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Article

Access_open Mechanisms for Correcting Judicial Errors in Germany

Tijdschrift Erasmus Law Review, Aflevering 4 2020
Trefwoorden criminal proceedings, retrial in favour of the convicted, retrial to the disadvantage of the defendant, Germany, judicial errors
Auteurs Michael Lindemann en Fabienne Lienau
SamenvattingAuteursinformatie

    The article presents the status quo of the law of retrial in Germany and gives an overview of the law and practice of the latter in favour of the convicted and to the disadvantage of the defendant. Particularly, the formal and material prerequisites for a successful petition to retry the criminal case are subject to a detailed presentation and evaluation. Because no official statistics are kept regarding successful retrial processes in Germany, the actual number of judicial errors is primarily the subject of more or less well-founded estimates by legal practitioners and journalists. However, there are a few newer empirical studies devoted to different facets of the subject. These studies will be discussed in this article in order to outline the state of empirical research on the legal reality of the retrial procedure. Against this background, the article will ultimately highlight currently discussed reforms and subject these to a critical evaluation as well. The aim of the recent reform efforts is to add a ground for retrial to the disadvantage of the defendant for cases in which new facts or evidence indicate that the acquitted person was guilty. After detailed discussion, the proposal in question is rejected, inter alia for constitutional reasons.


Michael Lindemann
Michael Lindemann is Professor for Criminal Law, Criminal Procedure and Criminology at the Faculty of Law of Bielefeld University, Germany.

Fabienne Lienau
Fabienne Lienau is Research Assistant at the Chair held by Michael Lindemann.
Article

Access_open Due Diligence and Supply Chain Responsibilities in Specific Instances

The Compatibility of the Dutch National Contact Point’s Decisions With the OECD Guidelines for Multinational Enterprises in the Light of Decisions Made by the UK, German, Danish and Norwegian National Contact Points

Tijdschrift Erasmus Law Review, Aflevering 4 2019
Trefwoorden due diligence, supply chain, OECD, NCP, specific instance
Auteurs Sander van ’t Foort
SamenvattingAuteursinformatie

    Since the introduction of a human rights chapter in the 2011 OECD Guidelines for Multinational Enterprises, National Contact Points (NCPs) have been increasingly dealing with specific instances referring to human rights violations by companies. According to the Organisation for Economic Cooperation and Development (OECD), the human rights provisions are the most cited provisions of the Guidelines. Specific instances include allegations such as a company’s failure to implement human rights due diligence, to apply the principles of free, prior and informed consent, to take supply chain responsibility, and/or to comply with the right to cultural heritage. Of all topics, human rights due diligence and human rights supply chain responsibilities are most commonly referred to in complaints based on the Guidelines. This article focuses on how NCPs have handled these topics of human rights due diligence and supply chain responsibility in specific instances. The Dutch NCP has been selected because it is celebrated in literature as the ‘gold standard’ because of its composition including independent members, its forward-looking approach, and because it is one of the most active NCPs in the world. All decisions of the Dutch NCP concerning these two topics are analysed in the light of the decisions of four other NCPs (UK, Denmark, Germany and Norway). A doctrinal methodology is used to analyse similarities and differences between the argumentations of the five NCPs.


Sander van ’t Foort
Dr. Sander van ’t Foort is Lecturer at the Nyenrode Business Universiteit in the Netherlands.

Prof. Arnaud de Graaf
Erasmus School of Law, Erasmus University Rotterdam.

Prof. dr. Klaus Heine
Erasmus School of Law, Tax Law Department, Erasmus University Rotterdam.
Article

Access_open The Economics and Empirics of Tax Competition: A Survey and Lessons for the EU

Tijdschrift Erasmus Law Review, Aflevering 1 2014
Trefwoorden tax competition, tax coordination, European Union, fiscal federalism
Auteurs Thushyanthan Baskaran Ph.D. en Mariana Lopes da Fonseca
SamenvattingAuteursinformatie

    We survey the theoretical and empirical literature on local and international tax competition in Economics. On the basis of this survey, we discuss whether EU countries should harmonise tax policies to prevent a race to the bottom. Much of the evidence suggests that tax competition does not lead to significant reductions in tax revenues. Therefore, we conclude that tax coordination is in all likelihood unnecessary to prevent inefficiently low levels of taxation in the EU. But since the evidence against the adverse effects of tax competition is not unambiguous, we also discuss whether intergovernmental transfers might be a less invasive means than outright tax harmonisation to prevent a race to the bottom.


Thushyanthan Baskaran Ph.D.
University of Goettingen, Germany.

Mariana Lopes da Fonseca
University of Goettingen, Germany.
Article

Access_open An Eclectic Approach to Loyalty-Promoting Instruments in Corporate Law: Revisiting Hirschman's Model of Exit, Voice, and Loyalty

Tijdschrift Erasmus Law Review, Aflevering 2 2013
Trefwoorden Eclecticism, corporate law & economics, corporate constitutionalism, loyalty-promoting instruments
Auteurs Bart Bootsma MSc LLM
SamenvattingAuteursinformatie

    This essay analyses the shareholder role in corporate governance in terms of Albert Hirschman's Exit, Voice, and Loyalty. The term 'exit' is embedded in a law & economics framework, while 'voice' relates to a corporate constitutional framework. The essay takes an eclectic approach and argues that, in order to understand the shareholder role in its full breadth and depth, the corporate law & economics framework can 'share the analytical stage' with a corporate constitutional framework. It is argued that Hirschman's concept of 'loyalty' is the connecting link between the corporate law & economics and corporate constitutional framework. Corporate law is perceived as a Janus head, as it is influenced by corporate law & economics as well as by corporate constitutional considerations. In the discussion on the shareholder role in public corporations, it is debated whether corporate law should facilitate loyalty-promoting instruments, such as loyalty dividend and loyalty warrants. In this essay, these instruments are analysed based on the eclectic approach. It is argued that loyalty dividend and warrants are law & economics instruments (i.e. financial incentives) based on corporate constitutional motives (i.e. promoting loyalty in order to change the exit/voice mix in favour of voice).


Bart Bootsma MSc LLM
PhD candidate in the corporate law department at Erasmus School of Law, Erasmus University Rotterdam. Email: bootsma@law.eur.nl. The research for this article has been supported by a grant from the Netherlands Organisation for Scientific Research (NWO) in the Open Competition in the Social Sciences 2010. The author is grateful to Ellen Hey, Klaus Heine, Michael Faure, Matthijs de Jongh and two anonymous reviewers for their constructive comments and suggestions. The usual disclaimer applies.

Klaus Heine
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