities. The supervisory practice is analysed in two steps: The analysis of each international supervisory mechanism’s jurisprudence, in itself, is followed by the comparison of the fault lines. The latter comparison is structured around the two main strands of strategies that states could adopt in order to counter intolerance: On the one hand, the active promotion of tolerance, inter alia through education, awareness-raising campaigns and the stimulation of intercultural dialogue; on the other, countering acts informed by intolerance, in terms of the prohibition of discrimination (and/or the effective enjoyment of substantive fundamental rights). Having regard to the respective strengths and weaknesses of the supervisory practice of these three international supervisory mechanisms, the article concludes with some overarching recommendations.


Kristin Henrard
Kristin Henrard is Professor International Human Rights and Minorities, Erasmus School of Law, Rotterdam, the Netherlands.
Article

Access_open Age Limits in Youth Justice: A Comparative and Conceptual Analysis

Journal Erasmus Law Review, Issue 1 2020
Keywords youth justice, age limits, minimum age of criminal responsibility, age of criminal majority, legal comparison
Authors Jantien Leenknecht, Johan Put and Katrijn Veeckmans
AbstractAuthor's information

    In each youth justice system, several age limits exist that indicate what type of reaction can and may be connected to the degree of responsibility that a person can already bear. Civil liability, criminal responsibility and criminal majority are examples of concepts on which age limits are based, but whose definition and impact is not always clear. Especially as far as the minimum age of criminal responsibility (MACR) is concerned, confusion exists in legal doctrine. This is apparent from the fact that international comparison tables often show different MACRs for the same country. Moreover, the international literature often seems to define youth justice systems by means of a lower and upper limit, whereas such a dual distinction is too basic to comprehend the complex multilayer nature of the systems. This contribution therefore maps out and conceptually clarifies the different interpretations and consequences of the several age limits that exist within youth justice systems. To that extent, the age limits of six countries are analysed: Argentina, Austria, Belgium, the Netherlands, New Zealand and Northern Ireland. This legal comparison ultimately leads to a proposal to establish a coherent conceptual framework on age limits in youth justice.


Jantien Leenknecht
Jantien Leenknecht is PhD Fellow of the Research Foundation Flanders (FWO) at KU Leuven, Institute of Social Law and Leuven Institute of Criminology.

Johan Put
Johan Put is Full Professor at KU Leuven, Institute of Social Law and Leuven Institute of Criminology.

Katrijn Veeckmans
Katrijn Veeckmans is PhD Fellow at KU Leuven, Institute of Social Law and Leuven Institute of Criminology.
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