Zoekresultaat: 103 artikelen

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    A number of collective labour agreements unjustifiably have excluded allowances from holiday pay. Recently, social partners have had difficulties in repairing these flaws. Two recent cases demonstrate this, both similar claims but with different outcomes. This leaves social partners with the problem of how to proceed.


Jan-Pieter Vos
Jan-Pieter Vos is a lecturer of Labour Law at the Erasmus University Rotterdam, the Netherlands and editor of EELC.

    The Luxembourg Court of Appeal (Cour d’appel de Luxembourg) confirmed that an employee dismissed with notice and exempted from performing their work during the notice period is no longer bound by the non-competition duties arising from their loyalty obligation and can therefore engage in an employment contract with a direct competitor of their former employer during that exempted notice period. However, the Court of Appeal decided that, even if the former employee is in principle entitled to use the know-how and knowledge they acquired with their former employer, the poaching of clients during the notice period must, due to the facts and circumstances and in the light of the rules applicable in the financial sector, be considered as an unfair competition act and therefore constitutes serious misconduct justifying the termination of the employment contract with immediate effect.


Michel Molitor
Michel Molitor is the managing partner of MOLITOR Avocats à la Cour SARL in Luxembourg, www.molitorlegal.lu.

Régis Muller
Régis Muller is partner within the Employment, Pension & Immigration department of MOLITOR Avocats à la Cour SARL in Luxembourg, www.molitorlegal.lu.
Article

Access_open The Emergence of International Commercial Courts in India: A Narrative for Ease of Doing Business?

Tijdschrift Erasmus Law Review, Aflevering 1 2019
Trefwoorden Commercial contracts, Enforcement, Jurisdiction, Specialized courts, India
Auteurs Sai Ramani Garimella en M.Z. Ashraful
SamenvattingAuteursinformatie

    The liberal globalised order has brought increased focus on the regulation of international commerce, and especially dispute resolution. Enforcement of contracts has been a concern largely owing to the insufficiencies of the legal systems, especially relating to the institutional structure, and it holds true for India as well. The commercial courts mechanism – international and domestic – with innovative features aimed at providing expedited justice is witnessing much traction. India, similar to many other jurisdictions, legislated in favour of specialized dispute resolution mechanisms for commercial disputes that could help improve the procedures for enforcement of contracts. This research attempts to critique the comparable strengths and the reform spaces within the Indian legislation on commercial courts. It parses the status of commercial dispute resolution in India especially in the context of cross-border contracts and critiques India’s attempt to have specialised courts to address commercial dispute resolution.


Sai Ramani Garimella
Sai Ramani Garimella, PhD, is assistant professor of the faculty of legal studies at the South Asian University in New Delhi.

M.Z. Ashraful
M.Z. Ashraful is the research student at South Asian University in New Delhi.

    The German Federal Labour Court (Bundesarbeitsgericht, the ‘BAG’) has held that pre-employment as a freelancer must be taken into account in relation to the number of years having been with a firm as a freelancer when assessing the legality of a fixed-term contract due to the character of the specific deployment.


Sean Illing
Sean Illing is an Associate Solicitor at Lewis Silkin LLP.

    In legal education, criticism is conceived as an academic activity. As lecturers, we expect from students more than just the expression of their opinion; they have to evaluate and criticize a certain practice, building on a sound argumentation and provide suggestions on how to improve this practice. Criticism not only entails a negative judgment but is also constructive since it aims at changing the current state of affairs that it rejects (for some reason or other). In this article, we want to show how we train critical writing in the legal skills course for first-year law students (Juridische vaardigheden) at Vrije Universiteit Amsterdam. We start with a general characterization of the skill of critical writing on the basis of four questions: 1. Why should we train critical writing? 2. What does criticism mean in a legal context? 3. How to carry out legal criticism? and 4. How to derive recommendations from the criticism raised? Subsequently, we discuss, as an illustration to the last two questions, the Dutch Urgenda case, which gave rise to a lively debate in the Netherlands on the role of the judge. Finally, we show how we have applied our general understanding of critical writing to our legal skills course. We describe the didactic approach followed and our experiences with it.


Bart van Klink
Bart van Klink is Professor of Legal Methodology, Department of Legal Theory and History, Faculty of Law, Vrije Universiteit Amsterdam, The Netherlands.

Lyana Francot
Lyana Francot is Associate Professor of Legal Theory, Department of Legal Theory and History, Faculty of Law, Vrije Universiteit Amsterdam, The Netherlands.
Artikel

Gevallen helden van bedrijfsleven en openbaar bestuur

De ‘fall from grace’ van witteboordencriminaliteit

Tijdschrift Tijdschrift over Cultuur & Criminaliteit, Aflevering 2 2018
Trefwoorden white-collar crime, status degradation, sanctioning, executives, punishment
Auteurs Prof. dr. Wim Huisman en Drs. Dennis Lesmeister
SamenvattingAuteursinformatie

    In criminology, it is generally assumed that the high social status of white-collar offenders prevents them of being targeted by criminal law enforcement. But when they do, they suffer greater social and economic damage because of this high social status. Empirical research on the consequences of criminal law enforcement and conviction for white-collar offenders is scarce, and limited to the US and the UK. This paper used biographies of convicted former executives in business and public office in the Netherlands, to analyse these consequences and the process of the ‘fall from grace’ of white-collar offenders. The consequences are described in four life-domains: health, the private sphere, the occupational sphere and the social sphere. The results show that Dutch executives, in line with findings for the Anglo-American white-collar offenders, experience status degradation and suffer much collateral damage of criminal law enforcement. After the initial horror of imprisonment, they endure prison life fairly well. Individual competences and remaining social and economic capital enable them to return to normal life, although they cannot return to pre-conviction levels of social status.


Prof. dr. Wim Huisman
Prof. dr. Wim Huisman is hoogleraar criminologie aan de Vrije Universiteit Amsterdam.

Drs. Dennis Lesmeister
Drs. Dennis Lesmeister is veroordeeld in de Klimop-zaak en is geassocieerd onderzoeker aan de Vrije Universiteit Amsterdam.

    The Court of Appeal has confirmed that an expectation that a disabled employee would work long hours was a ‘provision, criterion or practice’ in a disability discrimination claim regarding reasonable adjustments. It also held that, on the facts, the employer’s conduct had caused the employee to resign and this entitled him to claim constructive unfair dismissal.


Tom McEvoy
Tom McEvoy is an Associate Solicitor at Lewis Silkin LLP.
Artikel

Interventions in High-conflict Divorce Cases: The Parenting Examination

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 4 2018
Trefwoorden Parenting examination, high-conflict divorce, child custody, child access, forensic expert
Auteurs Esther Kluwer en Cees van Leuven
SamenvattingAuteursinformatie

    The Parenting examination (in Dutch: ouderschapsonderzoek) is a method that is used in high-conflict divorces in the Netherlands since 2008, whereby the court appoints a forensic expert who uses mediation and coaching techniques to support the parents to find a solution for their dispute. When parents fail to reach agreement, the forensic expert reports to the judge who can use this information to make a decision. This article discusses the results of two studies that have been conducted to evaluate the effectiveness of the Parenting examination in practice.


Esther Kluwer
Esther Kluwer is professor of Sustainable Relationships and Wellbeing at Radboud University (Nijmegen) and associate professor at the Department of Social Health & Organisational Psychology at Utrecht University.

Cees van Leuven
Cees van Leuven is a judge at the Court of Appeal (‘s-Hertogenbosch) and a lecturer at the Netherlands Training and Study Centre for the Judiciary. He recently published the book ‘Rechter worden, rechter zijn’ (Becoming a judge, being a judge), January 2019.
Article

Access_open Personal Data, Algorithms and Profiling in the EU: Overcoming the Binary Notion of Personal Data through Quantum Mechanics

Tijdschrift Erasmus Law Review, Aflevering 3 2018
Trefwoorden data protection, GDPR, bigdata, algorithm, quantum mechanics
Auteurs Alessandro El Khoury
SamenvattingAuteursinformatie

    In this paper I propose to analyse the binary notion of personal data and highlight its limits, in order to propose a different conception of personal data. From a risk regulation perspective, the binary notion of personal data is not particularly fit for purpose, considering that data collection and information flows are tremendously big and complex. As a result, the use of a binary system to determine the applicability of EU data protection law may be a simplistic approach. In an effort of bringing physics and law together, certain principles elaborated within the quantum theory are surprisingly applicable to data protection law, and can be used as guidance to shed light on many of today’s data complexities. Lastly, I will discuss the implications and the effects that certain processing operations may have on the possibility of qualifying certain data as personal. In other terms, how the chances to identify certain data as personal is dependent upon the processing operations that a data controller might put in place.


Alessandro El Khoury
Alessandro El Khoury, LLM, Legal and Policy Officer, DG Health & Food Safety, European Commission.
Artikel

Een wolf onder de wolven. Ethiek en Ethische Commissies in criminologisch onderzoek naar ‘the powerful’

Tijdschrift Tijdschrift over Cultuur & Criminaliteit, Aflevering 3 2018
Trefwoorden Ethics committees, The powerful, Moral entrepreneurs, Ethics creep, Arms trader
Auteurs Dr. Rita Faria en Dr. Yarin Eski
SamenvattingAuteursinformatie

    For quite some years now, crimes of ‘the powerful’ have been studied by criminologists. While researching crimes of ‘the powerful’, researchers aim to maintain and safeguard their integrity and ethics. However, there seems to be a friction between, on the one hand, ethics of the researchers themselves and on the other hand, ethics (policies) of universities. Obviously, not only do they have to justify their actions and decisions to themselves and ‘science’ as a whole, they must justify their research to ethics committees (EC’s) of universities. It could result in complex and difficult situations when researchers suspect that EC’s themselves may be instruments and products of the powerful groups they are studying. In that case, EC’s might undermine ethics and research integrity themselves. What do certain EC- ‘conditions’ look like for research ethics and to which extent do they have to be adjusted or reconsidered when criminologists are researching ‘the powerful’? The key question that will be answered in this contribution is as follows: how can criminologist (re)act ethically responsibly when confronted with (un)ethical committees? To answer this and other relevant questions, after reviewing literature, we reflect on a biographical study of a legal arms trader. We then elaborate on the ‘ethics creep’ (Haggerty, 2004) that seems to haunt social sciences nowadays.


Dr. Rita Faria
Rita Faria Docent criminologie, University of Porto rfaria@direito.up.pt

Dr. Yarin Eski
Yarin Eski Docent criminologie, Vrije Universiteit Amsterdam y.eski@vu.nl
Article

Access_open Armed On-board Protection of German Ships (and by German Companies)

Tijdschrift Erasmus Law Review, Aflevering 4 2018
Trefwoorden German maritime security, private armed security, privately contracted armed security personnel, anti-piracy-measures, state oversight
Auteurs Tim R. Salomon
SamenvattingAuteursinformatie

    Germany reacted to the rise of piracy around the Horn of Africa not only by deploying its armed forces to the region, but also by overhauling the legal regime concerning private security providers. It introduced a dedicated licensing scheme mandatory for German maritime security providers and maritime security providers wishing to offer their services on German-flagged vessels. This legal reform resulted in a licensing system with detailed standards for the internal organisation of a security company and the execution of maritime security services. Content wise, the German law borrows broadly from internationally accepted standards. Despite deficits in state oversight and compliance control, the licensing scheme sets a high standard e.g. by mandating that a security team must consist of a minimum of four security guards. The lacking success of the scheme suggested by the low number of companies still holding a license may be due to the fact that ship-owners have traditionally been reluctant to travel high-risk areas under the German flag. Nevertheless, the German law is an example of a national regulation that has had some impact on the industry at large.


Tim R. Salomon
The author is a legal adviser to the German Federal Armed Forces (Bundeswehr) and currently seconded to the German Federal Constitutional Court.
Artikel

Access_open Migrant smuggling in the Mediterranean

An excludable act under article 1F(b) Refugee Convention?

Tijdschrift Crimmigratie & Recht, Aflevering 2 2018
Trefwoorden article 1F, Refugee Convention, exclusion clauses, migrant smuggling, serious non-political crimes
Auteurs Anne Aagten LLL.M.
SamenvattingAuteursinformatie

    In 2015, deadly incidents of migrant smuggling in the Mediterranean were daily covered by everyday newspapers. Empirical research has shown that migrants themselves may be involved in these smuggling operations. If they apply for refugee protection, they may be excluded from refugee status under Article 1F of the Refugee Convention. Article 1F(b) excludes asylum seekers from international protection if serious reasons exist to consider that they have committed serious non-political crimes. This contribution discusses whether migrant smuggling can be considered as such and whether various forms of participation in smuggling operations give rise to individual responsibility and trigger application of article 1F(b).


Anne Aagten LLL.M.
A.E.M. Aagten LLL.M. is onderwijs- en onderzoeksmedewerker bij het Instituut voor Immigratierecht (Universiteit Leiden).
Article

Access_open Empirical Legal Research in Europe: Prevalence, Obstacles, and Interventions

Tijdschrift Erasmus Law Review, Aflevering 2 2018
Trefwoorden empirical legal research, Europe, popularity, increase, journals
Auteurs Gijs van Dijck, Shahar Sverdlov en Gabriela Buck
SamenvattingAuteursinformatie

    Empirical Legal research (ELR) has become well established in the United States, whereas its popularity in Europe is debatable. This article explores the popularity of ELR in Europe. The authors carried out an empirical analysis of 78 European-based law journals, encompassing issues from 2008-2017. The findings demonstrate that a supposed increase of ELR is questionable (at best).
    Moreover, additional findings highlight:

    • An increase for a few journals, with a small number of other journals showing a decrease over time;

    • A higher percentage of empirical articles for extra-legal journals than for legal journals (average proportion per journal is 4.6 percent for legal journals, 18.9 percent for extra-legal journals);

    • Criminal justice journals, environmental journals, and economically oriented journals being more likely to publish empirical articles than other journals;

    • More prestigious journals being more likely to publish empirical articles than less-prestigious journals;

    • Older journals being more likely to publish empirical work than younger journals, but not at an increasing rate;

    • Journals being legal/extra-legal, journals in a specific field, journal ranking, or the age of the journal not making it more (or less) likely that the journal will publish empirical articles at an increasing (or decreasing) rate.
      Considering the lack of convincing evidence indicating an increase of ELR, we identify reasons for why ELR is seemingly becoming more popular but not resulting in more empirical research in Europe. Additionally, we explore interventions for overcoming the obstacles ELR currently faces.


Gijs van Dijck
Professor of Private Law at Maastricht University, the Netherlands.

Shahar Sverdlov
Law student at the Vrije Universiteit Amsterdam, the Netherlands.

Gabriela Buck
Law student at Maastricht University, the Netherlands.

    This paper starts by reviewing empirical research that threatens law and economics’ initial success. This research has demonstrated that the functioning of the law cannot be well understood based on the assumption of the rational actor and that policies which are based on this assumption are likely to be flawed. Subsequently, three responses to this criticism are discussed. Whereas the first response denounces this criticism by maintaining that the limitations attributed to the rational actor can easily be incorporated in rational choice theory, the second response welcomes the criticism as an opportunity to come up with an integrative theory of law and behavior. The third response also takes the criticism seriously but replaces the aspiration to come up with such an integrative theory by a context-sensitive approach. It will be argued that the first two responses fall short while the third response offers a promising way to go forward.


Peter Mascini
Prof. dr. P. Mascini, Erasmus School of Law and Erasmus School of Social and Behavioural Sciences, Erasmus University Rotterdam.
Artikel

Promoting Conciliation and Mediation in Collective Labour Conflicts in Europe

Celebrating 50 years of Federal Mediation Services in Belgium

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 1 2018
Trefwoorden Mediation, conciliation, collective labour conflict, strikes
Auteurs Ana Belén García, Erica Pender, Francisco J. Medina e.a.
SamenvattingAuteursinformatie

    On 23 April 2018, the Belgian Ministry of Labour, together with a consortium of 12 European research institutes, held a symposium on the current state of the art and best practices for conciliation and mediation in collective labour conflicts within the European Union, and particularly in Belgium. The symposium was organized for two occasions. First, the 50st anniversary of the Belgium law, providing mediation services by the Ministry of Labour to prevent and mediate in collective labour conflicts. Second, the presentation of the results of an EU (DG Employment, Social Affairs and Inclusion) sponsored project in 12 EU member states.
    The management of collective labour conflicts is in all countries regulated differently. The study shows that also practices of third party intervention differ largely. Most countries differentiate conciliation (a relative informal process of facilitated negotiation), mediation (usually defined as a strong involvement of the third party, who gives recommendations to the parties), and arbitration. Mediators typically are not trained, certified or registered as mediators in most countries. In all countries there is a large potential for conciliation, particularly in early stages of conflict (preventive mediation), as well as in rebuilding of trust after conflict episodes. More details in open access book: Mediation in collective labor conflicts (Springer, 2018).


Ana Belén García
Ana Belén García is senior researcher at the University of Seville and KU Leuven, working in the departments of work and organizational psychology. She was coordinator of several EU funded research programs on social dialogue in organisations. The most recent project was on mediation in collective labor conflicts in 12 EU member states. Ana’s interest is on conflict management and mediation in organizations. She was editor of two handbooks in the Springer Series ‘Industrial relations and conflict management’. Ana holds a PhD in Psychology and HRM from the University of Seville and KU Leuven. She is also a registered mediator.

Erica Pender
Erica Pender is a mediator and senior researcher at the University of Seville and KU Leuven in the department of Work and Organizational Psychology. She holds a PhD in Psychology from the University of Seville and KU Leuven focusing on trust and trustworthiness in organizations. After studying psychology at the University of Seville, she obtained her MSc at Maastricht University. She has coordinated two large-scale projects for the European Commission, and was co-editor of two handbooks in the Springer Series ‘Industrial relations and conflict management’.

Francisco J. Medina
Fransisco J. Medina is professor in social and organizational psychology, and Dean of the Faculty of Psychology and Educational sciences, at the University of Seville, Spain. His interests are conflict management, mediation and organizational development. He is engaged for many years in the development of labor mediation in Spain, providing training for mediators. He is also an experienced consultant and mediator. Francisco published both internationally and in Spanish extensively on conflict management and mediation.

Martin Euwema
Martin Euwema is professor in organizational psychology, and chair of the research group Organizational and Occupational Psychology and Professional Learning at KU Leuven, Belgium. He is also co-director of the Leuven Center for Collaborative Management and visiting professor at University of Copenhagen, IESEG-Paris, Sevilla, and Tsinghua (Beijing). He has extensive experience as consultant and mediator for both profit and non-profit organizations. His fields of expertise are conflict management, mediation, leadership, and organizational and team development.
Staatssteun

Het FIH-arrest: over de toepassing van het ‘Market Economy Operator Principle’

Tijdschrift Nederlands tijdschrift voor Europees recht, Aflevering 3-4 2018
Trefwoorden staatssteun aan banken, niet-marktconform voordeel, beginsel van de particuliere marktdeelnemer, Market Economy Operator Principle
Auteurs Mr. dr. R.E. van Lambalgen
SamenvattingAuteursinformatie

    De vraag of een bepaalde maatregel staatssteun vormt, wordt onder meer beoordeeld aan de hand van het beginsel van de particuliere marktdeelnemer. Bij de toepassing van dit beginsel mag geen rekening worden gehouden met de risico’s die voortvloeien uit eerdere staatssteunmaatregelen. Tot dit oordeel kwam het Hof van Justitie in het arrest van 6 maart 2018 in zaak C-579/16P, FIH.
    HvJ 6 maart 2018, zaak C-579/16P, Europese Commissie/FIH Holding A/S en FIH Erhvervsbank A/S, ECLI:EU:C:2018:159


Mr. dr. R.E. van Lambalgen
Mr. dr. R.E. (Randolf) van Lambalgen is werkzaam bij het Kifid en tevens verbonden aan Erasmus School of Law van de Erasmus Universiteit Rotterdam.
Artikel

Access_open Crisis in the Courtroom

The Discursive Conditions of Possibility for Ruptures in Legal Discourse

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 1 2018
Trefwoorden crisis discourse, rupture, counterterrorism, precautionary logic, risk
Auteurs Laura M. Henderson
SamenvattingAuteursinformatie

    This article addresses the conditions of possibility for the precautionary turn in legal discourse. Although the precautionary turn itself has been well-detailed in both legal and political discourse, insufficient attention has been paid to what made this shift possible. This article remedies this, starting by showing how the events of 9/11 were unable to be incorporated within current discursive structures. As a result, these discursive structures were dislocated and a new ‘crisis discourse’ emerged that succeeded in attributing meaning to the events of 9/11. By focusing on three important cases from three different jurisdictions evidencing the precautionary turn in legal discourse, this article shows that crisis discourse is indeed employed by the judiciary and that its logic made this precautionary approach to counterterrorism in the law possible. These events, now some 16 years ago, hold relevance for today’s continuing presence of crisis and crisis discourse.


Laura M. Henderson
Laura M. Henderson is a researcher at UGlobe, the Utrecht Centre for Global Challenges, at Utrecht University. She wrote this article as a Ph.D. candidate at the Vrije Universiteit Amsterdam.

    In May 2017, the Ogiek indigenous community of Kenya successfully challenged the denial of their land and associated rights before the African Court of Human and Peoples Rights (‘the Court’). In the first indigenous peoples’ rights case considered the Court, and by far the largest ever case it has had to consider, the Court found violations of Articles 1, 2, 8, 14, 17 (2) and (3), 21 and 22 of the African Charter on Human and Peoples’ Rights (‘the African Charter’). It therefore created a major legal precedent. In addition, the litigation itself and Ogiek’s participation in the various stages of the legal process provided a model for community engagement, through which the Ogiek were empowered to better understand and advocate for their rights. This article will first explain the history of the case and the Court’s findings, and then move on to examine in further detail methods employed to build the Ogiek’s capacity throughout, and even beyond, the litigation.


Lucy Claridge
Legal Director, Minority Rights Group International.

Dr. Beatriz Barreiro Carril
Lecturer of International Law (Rey Juan Carlos University).

    The judgment of the Inter-American Court of Human Rights in the case of Kaliña and Lokono Peoples v. Suriname is noteworthy for a number of reasons. Particularly important is the Court’s repeated citation and incorporation of various provisions of the 2007 United Nations Declaration on the Rights of Indigenous Peoples into its interpretation of the American Convention on Human Rights. This aids in greater understanding of the normative value of the Declaration’s provisions, particularly when coupled with the dramatic increase in affirmations of that instrument by UN treaty bodies, Special Procedures and others. The Court’s analysis also adds detail and further content to the bare architecture of the Declaration’s general principles and further contributes to the crystallisation of the discrete, although still evolving, body of law upholding indigenous peoples’ rights. Uptake of the Court’s jurisprudence by domestic tribunals further contributes to this state of dynamic interplay between sources and different fields of law.


Fergus MacKay JD
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