Zoekresultaat: 11 artikelen

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Jaar 2017 x
Article

Access_open The Peer Review Process of the Global Forum on Transparency and Exchange of Information for Tax Purposes

A Critical Assessment on Authority and Legitimacy

Tijdschrift Erasmus Law Review, Aflevering 2 2017
Trefwoorden Global Forum on Transparency and Exchange of Information, exercise of regulatory authority, due process requirements, peer review reports, legitimacy
Auteurs Leo E.C. Neve
SamenvattingAuteursinformatie

    The Global Forum on transparency and exchange of information for tax purposes has undertaken peer reviews on the implementation of the global standard of exchange of information on request, both from the perspective of formalities available and from the perspective of actual implementation. In the review reports Global Forum advises jurisdictions on required amendments of regulations and practices. With these advices, the Global Forum exercises regulatory authority. The article assesses the legitimacy of the exercise of such authority by the Global Forum and concludes that the exercise of such authority is not legitimate for the reason that the rule of law is abused by preventing jurisdictions to adhere to due process rules.


Leo E.C. Neve
Leo Neve is a doctoral student at the Erasmus School of Law, Rotterdam.
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.
Article

Access_open The Right to Same-Sex Marriage: Assessing the European Court of Human Rights’ Consensus-Based Analysis in Recent Judgments Concerning Equal Marriage Rights

Tijdschrift Erasmus Law Review, Aflevering 3 2017
Trefwoorden same-sex marriage, gay marriage, European consensus, margin of appreciation, consensus-based analysis by the ECtHR
Auteurs Masuma Shahid
SamenvattingAuteursinformatie

    This contribution assesses the consensus-based analysis and reasoning of the European Court of Human Rights in recent judgments concerning equal marriage rights and compares it to the Court’s past jurisprudence on European consensus and the margin of appreciation awarded to Member States regarding the issue of equal marriage rights. The contribution aims to analyse whether there is a parallel to be seen between the rapid global trend of legalisation of same-sex marriage and the development or evolution of the case law of the ECtHR on the same topic. Furthermore, it demonstrates that the Court’s consensus-based analysis is problematic for several reasons and provides possible alternative approaches to the balancing of the Court between, on the one hand, protecting rights of minorities (in this case same-sex couples invoking equal marriage rights) under the European Convention on Human Rights and, on the other hand, maintaining its credibility, authority and legitimacy towards Member States that might disapprove of the evolving case law in the context of same-sex relationships. It also offers insights as to the future of European consensus in the context of equal marriage rights and ends with some concluding remarks.


Masuma Shahid
Lecturer, Department of International and European Union Law, Erasmus School of Law, Rotterdam.
Article

Access_open Religious Freedom of Members of Old and New Minorities: A Double Comparison

Tijdschrift Erasmus Law Review, Aflevering 3 2017
Trefwoorden ECtHR, UNHRC, religious manifestations, religious minorities, empirical analysis
Auteurs Fabienne Bretscher
SamenvattingAuteursinformatie

    Confronted with cases of restrictions of the right to manifest religious beliefs of new religious minorities formed by recent migration movements, the ECtHR and the UNHRC seem to opt for different interpretations and applications of this right, as recent conflicting decisions show. Based on an empirical legal analysis of the two bodies’ decisions on individual complaints, this article finds that these conflicting decisions are part of a broader divergence: While the UNHRC functions as a protector of new minorities against States’ undue interference in their right to manifest their religion, the ECtHR leaves it up to States how to deal with religious diversity brought by new minorities. In addition, a quantitative analysis of the relevant case law showed that the ECtHR is much less likely to find a violation of the right to freedom of religion in cases brought by new religious minorities as opposed to old religious minorities. Although this could be a hint towards double standards, a closer look at the examined case law reveals that the numerical differences can be explained by the ECtHR’s weaker protection of religious manifestations in the public as opposed to the private sphere. Yet, this rule has an important exception: Conscientious objection to military service. By examining the development of the relevant case law, this article shows that this exception bases on a recent alteration of jurisprudence by the ECtHR and that there are similar prospects for change regarding other religious manifestations in the public sphere.


Fabienne Bretscher
PhD candidate at the University of Zurich.

Elisabetta Silvestri
Elisabetta Silvestri is Associate Professor of Italian Civil Procedure and Comparative Civil Procedure; Scientific Director of the postgraduate program on Mediation and ADR, Department of Law, University of Pavia. Co-Director of the annual seminar ‘Public and Private Justice’, Inter-University Centre, Dubrovnik, Croatia; member of the Scientific Advisory Board of Almo Collegio Borromeo, Pavia. She graduated from the University of Pavia and received a LL.M. degree from Cornell Law School. She is a member of the European Law Institute and the International Association of Procedural Law. She has written on Italian civil procedure and a variety of topics in the field of comparative procedure. She has lectured extensively in Italy and abroad; she is a member of one of the Working Groups established by the European Law Institute and UNIDROIT for the development of the project ‘From Transnational Principles to European Rules of Civil Procedure’.

    In the last few decades, we have witnessed the renaissance of Comparative Constitutional law as field of research. Despite such a flourishing, the methodological foundations and the ultimate ratio of Constitutional comparative law are still debated among scholars. This article starts from the definition of comparative constitutional law given by one of the most prominent comparative constitutional law scholars in Italy, prof. Bognetti, who defined comparative constitutional law as the main joining ring between the historical knowledge of the modern law and the history of the humankind in general and of its various civil realizations. Comparative constitutional law is in other words a kind of mirror of the “competing vision of who we are and who we wish to be as a political community” (Hirschl), reflecting the structural tension between universalism and particularism, globalization and tradition.
    The article aims at addressing the main contemporary methodological challenges faced by the studies of the field. The article argues that contemporary comparative constitutional studies should address these challenges integrating the classical “horizontal” comparative method with a vertical one - regarding the international and supranational influences on constitutional settings - and fostering an interdisciplinary approach, taking into account the perspective of the social sciences.


Antonia Baraggia
Emile Noël Fellow, Jean Monnet Center for International and Regional Economic Law & Justice, NYU School of Law and Post-doc Fellow in Constitutional Law, University of Milan. For helpful comments on an earlier draft I am grateful to Luca Pietro Vanoni, Sofia Ranchordas and two anonymous reviewers.

    Both H.L.A. Hart and John Searle repeatedly refer to games in their work on the concept of law and the construction of social reality respectively. We can argue that this is not a coincidence, Hart’s analysis of law as a system of primary and secondary rules bears close resemblances to Searle’s analysis of social reality as a system of regulative and constitutive rules and the comparison to games leads to interesting insights about the ontology of law and legal epistemology. The present article explores both the institutional theory of law that can be devised on the basis of the work of Hart and Searle, the method of analytical philosophy they employ and the particular consequences that can be deduced for legal research from the resulting legal theory.


Arie-Jan Kwak
Dr. A.J. Kwak, Faculty of Law, Leiden University, Leiden, The Netherlands.

    The purpose of this article is to investigate whether the notion of an interest should be taken more seriously than the notion of a right. It will be argued that it should; and not only because it can be just as amenable to the institutional taxonomical structure often said to be at the basis of rights thinking in law but also because the notion of an interest has a more epistemologically convincing explanatory power with respect to reasoning in law and its relation to social facts. The article equally aims to highlight some of the important existing work on the notion of an interest in law.


Geoffrey Samuel
Professor of Law, Kent Law School, The University of Kent, Canterbury, Kent, U.K. This article is a much re-orientated, and updated, adaption of a paper published a decade ago: Samuel 2004, at 263. The author would like to thank the anonymous referees for their very helpful criticisms and observations on an earlier version of the manuscript.
ECJ Court Watch

ECJ 27 April 2017, C-620/15 (A-Rosa Flussschiff), Free movement, social insurance

A-Rosa Flussschiff GmbH – v – Union de recouvrement des cotisations de sécurité sociale et d’allocations familiales d’Alsace (URSSAF), venant aux droits de l’URSSAF du Bas-Rhin and Sozialversicherungsanstalt des Kantons Graubünden, French case

Tijdschrift European Employment Law Cases, Aflevering 2 2017
Trefwoorden free movement: social insurance
Samenvatting

    An E101 certificate, issued by the institution designated by the competent authority of a Member State under Article 14(2)(a) of Regulation No 1408/71, is binding on both the social security institutions of the Member State in which the work is carried out and the courts of that Member State – even when it is found by those courts that the conditions under which the workers carried out their activities did not fall within the scope of the provisions of Regulation no 1408/71.

Artikel

‘Troostmeisjes’: Over de structurele ontkenning van seksuele slavernij en voortschrijdende victimisatie

Tijdschrift Tijdschrift over Cultuur & Criminaliteit, Aflevering 2 2017
Trefwoorden comfort women, denial, sexual slavery, discourse analysis
Auteurs dr. mr. Roland Moerland
Samenvatting

    In 2015, South-Korea and Japan came to a ‘final’ agreement concerning the ‘comfort women’ issue. This contribution reveals that this deal signals the next stage in a process of denial through which Japanese authorities have structurally denied the women’s’ victimhood. Taking a discourse analytical approach, the contribution investigates this historical process of denial and its implications. The analysis shows that denial takes several forms and performs different functions throughout the process. It demonstrates that denial is an interactional phenomenon, has different psychologies underlying it, and that it operates on different levels. Denial ultimately contributes to a state of continued victimization.


dr. mr. Roland Moerland
Artikel

English and Welsh experience of marketisation, payment by results and justice devolution in the probation sector

Tijdschrift PROCES, Aflevering 2 2017
Trefwoorden Transforming Rehabilitation, Payment by Results, Justice Devolution, Innovation
Auteurs Prof. Chris Fox
SamenvattingAuteursinformatie

    The UK government has embarked on an ambitious programme to reform the English and Welsh probation sector. Key to these reforms has been ‘marketisation’ involving Payment by Results. More recently the devolution of justice has become a key theme. This paper describes key reforms that have taken place since 2010 and sets out evidence for their effectiveness. Currently, the available evidence is limited, but more evidence is available from other sectors where similar models have also been used. This evidence base is discussed with particular reference to the potential for the reforms to promote innovation.


Prof. Chris Fox
Prof. Chris Fox is Professor of Evaluation and Policy Analysis and Director of the Policy Evaluation and Research Unit at Manchester Metropolitan University.
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