Zoekresultaat: 291 artikelen

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ECJ Court Watch

ECJ 14 September 2017, case C-168/16 and C-169/16 (Ryanair), Private international law

Sandra Nogueira and Others – v – Crewlink Ireland Ltd and Miguel José Moreno Osacar – v – Ryanair Designated Activity Company

Tijdschrift European Employment Law Cases, Aflevering 4 2017
Trefwoorden Private international law
Samenvatting

    When determining the place from which airline cabin crewmembers habitually carry out their work, the concept of ‘home base’ is a significant indicator.

    The highest administrative court in the Netherlands has delivered a razor-sharp ruling on the intra-community service provision set out in Articles 56 and 57 of the Treaty on the Functioning of the European Union). This concerns ‘new’ EU-nationals who are still under transitional measures with regard to access to the labour markets of ‘old’ EU Member States. The judgment was preceded by a request from the Chairman to a State Councillor Advocate General to deliver his opinion on various aspects of punitive administrative law practice in the Netherlands. Both the opinion and the judgment are a welcome clarification and addition (or even correction) on the practice.


Othmar K. Traber
Othmar K. Traber is a partner at Ahlers & Vogel Rechtsanwalte PartG mbB in Bremen, www.ahlers-vogel.com.

    The Czech Supreme Court has given guidance on the limits to employees’ free speech. Employees must not engage in any conduct, even outside working hours, that could actually or potentially damage their employer’s business. Any criticism of an employer must be based on facts and not be misleading or defamatory. Inappropriate or unjustified criticism may lead to immediate termination of employment.


Anna Diblíková
Anna Diblíková is an attorney at Noerr in Prague, www.noerr.com.

    This paper discusses three approaches that can be helpful in the area of comparative rights jurisprudence, oriented in reference to three different kinds of studies that are possible in that area. To a large extent the methods for a comparative legal research depend on the research question and the goal of the researcher. First, a comparative law study may focus on the sociocultural context that led to the elaboration of differences or similarities in the protection of rights. Second, a comparative law approach can be a normative enterprise. It can focus on engaging in a philosophical analysis enlightened by the differences or similarities in the regulation of rights, in order to propose concrete solutions for the regulation of a right. Third, a comparative law approach can combine both elements of the two previously mentioned approaches. The paper discusses the challenges that the researcher faces in her attempt to use these methodologies and how these challenges can be overcome. The law as a normative discipline has its own constraints of justifiability. If what motivates a comparative law study is the search for principles of justice the researcher needs to persuade that her methodological approach serves her aim.


Ioanna Tourkochoriti
School of Law, NUI Galway, Ireland.

    The nexus between religion and law is an important subject of comparative law. This paper, however, finds that the majority of comparative theorists rely on the immanent frame; that legal legitimacy can and should be separated from any objective truth or moral norm. But the fact of the matter is many constitutional systems were founded based on a complicated mixture between the transcendent and immanent frame. Whereas in the immanent frame, human actions are considered self-constituting, in the transcendent frame, human actions were judged in light of their correspondence to higher, divine laws and purposes.
    This article argues that it is not sufficient for comparative theorists to offer a perspective from the immanent frame. Comparative theorists in law and religion should understand at least basic religious doctrines and know how to systematize those doctrines. In other words, comparative theorist of law and religion should work within the transcendent frame. By using a transcendent frame, comparative theorists will be able to excavate the underlying structure of religion, and so they will understand better how theological ideas influence law. Furthermore, this paper will also present a thought experiment in applying the transcendent frame in comparative constitutional studies.


Stefanus Hendrianto
Stefanus Hendrianto is a scholar at Boston College, School of Theology and Ministry. In recent years, he has been a visiting professor at Santa Clara University School of Law (2013-2015) and a guest scholar at the Kellogg Institute for International Studies at the University of Notre Dame (2015-2016). He holds a Ph.D. degree from the School of Law, University of Washington, Seattle and LLM degree from Utrecht University, Netherlands, in addition to his LLB degree from Gadjah Mada University, Indonesia.

    Comparative methodology is an important and a widely used method in the legal literature. This method is important inter alia to search for alternative national rules and acquire a deeper understanding of a country’s law. According to a survey of over 500 Dutch legal scholars, 61 per cent conducts comparative research (in some form). However, the methodological application of comparative research generally leaves much to be desired. This is particularly true when it comes to case selection. This applies in particular to conceptual and dogmatic research questions, possibly also allowing causal explanations for differences between countries. This article suggests that the use of an interdisciplinary research design could be helpful, and Hofstede’s cultural-psychological dimensions can offer a solution to improve the methodology of selection criteria.


Dave van Toor
D.A.G. van Toor, PhD LLM BSc works as a researcher and lecturer in Criminal (Procedural) Law and Criminology at the Universität Bielefeld.

    In the last few decades, we have witnessed the renaissance of Comparative Constitutional law as field of research. Despite such a flourishing, the methodological foundations and the ultimate ratio of Constitutional comparative law are still debated among scholars. This article starts from the definition of comparative constitutional law given by one of the most prominent comparative constitutional law scholars in Italy, prof. Bognetti, who defined comparative constitutional law as the main joining ring between the historical knowledge of the modern law and the history of the humankind in general and of its various civil realizations. Comparative constitutional law is in other words a kind of mirror of the “competing vision of who we are and who we wish to be as a political community” (Hirschl), reflecting the structural tension between universalism and particularism, globalization and tradition.
    The article aims at addressing the main contemporary methodological challenges faced by the studies of the field. The article argues that contemporary comparative constitutional studies should address these challenges integrating the classical “horizontal” comparative method with a vertical one - regarding the international and supranational influences on constitutional settings - and fostering an interdisciplinary approach, taking into account the perspective of the social sciences.


Antonia Baraggia
Emile Noël Fellow, Jean Monnet Center for International and Regional Economic Law & Justice, NYU School of Law and Post-doc Fellow in Constitutional Law, University of Milan. For helpful comments on an earlier draft I am grateful to Luca Pietro Vanoni, Sofia Ranchordas and two anonymous reviewers.

    Both H.L.A. Hart and John Searle repeatedly refer to games in their work on the concept of law and the construction of social reality respectively. We can argue that this is not a coincidence, Hart’s analysis of law as a system of primary and secondary rules bears close resemblances to Searle’s analysis of social reality as a system of regulative and constitutive rules and the comparison to games leads to interesting insights about the ontology of law and legal epistemology. The present article explores both the institutional theory of law that can be devised on the basis of the work of Hart and Searle, the method of analytical philosophy they employ and the particular consequences that can be deduced for legal research from the resulting legal theory.


Arie-Jan Kwak
Dr. A.J. Kwak, Faculty of Law, Leiden University, Leiden, The Netherlands.

    The article discusses the contribution of comparative law to the study of federalism and decentralisation. In doing so, it stresses the relevance of the notion of federalising process, as elaborated by Carl J. Friedrich.


Giacomo Delledonne
Postdoctoral fellow in Constitutional Law, Scuola superiore Sant’Anna, Pisa, Italy. Email: giacomo. delledonne@gmail.com. Huge thanks go to Sofia Ranchordás and Irene Broekhuijse. I would also like to thank Paolo Carrozza, Paolo Addis, Ilaria Rivera and the anonymous reviewers for their precious suggestions and comments.
Artikel

2017/26 What is a collective agreement? (DK)

Tijdschrift European Employment Law Cases, Aflevering 3 2017
Trefwoorden Collective labour law, Collective agreements
Auteurs Christian K. Clasen
SamenvattingAuteursinformatie

    On 2 June 2017, the Danish Eastern High Court decided that a statutory intervention by government was sufficient to enable derogation from the Working Time Directive (2003/88). The Directive can be derogated from by a collective agreement and although the statutory intervention was not a collective agreement, the High Court found that it was not inconsistent with that requirement.


Christian K. Clasen
Christian K. Clasen is a partner at Norrbom Vinding, Copenhagen.
Artikel

ADR Clauses and International Perceptions: A Preliminary Report

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 3 2017
Trefwoorden ADR, Dispute resolution clauses, Questionnaire, commercial contracts
Auteurs Maryam Salehijam
SamenvattingAuteursinformatie

    This article provides a preliminary analysis of the 622 responses to a questionnaire conducted in the context of Maryam Salehijam’s PhD research which focuses on commercial parties’ agreement to mediate/conciliate. The questionnaire targeted ADR professionals and experts with experience in drafting, inserting, or enforcing dispute resolution clauses that provide for non-binding ADR mechanisms. Some of the key findings include that it is still not very common for commercial contracts to conclude agreements to mediate/conciliate. This begs the question of why the parties and/or their legal advisors do not conclude such agreements as regularly as agreements to arbitrate. Moreover, the questionnaire confirmed that there is widespread practice in contract drafting to copy and paste dispute resolution clauses. This practice is shocking in light of the rising number of cases in which the parties dis­agree regarding the binding nature of their dispute resolution clause.


Maryam Salehijam
Maryam Salehijam is a PhD Researcher at the University of Ghent (Transnational Law Centre), LL.M. International Laws (Maastricht University) and LL.B. European Law (Maastricht University).

    The purpose of this article is to investigate whether the notion of an interest should be taken more seriously than the notion of a right. It will be argued that it should; and not only because it can be just as amenable to the institutional taxonomical structure often said to be at the basis of rights thinking in law but also because the notion of an interest has a more epistemologically convincing explanatory power with respect to reasoning in law and its relation to social facts. The article equally aims to highlight some of the important existing work on the notion of an interest in law.


Geoffrey Samuel
Professor of Law, Kent Law School, The University of Kent, Canterbury, Kent, U.K. This article is a much re-orientated, and updated, adaption of a paper published a decade ago: Samuel 2004, at 263. The author would like to thank the anonymous referees for their very helpful criticisms and observations on an earlier version of the manuscript.
Artikel

Access_open Criminal law sanctions and the Return Directive: the position of illegally staying third-country nationals in the European Union

Tijdschrift Crimmigratie & Recht, Aflevering 1 2017
Trefwoorden Crimmigration, Return Directive, Entry ban, Sanctions, Criminal law
Auteurs Aniel Pahladsingh LL.M. en Jim Waasdorp LL.M.
SamenvattingAuteursinformatie

    At EU level, the use of substantive criminal law as a response to illegal migration is materialised by both the EU legislator and the Member States individually. EU involvement in criminalizing illegal migration takes place in a twofold manner: directly, through harmonization of national legislations, and indirectly, through the case law of the Court of Justice of the European Union (CJEU). An example of the latter is the case law of the CJEU regarding criminal law sanctions for breaching an entry ban. In this article, we will analyse judgments of the CJEU in the light of crimmigration law and make a distinction between the Member States’ power to classify a breach of an entry ban as an offence and to lay down criminal law sanctions in national legislation, and their power to impose such sanctions.


Aniel Pahladsingh LL.M.
Mr. A. Pahladsingh is jurist bij de Raad van State en rechter-plaatsvervanger bij de Rechtbank Rotterdam. Hij is tevens lid van de redactie van Crimmigratie & Recht.

Jim Waasdorp LL.M.
Mr. J.R.K.A.M. Waasdorp LL.M. works as a lawyer at the Administrative Jurisdiction Division of the Dutch Council of State (as of the 1st of June 2017, Jim is seconded to the Directorate General of Library, Research and Documentation of the Court of Justice of the European Union) and is a researcher at the University of Utrecht.
Artikel

Access_open Pursuing Legal Research

Tijdschrift Law and Method, juni 2017
Auteurs Synne Sæther Mæhle
SamenvattingAuteursinformatie

    By conducting methodological assessments, legal researchers decide which lines of inquiry are worth pursuing. Two aspects of such assessments are highlighted in this article. The first aspect is to construct promising lines of inquiry. The second aspect is to clarify provisionally the potential of various promising lines of inquiry. Clarifying and calibrating such potential through discourse with fellow researchers are essential. Increased awareness of how legal researchers decide which lines of inquiry are worth pursuing is vital to contemporary discourse about legal methodology.


Synne Sæther Mæhle
Associate professor, Faculty of Law, University of Bergen, Norway
Artikel

‘Troostmeisjes’: Over de structurele ontkenning van seksuele slavernij en voortschrijdende victimisatie

Tijdschrift Tijdschrift over Cultuur & Criminaliteit, Aflevering 2 2017
Trefwoorden comfort women, denial, sexual slavery, discourse analysis
Auteurs dr. mr. Roland Moerland
Samenvatting

    In 2015, South-Korea and Japan came to a ‘final’ agreement concerning the ‘comfort women’ issue. This contribution reveals that this deal signals the next stage in a process of denial through which Japanese authorities have structurally denied the women’s’ victimhood. Taking a discourse analytical approach, the contribution investigates this historical process of denial and its implications. The analysis shows that denial takes several forms and performs different functions throughout the process. It demonstrates that denial is an interactional phenomenon, has different psychologies underlying it, and that it operates on different levels. Denial ultimately contributes to a state of continued victimization.


dr. mr. Roland Moerland

    In a much publicised case, Uber drivers have won a first instance employment tribunal finding that they are ‘workers’ and not self-employed contractors. This decision means that they are entitled to basic protections, such as the national minimum wage, paid holiday (under the Working Time Directive) and protection against detriment for ‘blowing the whistle’ on wrong doing. The decision could have substantial financial consequences for Uber, which has around 40,000 drivers in the UK but Uber has already confirmed that it will appeal the decision, so we are unlikely to have a final determination on this question for some time.


Bethan Carney
Bethan Carney is a lawyer at Lewis Silkin LLP: www.lewissilkin.com.
Artikel

2017/9 The influence of the threat of terrorism on the right to strike (NL)

Tijdschrift European Employment Law Cases, Aflevering 1 2017
Trefwoorden Industrial action, Strike
Auteurs Ruben Houweling en Amber Zwanenburg
SamenvattingAuteursinformatie

    The Dutch Cantonal judge prohibited a strike because the safety of passengers could not be guaranteed. At the hearing, which took place a few days after the Berlin Christmas market attacks, weight was given to the threat of terrorism. Nor is this the first time the threat of terrorism has been explicitly referred to by a Dutch court in a case concerning the right to strike.


Ruben Houweling
Ruben Houweling and Amber Zwanenburg are respectively a professor and a lecturer of Labour Law at the Erasmus University Rotterdam.

Amber Zwanenburg
Artikel

Access_open The Demos as a Plural Subject

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 1 2017
Trefwoorden democracy, demos, normativity, Margaret Gilbert, joint commitment
Auteurs Bas Leijssenaar PhD
SamenvattingAuteursinformatie

    Existing conceptualizations of the demos fail to treat issues of composition and performativity consistently. Recent literature suggests that both aspects are required in a satisfactory account of the demos. An analysis of this literature suggests several desiderata that such an account must meet. I approach the definition of demos with a conceptual framework derived from Margaret Gilbert’s plural subject theory of social groups. I propose an account of demos as a plural subject, constituted by joint commitment. This account offers an improved and consistent understanding of normativity, composition, agency, and cohesion of demos.


Bas Leijssenaar PhD
Bas Leijssenaar is PhD-candidate at the Institute of Philosophy, Centre for Social and Political Philosophy of the University of Leuven.

Marieke Borren
Dr. Marieke Borren werkte tot voor kort als postdoctoraal onderzoeker aan de faculteit filosofie van de Universiteit van Pretoria, Zuid-Afrika. Op dit moment is ze UD filosofie aan de Open Universiteit en UD gender en postcolonial studies aan de Universiteit Utrecht.
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