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Tijdschrift Erasmus Law Review x Jaar 2019 x
Article

Access_open On the Eve of Web-Harvesting and Web-Archiving for Libraries in Greece

Tijdschrift Erasmus Law Review, Aflevering 2 2019
Trefwoorden web harvesting, data analysis, text & data mining, TDM: Proposal EU Copyright Directive
Auteurs Maria Bottis, Marinos Papadopoulos, Christos Zampakolas e.a.
SamenvattingAuteursinformatie

    This conference paper submitted on the occasion of the 8th International Conference on Information Law and Ethics (University of Antwerp, December 13-14, 2018) that focused on modern intellectual property governance and openness in Europe elaborates upon the Text and Data Mining (TDM) issue in the field of scientific research, which is still-by the time of composition of this paper-in the process of discussion and forthcoming voting before the European Parliament in the form of provision(s) included in a new Directive on Copyright in the Digital Single Market. TDM is included in the proposal for a Directive of the European parliament and of the Council on copyright in the Digital Single Market-Proposal COM(2016)593 final 2016/0280(COD) that was submitted to the European Parliament.


Maria Bottis
Associate Professor, Department of Archives, Library Science and Museology, Ionian University, Corfu, Greece.

Marinos Papadopoulos
Attorney-at-Law, Independent Researcher, PhD, MSc, JD, Athens, Greece.

Christos Zampakolas
Archivist/Librarian, Independent Researcher, PhD, MA, BA, Ioannina, Greece.

Paraskevi Ganatsiou
Educator, MA, BA, Prefecture of Ionian Islands, Corfu, Greece.
Article

Access_open The Potential of Public Policy on Open Access Repositories

Tijdschrift Erasmus Law Review, Aflevering 2 2019
Trefwoorden public policy, dissemination, governance, open access, repositories
Auteurs Nikos Koutras
SamenvattingAuteursinformatie

    To address the potential of public policy on the governance of OARs it is necessary to define what is meant by public policy and the importance of public policy in designing an efficient governance framework. Critical components are the subject matter of public policy and its objectives. Hence, it is useful to consider declarations, policies and statements in relation to open access practice and examine the efficiency of these arrangements towards the improvement of stakeholders’ engagement in governance of OARs. Secondly, policies relating to dissemination of scientific information via OARs should be examined. In this regard, it is relevant to consider the public policy basis for Intellectual Property (IP) laws that concerning the utility of OARs. Therefore, economic theories relevant with the role of IP laws should be examined. Such examination depicts to what extend these laws facilitate the utility of OARs. In order to specify justifications for the desirability of OARs the objectives of social theories should be also considered. Thus, there is consternation that without legal protection against copying the incentive to create intellectual property will be undermined. As scholarly communication infrastructure evolves, it is necessary to recognize the efforts of the relationship between Intellectual Property Rights (IPRs) and communication technologies in the context of public policy and after engagement with it. After employing such multilevel approach, the paper argues about a socio-economic framework to enhance the governance of OARs through public policy.


Nikos Koutras
Postdoctoral Researcher, Faculty of Law, University of Antwerp.
Article

Access_open Changes in the Medical Device’s Regulatory Framework and Its Impact on the Medical Device’s Industry: From the Medical Device Directives to the Medical Device Regulations

Tijdschrift Erasmus Law Review, Aflevering 2 2019
Trefwoorden Medical Device Directive, Medical Device Regulation, regulatory, European Union, reform, innovation, SPCs, policy
Auteurs Magali Contardi
SamenvattingAuteursinformatie

    Similar to pharmaceutical products, medical devices play an increasingly important role in healthcare worldwide by contributing substantially to the prevention, diagnosis and treatment of diseases. From the patent law perspective both, pharmaceutical products and a medical apparatus, product or device can be patented if they meet the patentability requirements, which are novelty, inventiveness and entail industrial applicability. However, regulatory issues also impact on the whole cycle of the innovation. At a European level, enhancing competitiveness while ensuring public health and safety is one of the key objectives of the European Commission. This article undertakes literature review of the current and incoming regulatory framework governing medical devices with the aim of highlighting how these major changes would affect the industry at issue. The analysis is made in the framework of an on-going research work aimed to determine whether SPCs are needed for promoting innovation in the medical devices industry. A thorough analysis the aforementioned factors affecting medical device’s industry will allow the policymakers to understand the root cause of any optimal patent term and find appropriate solutions.


Magali Contardi
PhD candidate; Avvocato (Italian Attorney at Law).
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.

    This article relies on the premise that to understand the significance of Open Access Repositories (OARs) it is necessary to know the context of the debate. Therefore, it is necessary to trace the historical development of the concept of copyright as a property right. The continued relevance of the rationales for copyright interests, both philosophical and pragmatic, will be assessed against the contemporary times of digital publishing. It follows then discussion about the rise of Open Access (OA) practice and its impact on conventional publishing methods. The present article argues about the proper equilibrium between self-interest and social good. In other words, there is a need to find a tool in order to balance individuals’ interests and common will. Therefore, there is examination of the concept of property that interrelates justice (Plato), private ownership (Aristotle), labour (Locke), growth of personality (Hegel) and a bundle of rights that constitute legal relations (Hohfeld). This examination sets the context for the argument.


Nikos Koutras
Postdoctoral Researcher, Faculty of Law, University of Antwerp.
Article

Access_open The New Dutch Model Investment Agreement

On the Road to Sustainability or Keeping up Appearances?

Tijdschrift Erasmus Law Review, Aflevering 4 2019
Trefwoorden Dutch model BIT, foreign direct investment, bilateral investment treaties, investor-to-state dispute settlement, sustainable development goals
Auteurs Alessandra Arcuri en Bart-Jaap Verbeek
SamenvattingAuteursinformatie

    In 2019, the Dutch government presented a New Model Investment Agreement that seeks to contribute to the sustainability and inclusivity of future Dutch trade and investment policy. This article offers a critical analysis of the most relevant parts of the revised model text in order to appraise to what extent it could promote sustainability and inclusivity. It starts by providing an overview of the Dutch BIT (Bilateral Investment Treaty) programme, where the role of the Netherlands as a favourite conduit country for global FDI is highlighted. In the article, we identify the reasons why the Netherlands became a preferred jurisdiction for foreign investors and the negative implications for governments and their policy space to advance sustainable development. The 2019 model text is expressly set out to achieve a fairer system and to protect ‘sustainable investment in the interest of development’. While displaying a welcome engagement with key values of sustainable development, this article identifies a number of weaknesses of the 2019 model text. Some of the most criticised substantive and procedural provisions are being reproduced in the model text, including the reiteration of investors’ legitimate expectation as an enforceable right, the inclusion of an umbrella clause, and the unaltered broad coverage of investments. Most notably, the model text continues to marginalise the interests of investment-affected communities and stakeholders, while bestowing exclusive rights and privileges on foreign investors. The article concludes by hinting at possible reforms to better align existing and future Dutch investment treaties with the sustainable development goals.


Alessandra Arcuri
Alessandra Arcuri is Professor at Erasmus School of Law and Erasmus Initiative Dynamics of Inclusive Prosperity, Erasmus University Rotterdam.

Bart-Jaap Verbeek
Bart-Jaap Verbeek is Researcher at Stichting Onderzoek Multinationale Ondernemingen (SOMO) and PhD Candidate Political Science at the Radboud University.
Article

Access_open Consumer Social Responsibility in Dutch Law

A Case Study on the Role of Consumers in Energy Transition

Tijdschrift Erasmus Law Review, Aflevering 4 2019
Trefwoorden consumer, energy transition, social responsibility, Dutch law, EU law
Auteurs Katalin Cseres
SamenvattingAuteursinformatie

    As our economies continue to focus on growth, competition and maximisation of consumer choice, the global increase in consumption takes vast environmental and social costs and cause irreversible harm to our climate and environment. The urgency of reducing human footprint and to diminish one of the root causes of a declining climate and environment is irrefutable. In the shift that globally has to take place, a decentralised energy system relying on more distributed generation, energy storage and a more active involvement of consumers form a crucial component of renewable energy solutions. The move from a highly centralised to a more decentralised power system involves an increasing amount of small-scale (intermittent) generation from renewable energy which is located closer to the point of final consumption. In order to steer consumption towards sustainability national governments and supranational organisations have adopted policies and corresponding legislation that address individual consumers as rational and active choice-makers who make socially responsible choices when they receive the ‘right’ amount of information. By relying on insights from modern consumption theories with contributions from sociology, this article questions the effectiveness and legitimacy of these ‘consumer-centred’ policies and laws. First, the article argues that the single focus on individual consumer behaviour as a rational and utility maximising market actor fails to take into account the complexity of consumption, which is fundamentally influenced by social norms and its broader institutional setting. Although consumers are willing to consume more sustainably, they are often ‘locked in by circumstances’ and unable to engage in more sustainable consumption practices even if they want to. Second, by relying on evidence from sociological studies the article argues that individual consumers are not the most salient actors in support of sustainable consumption. Even though the urgency of the energy transition and the critical role consumers play in (un)sustainable energy consumption is acknowledged in both the EU and its Member States, their laws and policies remain grounded on goals of economic growth with competitive economies, the sovereignty of consumer choice and wealth maximisation, instead of aiming at slower economic growth or even degrowth, reducing overall resource use and consumption levels and introducing radically different ways of consumption.
    Third, the role of law is underlined as a social institution both as a constraint on the autonomous acts of consumption, dictating the normative frameworks within which the role of consumer is defined, and as a facilitator which consumers might also employ, in order to determine for themselves particular normative parameters within which consumption can occur.
    The Netherlands, which serves as a case study in this article, has reached important milestones in its energy transition policy since 2013. Still, it remains strongly focused on economic rationality and market competitiveness. Even though various models of consumer participation exist and local consumer energy initiatives are flourishing and are recognised as key actors in the energy transition, they remain embedded in institutional, structural and behavioural settings where consumers still face challenging sociocultural barriers to sustainable practices.
    In light of these legal, political and social complexity of energy transition, the article offers a critical analysis of the current Dutch law in its broader legal context of EU law in order to answer the question what the role of (energy) law is in steering consumers towards sustainable energy consumption.


Katalin Cseres
Katalin Cseres is Associate Professor of Law, Amsterdam Centre for European Law & Governance (ACELG), University of Amsterdam.
Article

Access_open SMART Reflections on Policy Coherence, Legal Developments in the Netherlands and the Case for EU Harmonisation

Afterword to Erasmus Law Review Special Issue Towards Responsible Business Conduct in Global Value Chains

Tijdschrift Erasmus Law Review, Aflevering 4 2019
Trefwoorden sustainability, business, global value chains, planetary boundaries, sustainable corporate governance
Auteurs Beate Sjåfjell en Jeroen Veldman
SamenvattingAuteursinformatie

    The EU-funded project Sustainable Market Actors for Responsible Trade (SMART, 2016-2020), undertook an interdisciplinary and multilevel regulatory analysis of the barriers and possibilities for securing the contribution of private and public market actors to a sustainable future. Jurisdiction-specific contributions were an essential part of this broad regulatory analysis. This afterword reflects on the Dutch contributions included in this Special Issue, emphasising the urgency of securing policy coherence for sustainable business. The afterword highlights how individual initiatives by national legislators such as those of the Netherlands can be inspiring examples, while they also bring with them challenges including questions of scope and of legal certainty for businesses, specifically with regard to cross-border operations and activities. This leaves business with the difficult task of figuring out the various requirements and expectations and may lead to regulatory competition between EU member states. The afterword therefore concludes with a call for EU harmonisation, to give sustainability-oriented business a level playing field and provide legal certainty both for decision-makers in business and for those affected by the conduct of business across global value chains.


Beate Sjåfjell
Beate Sjåfjell is Professor, University of Oslo, Faculty of Law; Adjunct Professor, Norwegian University of Science and Technology, Faculty of Economics and Management. Coordinator of the now concluded H2020-funded project Sustainable Market Actors for Responsible Trade (SMART, 2016-2020), grant agreement 693642. Acknowledgment: This article draws on joint research in the SMART Project, and I am grateful to the whole team, and, in the context of this special issue, especially Jeroen Veldman for his leadership on the Dutch contribution to the project.

Jeroen Veldman
Jeroen Veldman is Visiting Associate Professor at Rotterdam School of Management, Erasmus University Rotterdam, Visiting Associate Professor at Mines Paristech, Interdisciplinary Institute for Innovation, Paris and Section Editor Corporate Governance at the Journal of Business Ethics.
Article

Access_open Commercial Litigation in Europe in Transformation: The Case of the Netherlands Commercial Court

Tijdschrift Erasmus Law Review, Aflevering 1 2019
Trefwoorden international business courts, Netherlands Commercial Court, choice of court, recognition and enforcements of judgements
Auteurs Eddy Bauw
SamenvattingAuteursinformatie

    The judicial landscape in Europe for commercial litigation is changing rapidly. Many EU countries are establishing international business courts or have done so recently. Unmistakably, the approaching Brexit has had an effect on this development. In the last decades England and Wales – more precise, the Commercial Court in London - has built up a leading position as the most popular jurisdiction for resolving commercial disputes. The central question for the coming years will be what effect the new commercial courts in practice will have on the current dominance of English law and the leading position of the London court. In this article I address this question by focusing on the development of a new commercial court in the Netherlands: the Netherlands Commercial Court (NCC).


Eddy Bauw
Professor of Private Law and Administration of Justice at Molengraaff Institute for Private Law and Montaigne Centre for Rule of Law and Administration of Justice, Utrecht University. Substitute judge at the Court of Appeal of Arnhem-Leeuwarden and the Court of Appeal of The Hague.
Article

Access_open Requirements upon Agreements in Favour of the NCC and the German Chambers – Clashing with the Brussels Ibis Regulation?

Tijdschrift Erasmus Law Review, Aflevering 1 2019
Trefwoorden international commercial courts, the Netherlands Commercial Court (NCC), Chambers for International Commercial Disputes (Kammern für internationale Handelssachen), Brussels Ibis Regulation, choice of court agreements, formal requirements
Auteurs Georgia Antonopoulou
SamenvattingAuteursinformatie

    In recent years, the Netherlands and Germany have added themselves to the ever-growing number of countries opting for the creation of an international commercial court. The Netherlands Commercial Court (NCC) and the German Chambers for International Commercial Disputes (Kammern für internationale Handelssachen, KfiH) will conduct proceedings entirely in English and follow their own, diverging rules of civil procedure. Aspiring to become the future venues of choice in international commercial disputes, the NCC law and the legislative proposal for the establishment of the KfiH allow parties to agree on their jurisdiction and entail detailed provisions regulating such agreements. In particular, the NCC requires the parties’ express and in writing agreement to litigate before it. In a similar vein, the KfiH legislative proposal requires in some instances an express and in writing agreement. Although such strict formal requirements are justified by the need to safeguard the procedural rights of weaker parties such as small enterprises and protect them from the peculiarities of the NCC and the KfiH, this article questions their compliance with the requirements upon choice of court agreements under Article 25 (1) Brussels Ibis Regulation. By qualifying agreements in favour of the NCC and the KfiH first as functional jurisdiction agreements and then as procedural or court language agreements this article concludes that the formal requirements set by the NCC law and the KfiH proposal undermine the effectiveness of the Brussels Ibis Regulation, complicate the establishment of these courts’ jurisdiction and may thus threaten their attractiveness as future litigation destinations.


Georgia Antonopoulou
PhD candidate at Erasmus School of Law, Rotterdam.
Article

Access_open Matchmaking International Commercial Courts and Lawyers’ Preferences in Europe

Tijdschrift Erasmus Law Review, Aflevering 1 2019
Trefwoorden choice of court, commercial court, lawyers’ preferences, survey on lawyers, international court
Auteurs Erlis Themeli
SamenvattingAuteursinformatie

    France, Germany, Belgium, and the Netherlands have taken concrete steps to design and develop international commercial courts. Most of the projects claim to be building courts that match the preferences of court users. They also try to challenge England and Wales, which evidence suggests is the most attractive jurisdiction in the EU. For the success of these projects, it is important that their proposed courts corresponds with the expectations of the parties, but also manages to attract some of the litigants that go to London. This article argues that lawyers are the most important group of choice makers, and that their preferences are not sufficiently matched by the new courts. Lawyers have certain litigation service and court perception preferences. And while the new courts improve their litigation service, they do not sufficiently addressed these court perception preferences.


Erlis Themeli
Postdoc, Erasmus School of Law, Erasmus University Rotterdam.
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