Zoekresultaat: 27 artikelen

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Article

Access_open Access and Reuse of Machine-Generated Data for Scientific Research

Tijdschrift Erasmus Law Review, Aflevering 2 2019
Trefwoorden machine-generated data, Internet of Things, scientific research, personal data, GDPR
Auteurs Alexandra Giannopoulou
SamenvattingAuteursinformatie

    Data driven innovation holds the potential in transforming current business and knowledge discovery models. For this reason, data sharing has become one of the central points of interest for the European Commission towards the creation of a Digital Single Market. The value of automatically generated data, which are collected by Internet-connected objects (IoT), is increasing: from smart houses to wearables, machine-generated data hold significant potential for growth, learning, and problem solving. Facilitating researchers in order to provide access to these types of data implies not only the articulation of existing legal obstacles and of proposed legal solutions but also the understanding of the incentives that motivate the sharing of the data in question. What are the legal tools that researchers can use to gain access and reuse rights in the context of their research?


Alexandra Giannopoulou
Institute for Information Law (IViR) – University of Amsterdam.
Artikel

Researching elites at the margins of research ethics frameworks

Tijdschrift Tijdschrift over Cultuur & Criminaliteit, Aflevering 2 2019
Trefwoorden code of ethics, corporate crime, research ethics, gaining access, interviewing elites
Auteurs Daniel Beizsley PhD
SamenvattingAuteursinformatie

    For social scientists undertaking critical research on elites in organisational contexts securing access is a challenging exercise that may rely on the use of several access strategies over extended periods. This process is further complicated by the existence of research ethics frameworks that establish boundaries to access strategies, posing dilemmas on how to best balance access needs with a commitment to ethical practices. This article focuses on such dilemmas – or the ‘ethics of access’ – through a reflection on PhD fieldwork during 2016-2017 in Luxembourg spent researching the European Investment Bank. The paper will conclude by calling for an overhaul of existing frameworks in order to foster more research on elites.


Daniel Beizsley PhD
Daniel Beizsley is a PhD candidate on the European Commission funded Doctorate in Cultural and Global Criminology (DCGC) programme supervised by Utrecht University and ELTE University.
Article

Access_open The Brussels International Business Court: Initial Overview and Analysis

Tijdschrift Erasmus Law Review, Aflevering 1 2019
Trefwoorden international jurisdiction, English, court language, Belgium, business court
Auteurs Erik Peetermans en Philippe Lambrecht
SamenvattingAuteursinformatie

    In establishing the Brussels International Business Court (BIBC), Belgium is following an international trend to attract international business disputes to English-speaking state courts. The BIBC will be an autonomous business court with the competence to settle, in English, disputes between companies throughout Belgium. This article focuses on the BIBC’s constitutionality, composition, competence, proceedings and funding, providing a brief analysis and critical assessment of each of these points. At the time of writing, the Belgian Federal Parliament has not yet definitively passed the Bill establishing the BIBC, meaning that amendments are still possible.


Erik Peetermans
Erik Peetermans is a legal adviser at the Federation of Enterprises in Belgium (FEB).

Philippe Lambrecht
Philippe Lambrecht is the Director-Secretary General at the Federation of Enterprises in Belgium (FEB).

    In 2016 the Dutch Government Commission of Reassessment of Parenthood (GCRP) proposed a wide array of legal changes to Family Law, e.g. with regard to legal multi-parenthood and legal multiple parental responsibility. Although the commission researched these matters thoroughly in its quest towards proposing new directions in the field of Family Law, multi-parents themselves were not interviewed by the commission. Therefore, this article aims to explore a possible gap between the social experiences of parents and the recommendations of the GCRP. Data was drawn from in depth-interviews with a sample of 25 parents in plus-two-parent constellations living in Belgium and the Netherlands. For the most part the social experiences of parents aligned with the ways in which the GCRP plans to legally accommodate the former. However, my data tentatively suggests that other (legal) recommendations of the GCRP need to be explored more in depth.
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    In 2016 stelde de Nederlandse Staatscommissie Herijking ouderschap voor om een wettelijk kader te creëren voor meerouderschap en meeroudergezag. Ondanks de grondigheid van het gevoerde onderzoek ontbraken er gegevens omtrent de ervaringen van de meerouders zelf. Dit artikel levert een bijdrage in het vullen van deze leemte door inzage te geven in de (juridische) ervaringen van 25 ouders in meerouderschapsconstellaties in België en Nederland.


Nola Cammu MA
Nola Cammu is PhD Candidate at the Law Faculty of the University of Antwerp.
Artikel

Access_open The Enemy of All Humanity

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2018
Trefwoorden hostis generis humani, piracy, crimes against humanity, universal jurisdiction, radical evil
Auteurs David Luban
SamenvattingAuteursinformatie

    Trationally, the term “enemy of all humanity” (hostis generis humani) referred to pirates. In contemporary international criminal law, it refers to perpetrators of crimes against humanity and other core. This essay traces the evolution of the concept, and then offers an analysis that ties it more closely to ancient tyrants than to pirates. Some object that the label is dehumanizing, and justifies arbitrary killing of the “enemy of humanity.” The essay admits the danger, but defends the concept if it is restricted to fair trials. Rather than dehumanizing its target, calling the hostis generis humani to account in a court of law is a way of recognizing that radical evil can be committed by humans no different from any of us.


David Luban
David Luban is University Professor in Law and Philosophy at Georgetown University.

    In the process of adjudication and litigation, indigenous peoples are usually facing a very complex and demanding process to prove their rights to their lands and ancestral territories. Courts and tribunals usually impose a very complex and onerous burden of proof on the indigenous plaintiffs to prove their rights over their ancestral territories. To prove their rights indigenous peoples often have to develop map of their territories to prove their economic, cultural, and spiritual connections to their territories. This article reflects on the role played by the mapping of indigenous territories in supporting indigenous peoples’ land claims. It analyses the importance of mapping within the process of litigation, but also its the impact beyond the courtroom.


Jeremie Gilbert PhD
Jeremie Gilbert is professor of Human Rights Law, University of Roehampton.

Ben Begbie-Clench
Ben Begdie-Clench is a consultant working with San communities in southern Africa.
Article

Access_open An Empirical Study of the Voting Pattern of Judges of the International Court of Justice (2005-2016)

Tijdschrift Erasmus Law Review, Aflevering 3 2017
Trefwoorden voting pattern, ICJ judges, empirical research
Auteurs Xuechan Ma en Shuai Guo
SamenvattingAuteursinformatie

    The Statute of the International Court of Justice stipulates that judges shall exercise their powers impartially. We question the practicability of this statement and examine whether the voting pattern of the judges are biased. In this light, empirical research is conducted on cases adjudicated from 2005 to 2016. We find strong evidence that (1) judges favour their home States or appointing States; and (2) judges favour States that speak same majority language with their home States.


Xuechan Ma
Xuechan Ma, Ph.D. candidate at Leiden University, LL.M. and LL.B. at Peking University. Email address: x.ma@law.leidenuniv.nl.

Shuai Guo
Shuai Guo, Ph.D. candidate at Leiden University, LL.M. and LL.B. at China University of Political Science and Law. Email address: s.guo@law.leidenuniv.nl.
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

Access_open E pluribus unum? The Manifold Meanings of Sovereignty

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2016
Trefwoorden political sovereignty, power, legislative sovereignty, constitutive power, external sovereignty
Auteurs Raf Geenens
SamenvattingAuteursinformatie

    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.

    In this article I argue that the major issue in taxonomies of interdisciplinary research is the problem of authority. In a project on the needs of Aboriginal Australians in inheritance, involving interdisciplinary research using law (in both common law and customary law form) and anthropology, issues of translateability and truth/validity arose. Issues for the Aboriginal people included problems of identifying the correct kin, dealing with the body, and protecting customary law information and secrecy, all matters which the customary law could handle but which were not recognised by Australian common law. Because the characterization of these matters in law is often characterized as a problem of authority the article explores the various different ways forms of authority in law and anthropology exist and how they might clash. Because the anthropology concerned was about Aboriginal Customary Law there seemed to be a double problem of authority which needed to be resolved in order to ensure that the connections between the disciplines were clear and the inheritance issues could be resolved.


Prue Vines
Professor, Director of First Year Studies, Co-Director, Private Law Research & Policy Group Faculty of Law, The University of New South Wales, Sydney, Australia. Email: p.vines@unsw.edu.au.
Artikel

Consumer Dispute Resolution (CDR) in Europe

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 2 2014
Trefwoorden Consumer Dispute Resolution, CDR, national cultures, CDR-models
Auteurs Naomi Creutzfeldt en Christopher Hodges
SamenvattingAuteursinformatie

    This paper is a combination of the ‘Oxford study 2012’ (C. Hodges, I. Benöhr & N. Creutzfeldt-Banda, Consumer ADR in Europe, Oxford: Hart Publishing 2012) and subsequent publications about consumer dispute resolution in Europe. Recent EU legislation aims to establish a EU-wide framework for consumer alternative dispute resolution (CADR or CDR) schemes and a platform for online dispute resolution (ODR). This forces member states to revisit their existing CDR models and in some cases, to modernize their structures. Many member states face challenges of reform of existing systems by the directives implementation date of 2015. This paper will provide an overview of CDR, the development of current legislation and discuss some national examples. The paper concludes with comments about implementation of the directive and potential future direction.


Naomi Creutzfeldt
Naomi Creutzfeldt is ESRC Research Fellow at the Center for Socio-Legal Studies, University of Oxford.

Christopher Hodges
Christopher Hodges is Head of the CMS/Swiss Re Research Programme on Civil Justice Systems, Centre for Socio-Legal Studies, University of Oxford; Erasmus Professor of the Fundamentals of Private Law, Erasmus University, Rotterdam; Honorary Professor of the China University of Political Science and Law, Beijing; Guest Professor of Wuhan University, Wuhan; Life Member of Wolfson College, Oxford; Solicitor of the Senior Courts of England & Wales. Research funding is received from the international law firm CMS, the European Justice Forum and Swiss Reinsurance Company Limited.

    This article discusses the possibility spouses have under the Rome III Regulation (EC Regulation 1259/2010) to choose the law applicable to their divorce. It discusses the limits and exceptions of this freedom to choose.


Dr. Thalia Kruger
Thalia Kruger is professor at the law faculty of the University of Antwerp, where she teaches and researches private international law, international civil procedure and international family law. She is also Honorary Research Associate at the University of Cape Town.
Article

Access_open Offer and Acceptance and the Dynamics of Negotiations: Arguments for Contract Theory from Negotiation Studies

Tijdschrift Erasmus Law Review, Aflevering 2 2013
Trefwoorden Contract Formation, Offer and Acceptance, Negotiation, Precontractual, UNIDROIT Principles of International Commercial Contracts
Auteurs Ekaterina Pannebakker LL.M.
SamenvattingAuteursinformatie

    The doctrine of offer and acceptance forms the basis of the rules of contract formation in most western legal systems. However, if parties enter into elaborate negotiations, these rules may become difficult to apply. This paper addresses the application of the doctrine of offer and acceptance to the formation of contract in the context of negotiations. The paper argues that while the doctrine of offer and acceptance is designed to assess the issues related to the substance of the future eventual contract (the substantive constituent of negotiations), these issues overlap within the context of negotiations with the strategic and tactical behaviour of the negotiators (dynamic constituent of negotiations). Analysis of these two constituents can be found in negotiation studies, a field which has developed over the last decades. Using the rules of offer and acceptance of the UNIDROIT Principles of International Commercial Contracts as an example, this paper shows that the demarcation between the substantive and the dynamic constituents of negotiations can be used as the criterion to distinguish between, on the one hand, the documents and conduct forming a contract, and, on the other hand, other precontractual documents and conduct. Furthermore, the paper discusses the possibility of using the structure of negotiation described by negotiation studies as an additional tool in the usual analysis of facts in order to assess the existence of a contract and the moment of contract formation.


Ekaterina Pannebakker LL.M.
PhD candidate, Erasmus School of Law, Erasmus University Rotterdam. I thank Sanne Taekema and Xandra Kramer for their valuable comments on the draft of this article, and the peer reviewers for their suggestions. The usual disclaimer applies.
Artikel

Access_open Private law and ethical life

Honneth on legal freedom and its pathologies

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2013
Trefwoorden Honneth, Hegel, social freedom, legal freedom, law, pathologies
Auteurs Jan Ph. Broekhuizen
SamenvattingAuteursinformatie

    In Das Recht der Freiheit Axel Honneth develops his concept of social freedom. In this article I discuss Honneth’s project and critique one of its crucial aspects: Honneth’s views on the disruptive role of legal freedom in our society and its dependent relation to the sphere of social freedom. I argue that in his attempt in Das Recht der Freiheit to reactualize Hegel’s discourse on the realization of freedom for our time, Honneth risks mistranslating Hegel’s discourse of ‘right’ by denying the sphere of legal relations a constitutive role for true freedom, and that because of this Honneth’s own theory of social freedom suffers: it becomes less clear whether it can still offer helpful insights into the proper place of legal freedom in our society.


Jan Ph. Broekhuizen
Jan Broekhuizen is an attorney (advocaat) in Amsterdam and a deputy judge at the Court of Appeals in Den Bosch (the Netherlands). He holds degrees in both law and philosophy.
Artikel

Het nieuwe CEPANI Mediatiereglement van 2013

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 1 2013
Trefwoorden CEPANI, CEPINA, arbitration rules, domain names
Auteurs Herman Verbist en Luc Demeyere
SamenvattingAuteursinformatie

    On 1 January 2013 the new Mediation Rules of CEPANI (the Belgian Center for Arbitration and Mediation) entered into force. The 2013 CEPANI Mediation Rules replace the 2005 version of the CEPANI Mediation Rules and also the 2010 version of the CEPANI ICT (Information and Communication Technology) Mediation Rules. The 2013 Rules contain provisions on the introduction of the mediation, the appointment of the mediator, the mediation protocol to be established at the beginning of the mediation process, the conduct of the mediation, the confidentiality, the end of the mediation and its costs. The authors comment on these various provisions of the CEPANI Mediation Rules and explain thereby also the relevant provisions of the Belgian Mediation Law contained in Chapter VII of the Belgian Judicial Code.


Herman Verbist
Herman Verbist is advocaat aan de Balie te Gent en te Brussel, werkzaam bij Everest Advocaten, gastdocent aan de Universiteit Gent, erkend bemiddelaar en redacteur van dit tijdschrift.

Luc Demeyere
Luc Demeyere is advocaat aan de Balie te Antwerpen, werkzaam bij Contrast, erkend bemiddelaar en redacteur van dit tijdschrift.
Article

Access_open Between a Rock and a Hard Place: Treaty-Based Settlement of Terrorism-Related Disputes in the Era of Active United Nations Security Council Involvement

Tijdschrift Erasmus Law Review, Aflevering 2 2013
Trefwoorden Terrorism, inter-state dispute, international treaties, the United Nations Security Council, the International Court of Justice
Auteurs Nathanael Tilahun Ali LL.M.
SamenvattingAuteursinformatie

    The United Nations Security Council has become a crucial actor in international counterterrorism by not only spurring the taking of preventive and suppressive measures against terrorist individuals and groups, but also by taking actions against states that are said to stand in the way. The Security Council's actions against such states invariably arise from accusations by other states, such as accusations of refusal to extradite suspects of terrorism or responsibility for supporting terrorists. Meanwhile, most such issues of dispute are covered under international treaties relating to terrorism, which provide for political (negotiation) and judicial (arbitration and adjudication) mechanisms of dispute settlement. The Security Council's actions against states in connection with terrorism, therefore, involve (explicit or implicit) factual and legal determinations that affect the legal positions of the disputing states under the applicable international treaties relating to terrorism. The point of departure of this paper is that, in this respect, the Security Council effectively becomes an alternative to the treaty-based dispute-settlement mechanisms. The article centrally contends that the Security Council effectively acts as a more attractive alternative to treaty-based dispute-settlement mechanisms for pursuing terrorism-related (legal) disputes between states, without providing a meaningful platform of disputation that is based on equality of the parties. And the Security Council's relative attractiveness, arising from the discursive and legal superiority its decisions enjoy and the relative convenience and expediency with which those decisions are delivered, entails the rendering of resort to treaty-based dispute-settlement mechanisms of little legal consequence. The point of concern the article aims to highlight is the lack of platform of disputation some states are faced with, trapped between a hostile Security Council that makes determinations and decisions of legal consequence and an unhelpful treaty-based dispute-settlement mechanism.


Nathanael Tilahun Ali LL.M.
PhD Candidate in public international law, Erasmus School of Law. E: ali@law.eur.nl. I would like to thank Prof. Xandra Kramer and Prof. Ellen Hey for their valuable comments on an earlier draft of this article. The usual disclaimer applies.
Artikel

Access_open De liberale canon: argumenten voor vrijheid

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2012
Trefwoorden enforcement of morals, liberalism, liberty, political liberalism, Rawls
Auteurs Alex Bood
SamenvattingAuteursinformatie

    This article examines how a liberal public morality can be most successfully defended against perfectionism. First of all the five most important liberal arguments for freedom are taken from what is called the liberal canon: a number of characteristic works of John Locke, Immanuel Kant, John Stuart Mill, Isaiah Berlin, Joseph Raz, Ronald Dworkin, and John Rawls. These five arguments are identified as: social and political realism, respect for autonomy, fallibility of ideas, pluralism, and respect for reasonableness. Next, the persuasiveness of these arguments is assessed, starting with the argument of respect for reasonableness, which is at the heart of Rawls’s political liberalism. It is concluded that in itself this argument is not strong enough to persuade perfectionists. A powerful defence of a liberal public morality needs the other arguments for freedom as well. Finally, the paper outlines how these other arguments can strengthen the argument of respect for reasonableness in a coherent manner.


Alex Bood
Alex Bood is Research Manager at the Dutch Public Prosecution’s Office for Criminal Law Studies (WBOM).
Artikel

Access_open Globalization as a Factor in General Jurisprudence

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2012
Trefwoorden general jurisprudence, globalization, global legal pluralism, legal positivism, analytical jurisprudence
Auteurs Sidney Richards
SamenvattingAuteursinformatie

    Globalization is commonly cited as an important factor in theorising legal phenomena in the contemporary world. Although many legal disciplines have sought to adapt their theories to globalization, progress has been comparatively modest within contemporary analytical jurisprudence. This paper aims to offer a survey of recent scholarship on legal theory and globalization and suggests various ways in which these writings are relevant to the project of jurisprudence. This paper argues, more specifically, that the dominant interpretation of globalization frames it as a particular form of legal pluralism. The resulting concept – global legal pluralism – comes in two broad varieties, depending on whether it emphasizes normative or institutional pluralism. This paper goes on to argue that these concepts coincide with two central themes of jurisprudence, namely its concern with normativity and institutionality. Finally, this paper reflects on the feasibility of constructing a ‘general’ and ‘descriptive’ jurisprudence in light of globalization.


Sidney Richards
Sidney Richards is Doctoral candidate in Law at Pembroke College at the University of Cambridge.
Artikel

Access_open Legal Doctrine As a Non-Normative Discipline

A Refinement of Niiniluoto’s and Aarnio’s Distinction between Norm-Descriptions, Norm-Contentions and Norm-Recommendations

Tijdschrift Law and Method, januari 2012
Trefwoorden legal doctrine as a science, non-normative discipline, norm-descriptions, norm-contentions, norm-recommendations, Aarnio and Niiniluoto
Auteurs Anne Ruth Mackor
SamenvattingAuteursinformatie

    In this article, the author argues that legal doctrine is not more normative than other scientific disciplines. This argumentation is built on the claim that the distinction between descriptive and normative statements is too simple to analyze the nature of legal doctrine. In the author’s view, a more detailed analysis of legal statements helps to achieve a better and more accurate characterization of legal doctrine as a science. For this purpose, the author builds on the distinction of Aarnio and Niiniluoto between norm-descriptions, norm-contentions and norm-recommendations. She argues that legal doctrine consists mainly of empirical and non-empirical norm-descriptions and that it can therefore be considered as a non-normative discipline.


Anne Ruth Mackor
Anne Ruth Mackor is professor of professional ethics, in particular of legal professions, at the Faculty of Law and Socrates professor of professional ethics at the Faculties of Theology and Philosophy at the University of Groningen.
Discussie

Access_open The Destruction and Reconstruction of the Tower of Babel

A Comment to Gunther Teubner’s Plea for a ‘Common Law Constitution’

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2011
Trefwoorden global society, constitutionalism, social systems theory, Teubner, law and order
Auteurs Bart van Klink
SamenvattingAuteursinformatie

    This article presents some critical comments concerning the conceptual, normative and institutional foundations of Teubner’s plea for a ‘common law constitution’. My comments question the desirability of the means chosen for attaining this objective as well as their efficacy. In particular, I have difficulties with the ambivalent role that is assigned to man, either as a person or as a human being; with the reduction of social problems to problems of communication; and, finally and most importantly, with the attempt to conceive of law and politics beyond established legal and political institutions, which in my view is doomed to fail. The conclusion offers some tentative suggestions for an alternative approach.


Bart van Klink
Bart van Klink is Professor of Legal Methodology at the Faculty of Law of the VU University Amsterdam, the Netherlands.
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