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Article

Access_open Can Non-discrimination Law Change Hearts and Minds?

Tijdschrift Erasmus Law Review, Aflevering 3 2020
Trefwoorden law and society, social change, discrimination, non-discrimination law, positive action
Auteurs Anita Böcker
SamenvattingAuteursinformatie

    A question that has preoccupied sociolegal scholars for ages is whether law can change ‘hearts and minds’. This article explores whether non-discrimination law can create social change, and, more particularly, whether it can change attitudes and beliefs as well as external behaviour. The first part examines how sociolegal scholars have theorised about the possibility and desirability of using law as an instrument of social change. The second part discusses the findings of empirical research on the social working of various types of non-discrimination law. What conclusions can be drawn about the ability of non-discrimination law to create social change? What factors influence this ability? And can non-discrimination law change people’s hearts and minds as well as their behaviour? The research literature does not provide an unequivocal answer to the latter question. However, the overall picture emerging from the sociolegal literature is that law is generally more likely to bring about changes in external behaviour and that it can influence attitudes and beliefs only indirectly, by altering the situations in which attitudes and opinions are formed.


Anita Böcker
Anita Böcker is associate professor of Sociology of Law at Radboud University, Nijmegen.
Article

Access_open How Far Should the State Go to Counter Prejudice?

A Positive State Obligation to Counter Dehumanisation

Tijdschrift Erasmus Law Review, Aflevering 3 2020
Trefwoorden prejudice, soft paternalism, empathy, liberalism, employment discrimination, access to goods and services
Auteurs Ioanna Tourkochoriti
SamenvattingAuteursinformatie

    This article argues that it is legitimate for the state to practice soft paternalism towards changing hearts and minds in order to prevent behaviour that is discriminatory. Liberals accept that it is not legitimate for the state to intervene in order to change how people think because ideas and beliefs are wrong in themselves. It is legitimate for the state to intervene with the actions of a person only when there is a risk of harm to others and when there is a threat to social coexistence. Preventive action of the state is legitimate if we consider the immaterial and material harm that discrimination causes. It causes harm to the social standing of the person, psychological harm, economic and existential harm. All these harms threaten peaceful social coexistence. This article traces a theory of permissible government action. Research in the areas of behavioural psychology, neuroscience and social psychology indicates that it is possible to bring about a change in hearts and minds. Encouraging a person to adopt the perspective of the person who has experienced discrimination can lead to empathetic understanding. This, can lead a person to critically evaluate her prejudice. The paper argues that soft paternalism towards changing hearts and minds is legitimate in order to prevent harm to others. It attempts to legitimise state coercion in order to eliminate prejudice and broader social patterns of inequality and marginalisation. And it distinguishes between appropriate and non-appropriate avenues the state could pursue in order to eliminate prejudice. Policies towards eliminating prejudice should address the rational and the emotional faculties of a person. They should aim at using methods and techniques that focus on persuasion and reduce coercion. They should raise awareness of what prejudice is and how it works in order to facilitate well-informed voluntary decisions. The version of soft paternalism towards changing minds and attitudes defended in this article makes it consistent with liberalism.


Ioanna Tourkochoriti
Ioanna Tourkochoriti is Lecturer Above the Bar, NUI Galway School of Law.
Article

Access_open Ship Recycling Financial Instruments: A Tax or Not a Tax?

Some Brief Reflections

Tijdschrift Erasmus Law Review, Aflevering 2 2020
Trefwoorden Ship Recycling Fund, Ship Recycling License, green ship scrapping, EU concept of tax, earmarked tax
Auteurs Han Kogels en Ton Stevens
SamenvattingAuteursinformatie

    In this article the question is reviewed whether two by the EU Commission proposed financial instruments to stimulate ‘green’ ship scrapping, (i) a Ship Recycling Fund (SRF) and (ii) a Ship Recycling License (SRL), might be qualified as a ‘tax’ under Article 192(2) TFEU. Qualification as such a “tax” would mean that the EU Commission can only introduce such a financial instrument with unanimity voting. The authors first explore the concept of ‘tax’ in the TFEU in general and in Article 192(2) TFEU in particular. Based on this analysis, the authors conclude that levies paid to an SRF might be qualified as an ‘earmarked tax’ falling within the definition of a ‘fiscal provision’ in the meaning of Article 192(2) TFEU, which means that levies to such a fund can only be introduced by unanimity voting. The SRL fee consists of two elements: (i) a fee to cover administrative expenses and (ii) a contribution to a savings account. The fee to cover administrative expenses is qualified by the authors as a retribution that should not be qualified as a fiscal provision in the meaning of Article 192(2) TFEU. The contribution to a blocked savings account can neither be qualified as a tax nor as a retribution. Therefore, the SRL fee can be introduced without unanimity voting by the EU Council.


Han Kogels
H.A. Kogels is Emeritus professor of European tax law Erasmus School of Law.

Ton Stevens
A.J.A. Stevens is Professor of corporation tax law Tilburg University and of counsel Loyens & Loeff, Rotterdam. He was previously holding the chair of international tax law at Erasmus School of Law and initially involved in the ship recycling financial instrument project but did not participate in the drafting of the final report.
Article

Access_open Mercosur: Limits of Regional Integration

Tijdschrift Erasmus Law Review, Aflevering 3 2019
Trefwoorden Mercosur, European Union, regionalism, integration, international organisation
Auteurs Ricardo Caichiolo
SamenvattingAuteursinformatie

    This study is focused on the evaluation of successes and failures of the Common Market of the South (Mercosur). This analysis of Mercosur’s integration seeks to identify the reasons why the bloc has stagnated in an incomplete customs union condition, although it was originally created to achieve a common market status. To understand the evolution of Mercosur, the study offers some thoughts about the role of the European Union (EU) as a model for regional integration. Although an EU-style integration has served as a model, it does not necessarily set the standards by which integration can be measured as we analyse other integration efforts. However, the case of Mercosur is emblematic: during its initial years, Mercosur specifically received EU technical assistance to promote integration according to EU-style integration. Its main original goal was to become a common market, but so far, almost thirty years after its creation, it remains an imperfect customs union.
    The article demonstrates the extent to which almost thirty years of integration in South America could be considered a failure, which would be one more in a list of previous attempts of integration in Latin America, since the 1960s. Whether it is a failure or not, it is impossible to envisage EU-style economic and political integration in South America in the foreseeable future. So far, member states, including Brazil, which could supposedly become the engine of economic and political integration in South America, have remained sceptical about the possibility of integrating further politically and economically. As member states suffer political and economic turmoil, they have concentrated on domestic recovery before being able to dedicate sufficient time and energy to being at the forefront of integration.


Ricardo Caichiolo
Ricardo Caichiolo, PhD (Université catholique de Louvain, Belgium) is legal and legislative adviser to the Brazilian Senate and professor and coordinator of the post graduate programs on Public Policy, Government Relations and Law at Ibmec (Instituto Brasileiro de Mercado de Capitais, Brazil).
Article

Access_open Levying VAT in the EU Customs Union: Towards a Single Indirect Tax Area? The Ordeal of Indirect Tax Harmonisation

Tijdschrift Erasmus Law Review, Aflevering 3 2019
Trefwoorden single indirect tax area, VAT action plan, quick fixes, e-commerce package, definitive VAT system
Auteurs Ben Terra
SamenvattingAuteursinformatie

    This contribution deals with the latest proposals regarding levying VAT in the European Union (EU) Customs Union. The present system, which has been in place since 1993 and was supposed to be transitional, splits every cross-border transaction into an exempted cross-border supply and a taxable cross-border acquisition. It is like a customs system, but lacks equivalent controls and is therefore the root of cross-border fraud. After many years of unsuccessful attempts, the Commission abandoned the objective of implementing definitive VAT arrangements based on the principle of taxing all cross-border supplies of goods in the Member State of their origin, under the same conditions that apply to domestic trade including VAT rates. The European Parliament and the Council agreed that the definitive system should be based on the principle of taxation in the Member State of the destination of the goods. After a brief discussion of the VAT Action Plan of 2016 (Section 1), the e-commerce package in the form of Directive (EU) 2017/2455 is dealt with (Section 2), followed by the proposal to harmonise and simplify certain rules in the VAT system and introduce the definitive system, only partially adopted (Section 3). Section 4 deals with the proposal to introduce detailed measures of the definitive VAT system. The proposed harmonisation and simplification of certain rules were meant to become applicable on 1 January 2019, but will become only partially applicable on 2020. It is proposed to make the detailed measures of the definitive VAT system applicable in 2022. It remains to be seen whether the Member States are willing to accept the definitive VAT system at all; hence the subtitle ‘the ordeal of indirect tax harmonisation’.


Ben Terra
Prof. Dr. Dr. h.c. Ben Terra was a professor of tax law at the universities of Amsterdam and Lund and visiting professor at the Universidade Católica in Lisbon.
Article

Access_open Reflections on the 50th Anniversary of the EU Customs Union

Tijdschrift Erasmus Law Review, Aflevering 3 2019
Trefwoorden Brexit, EU Customs Union, internal market
Auteurs Martijn L. Schippers en Walter de Wit
Auteursinformatie

Martijn L. Schippers
Martijn Schippers is a PhD Candidate at the Erasmus School of Law and affiliated to EY.

Walter de Wit
Walter de Wit is a professor in International and European Customs Law at the Erasmus School of Law and affiliated to EY.
Article

Access_open The EU Customs Union after Brexit

How from a Customs Perspective the Integrity of the Internal Market Is Protected after the Transitional Phase under the Revised Protocol on Ireland/Northern Ireland

Tijdschrift Erasmus Law Review, Aflevering 3 2019
Trefwoorden Brexit, EU Customs Union, Internal Market
Auteurs Walter de Wit
SamenvattingAuteursinformatie

    In this contribution the author examines how, from a customs perspective, the integrity of the internal market is protected after the transitional phase under the Revised Protocol on Ireland/Northern Ireland. He briefly discusses the customs aspects of the Withdrawal Agreement and then examines in depth the revised arrangement with regard to the Irish border in light of the protection of the integrity of the internal market. He shows that the revised arrangement cleared the Brexit deal through parliament and paved the UK’s way to leave the EU on 31 January 2020. He concludes, however, that given the complexity of the legislation underlying the revised arrangement, the UK will be paying a high price for getting Brexit done, keeping the Irish border open and protecting the integrity of the internal market of the EU.


Walter de Wit
Walter de Wit is a professor in International and European Customs Law at the Erasmus School of Law and is also affiliated to EY.
Article

Access_open The Foundations of the Internal Market: Free Trade Area and Customs Union under Articles 28-31 TFEU

Tijdschrift Erasmus Law Review, Aflevering 3 2019
Trefwoorden free trade area, EU Customs Union, internal market, European Union, Brexit
Auteurs Stefan Enchelmaier
SamenvattingAuteursinformatie

    This contribution places the provisions of the Treaty creating a free trade area and customs union between the Member States (Articles 28-31 TFEU) in their wider context. It then focuses on the interpretation of Article 30 in the jurisprudence of the Court of Justice of the European Union (CJEU). Throughout, it casts sideways glances at corresponding provisions of General Agreement on Tariffs and Trade (GATT). As it turns out, the abolition of customs duties and charges having equivalent effect, and the establishment of a customs union between Member States, were important milestones in the development of European unification. They became overshadowed later by more spectacular developments in the case law on the free movement of goods, persons and services. As a consequence, the importance of the customs provisions is widely underrated. Brexit concentrates the minds in this respect, as an important economy is about to rearrange and even recreate the basic building blocks of its international trading relations.


Stefan Enchelmaier
Stefan Enchelmaier, Dr iur (Bonn) habil (Munich) LLM (Edinb) MA (Oxon) is Professor of European and Comparative Law at Lincoln College, University of Oxford.
Article

Access_open Impact of International Law on the EU Customs Union

Tijdschrift Erasmus Law Review, Aflevering 3 2019
Trefwoorden European Union, customs union, international law, customs legislation, autonomous standards
Auteurs Achim Rogmann
SamenvattingAuteursinformatie

    This contribution examines the various international instruments, in both hard and soft law, that have been established by international organisations such as the WTO and WCO and scrutinises how they have been implemented into EU legislation governing the EU Customs Union, thus demonstrating the substantial influence of international instruments on the Customs Union. As the relevant international instruments affect not only the traditional elements of European customs law, but also the EU’s entire export control regime and the framework of the internal market, this contribution demonstrates, moreover, how the Customs Union functions in a globalised world.


Achim Rogmann
Achim Rogmann, LL.M is professor of law at the Brunswick European Law School at Ostfalia Hochschule fur angewandte Wissenschaften.
Article

Access_open Waste Away

Examining Systemic Drivers of Global Waste Trafficking Based on a Comparative Analysis of Two Dutch Cases

Tijdschrift Erasmus Law Review, Aflevering 4 2019
Trefwoorden environmental crime, waste industry, shipbreaking, waste trafficking, environmental enforcement
Auteurs Karin van Wingerde en Lieselot Bisschop
SamenvattingAuteursinformatie

    The increasing volume of waste generated globally is one of the most prominent environmental issues we face today. Companies responsible for the treatment or disposal of waste are therefore among the key actors in fostering a sustainable future. Yet the waste industry has often been characterised as a criminogenic one, causing environmental harm which disproportionately impacts the world’s most vulnerable regions and populations. In this article, we illustrate how companies operating in global supply chains exploit legal and enforcement asymmetries and market complexities to trade waste with countries where facilities for environmentally sound treatment and disposal of waste are lacking. We draw on two contemporary cases of corporate misconduct in the Global South by companies with operating headquarters in the Global North: Seatrade and Probo Koala. We compare these cases building on theories about corporate and environmental crime and its enforcement. This explorative comparative analysis aims to identify the key drivers and dynamics of illegal waste dumping, while also exploring innovative ways to make the waste sector more environmentally responsible and prevent the future externalisation of environmental harm.


Karin van Wingerde
Karin van Wingerde is Professor Corporate Crime and Governance, Department of Criminology, Erasmus School of Law, Erasmus University Rotterdam.

Lieselot Bisschop
Lieselot Bisschop is Professor Public and Private Interests, Department of Criminology and Erasmus Initiative on Dynamics of Inclusive Prosperity, Erasmus School of Law, Erasmus University Rotterdam.
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 The Court of the Astana International Financial Center in the Wake of Its Predecessors

Tijdschrift Erasmus Law Review, Aflevering 1 2019
Trefwoorden international financial centers, offshore courts, international business courts, Kazakhstan
Auteurs Nicolás Zambrana-Tévar
SamenvattingAuteursinformatie

    The Court of the Astana International Financial Center is a new dispute resolution initiative meant to attract investors in much the same way as it has been done in the case of the courts and arbitration mechanisms of similar financial centers in the Persian Gulf. This paper examines such initiatives from a comparative perspective, focusing on their Private International Law aspects such as jurisdiction, applicable law and recognition and enforcement of judgments and arbitration awards. The paper concludes that their success, especially in the case of the younger courts, will depend on the ability to build harmonious relationships with the domestic courts of each host country.


Nicolás Zambrana-Tévar
LLM (LSE), PhD (Navarra), KIMEP University.
Article

Access_open The Conduit between Technological Change and Regulation

Tijdschrift Erasmus Law Review, Aflevering 3 2018
Trefwoorden technology, socio-technological change, money, windmill, data
Auteurs Marta Katarzyna Kołacz en Alberto Quintavalla
SamenvattingAuteursinformatie

    This article discusses how the law has approached disparate socio-technological innovations over the centuries. Precisely, the primary concern of this paper is to investigate the timing of regulatory intervention. To do so, the article makes a selection of particular innovations connected with money, windmills and data storage devices, and analyses them from a historical perspective. The individual insights from the selected innovations should yield a more systematic view on regulation and technological innovations. The result is that technological changes may be less momentous, from a regulatory standpoint, than social changes.


Marta Katarzyna Kołacz
Marta Katarzyna Kołacz, Ph.D. Candidate in the Department of Private Law, Erasmus School of Law, Erasmus University Rotterdam, The Netherlands.

Alberto Quintavalla
Alberto Quintavalla, LL.M., Ph.D. Candidate in the Rotterdam Institute of Law and Economics, Erasmus School of Law, Erasmus University Rotterdam, The Netherlands.

    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.

    Despite enjoying distinct and privileged constitutional statuses, the Indigenous minorities of Malaysia, namely, the natives of Sabah, natives of Sarawak and the Peninsular Malaysia Orang Asli continue to endure dispossession from their customary lands, territories and resources. In response, these groups have resorted to seeking justice in the domestic courts to some degree of success. Over the last two decades, the Malaysian judiciary has applied the constitutional provisions and developed the common law to recognise and protect Indigenous land and resource rights beyond the literal confines of the written law. This article focuses on the effectiveness of the Malaysian courts in delivering the preferred remedy of Indigenous communities for land and resource issues, specifically, the restitution or return of traditional areas to these communities. Despite the Courts’ recognition and to a limited extent, return of Indigenous lands and resources beyond that conferred upon by the executive and legislative arms of government, it is contended that the utilisation of the judicial process is a potentially slow, costly, incongruous and unpredictable process that may also not necessarily be free from the influence of the domestic political and policy debates surrounding the return of Indigenous lands, territories and resources.


Yogeswaran Subramaniam Ph.D.
Yogeswaran Subramaniam is an Advocate and Solicitor in Malaysia and holds a PhD from the University of New South Wales for his research on Orang Asli land rights. In addition to publishing extensively on Orang Asli land and resource rights, he has acted as legal counsel in a number of landmark indigenous land rights decisions in Malaysia.

Colin Nicholas
Colin Nicholas is the founder and coordinator of the Centre for Orang Asli Concerns (COAC). He received a PhD from the University of Malaya on the topic of Orang Asli: Politics, Development and Identity, and has authored several academic articles and books on Orang Asli issues. He has provided expert evidence in a number of leading Orang Asli cases. The law stated in this article is current as on 1 October 2017.

    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.

    Indigenous claims have challenged a number of orthodoxies within state legal systems, one of them being the kinds of proof that can be admissible. In Canada, the focus has been on the admissibility and weight of oral traditions and histories. However, these novel forms are usually taken as alternative means of proving a set of facts that are not in themselves “cultural”, for example, the occupation by a group of people of an area of land that constitutes Aboriginal title. On this view, maps are a neutral technology for representing culturally different interests within those areas. Through Indigenous land use studies, claimants have been able to deploy the powerful symbolic capital of cartography to challenge dominant assumptions about “empty” land and the kinds of uses to which it can be put. There is a risk, though, that Indigenous understandings of land are captured or misrepresented by this technology, and that what appears neutral is in fact deeply implicated in the colonial project and occidental ideas of property. This paper will explore the possibilities for an alternative cartography suggested by digital technologies, by Indigenous artists, and by maps beyond the visual order.


Kirsten Anker Ph.D.
Associate Professor, McGill University Faculty of Law, Canada. Many thanks to the two anonymous reviewers for their frank and helpful feedback.

    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
Article

Access_open Legal Legitimacy of Tax Recommendations Delivered by the IMF in the Context of ‘Article IV Consultations’

Tijdschrift Erasmus Law Review, Aflevering 2 2017
Trefwoorden legitimacy, International Monetary Fund (IMF), Article IV Consultations, tax recommendations, global tax governance
Auteurs Sophia Murillo López
SamenvattingAuteursinformatie

    This contribution examines the legal legitimacy of ‘Article IV Consultations’ performed by the IMF as part of its responsibility for surveillance under Article IV of its Articles of Agreement. The analysis focuses on tax recommendations given by the Fund to its member countries in the context of Consultations. This paper determines that these tax recommendations derive from a broad interpretation of the powers and obligations that have been agreed to in the Fund’s Articles of Agreement. Such an interpretation leads to a legitimacy deficit, as member countries of the Fund have not given their state consent to receive recommendations as to which should be the tax policies it should adopt.


Sophia Murillo López
Sophia Murillo López, LL.M, is an external PhD candidate at the Erasmus University Rotterdam and a member of the ‘Fiscal Autonomy and its Boundaries’ research programme.
Article

Access_open Legality of the World Bank’s Informal Decisions to Expand into the Tax Field, and Implications of These Decisions for Its Legitimacy

Tijdschrift Erasmus Law Review, Aflevering 2 2017
Trefwoorden World Bank, legality, legitimacy, global tax governance, tax policy and tax administration reforms
Auteurs Uyanga Berkel-Dorlig
SamenvattingAuteursinformatie

    The emergence of global tax governance was triggered by common tax problems, which are now still being faced by international society of nation-states. In the creation of this framework, international institutions have been playing a major role. One of these institutions is the World Bank (Bank). However, those who write about the virtues and vices of the main creators of the framework usually disregard the Bank. This article, therefore, argues that this disregard is not justified because the Bank has also been playing a prominent role. Since two informal decisions taken in the past have contributed to this position of the Bank, the article gives in addition to it answers to the following two related questions: whether these informal decisions of the Bank were legal and if so, what implications, if any, they have for the Bank’s legitimacy.


Uyanga Berkel-Dorlig
Ph.D. candidate in the Department of Tax Law, Erasmus School of Law, Erasmus University Rotterdam, The Netherlands.
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