Erasmus Law Review

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Aflevering 1, 2024 Alle samenvattingen uitklappen

Access_open Are Insolvency Practitioners Human? On the Role of Similarity, Outcome and Gender Bias in Insolvency Situations

Trefwoorden similarity bias, outcome bias, gender bias, legal psychology, business valuation
Auteurs Marc Broekema, Niek Strohmaier, Jan Adriaanse e.a.

    This article adopts a psychological lens to investigate whether cognitive biases might obscure insolvency practitioners’ perceptions. Through an experimental study among members of INSOL International (N = 272), we find that insolvency practitioners’ judgments of business valuations and business valuators in an insolvency situation are affected by (1) the degree of perceived similarity with the valuator (i.e. similarity bias) and (2) the outcome of a bankruptcy deal in which a valuation is used (i.e. outcome bias), such that their judgments are more favourable in case of higher perceived similarity and in case of a positive outcome. Furthermore, we find that male insolvency practitioners have more trust in male valuators than in female valuators, suggesting that (3) gender biases play a role as well. These findings shine a light on decision-making in business rescue and bankruptcy cases and the insolvency industry in general. The findings call for further research on cognitive biases in insolvency-related matters including possible implications for policymakers.

Marc Broekema
Marc Broekema is Assistant Professor at the Leiden Law School, Department of Business Studies, University of Leiden, the Netherlands, managing director at financial advisory firm Kroll, and lay judge at the Enterprise Chamber of the Amsterdam Court of Appeal.

Niek Strohmaier
Niek Strohmaier is Assistant Professor at the Leiden Law School, University of Leiden, the Netherlands, and is affiliated with law firm RESOR.

Jan Adriaanse
Jan Adriaanse is Professor at the Leiden Law School, University of Leiden, the Netherlands, and director at financial advisory firm Kroll.

Jean-Pierre van der Rest
Jean-Pierre van der Rest is Professor at the Leiden Law School, University of Leiden, the Netherlands. The article is based on the doctoral research project of Marc Broekema, who successfully defended his dissertation ‘Cognitive Bias in the Judgment of Business Valuations and Valuators’ in April 2020 at Leiden University.

Access_open The Defendant as the Reluctant Player in the Adversarial Setting of Medical Dispute Committees

Trefwoorden medical dispute committees, health care incidents, professionals, healing lawyers, comprehensive law movement, complaints
Auteurs Rachel I. Dijkstra, Nieke A. Elbers, Antony Pemberton e.a.

    Medical dispute committees in the Netherlands were formalised in 2017. They offer hybrid procedures, combining complaints handling with the processing of a potential claim in cases where a complaint could not be resolved at the health care organisation. Recent scholarship has shown the experiences of complainants (patients and families) with dispute committees, but research regarding the roles and experiences of the defendants (usually representatives of health care organisations) is lacking. This research aims to understand how defendants understand and fulfil their professional roles and how this could impact the dispute committee proceedings. This research features an inductive, thematic analysis of in-depth interviews with defendants at medical dispute committees. Researchers conducted interviews with eighteen defendants at dispute committees. Defendants were generally managers and legal counsel at health care organisations. The main results include defendants who preferred problem-solving and who wanted to avoid conflict. Defendants did not have a strong adversarial mindset, but they did highlight their commitment to defend the health care professional and institution. Some respondents felt forced into a defensive position, which they reluctantly fulfilled. Our main conclusion is that dispute committee proceedings can demand defendants to take on an adversarial role, despite the best intentions of the legislator to create a less legal procedure and a problem-solving mindset among the defendants. The expectations of defendants and patients might connect better to a problem-solving, healing role of defendants and a less formal set-up.

Rachel I. Dijkstra
Rachel Dijkstra, LL.M., PhD Candidate, Tilburg Law School, Tilburg University and Lecturer at Utrecht University.

Nieke A. Elbers
Nieke A. Elbers, PhD, Senior Researcher, Netherlands Institute for the Study of Crime and Law Enforcement and VU University Amsterdam.

Antony Pemberton
Antony Pemberton, Professor, Netherlands Institute for the Study of Crime and Law Enforcement and Leuven Institute of Criminology, KU Leuven.

Roland D. Friele
Roland D. Friele, Professor, Tranzo Scientific Center for Care and Wellbeing, Tilburg University and Netherlands Institute for Health Services Research (NIVEL), Utrecht.

Access_open Courts, Security and Trust

Trefwoorden trust, security, judiciary, transitional justice, Romania
Auteurs Nedim Hogic

    This article investigates the relationship between trust, security and the judiciary in Romania. Following the democratic transition and European Union (EU) membership, the Romanian legal system faced two crucial tasks: dealing with the past through means of transitional justice, such as lustration (vetting), and dealing with the future through anti-corruption measures that were to strengthen the rule of law and enable economic development. In dealing with both tasks, the Romanian judiciary was essential in making far-reaching decisions whose consequences went far beyond the legal system. In this article, the author examines some of the implications of the decisions in these two areas for the levels of trust within the judiciary and trust in the judiciary.

Nedim Hogic
Nedim Hogic, Postdoctoral Research Fellow, Faculty og Law, Department of Public and International Law, University of Oslo.

Access_open Trust Issues? Article 99 RoP Reasoned Orders in the Preliminary Reference Procedure

Trefwoorden Court of Justice, reasoned orders, EU law, procedural tools, trust
Auteurs Lucía López Zurita

    This article explores reasoned orders issued by the Court of Justice (the Court) to reply to preliminary references of the national courts in the procedure for a preliminary ruling of Article 267 TFEU. Reasoned orders allow the Court to reply in a swift manner to preliminary references that raise no doubts. This article looks at the use of reasoned orders as proxies of trust and, thus, contributes to the research on trust in a multilevel judicial system. To this end, it analyses all Article 99 orders issued by the Court of Justice during two full years (2020 and 2021). The article uses this qualitative analysis to reflect on the Court’s trust on its national counterparts, and of the latter in the Court, and provide suggestions on how to use these orders to enhance reciprocal trust.

Lucía López Zurita
Lucía López Zurita, Postdoctoral Researcher, University of Copenhagen, Faculty of Law.