Search result: 104 articles

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Xandra Kramer
Xandra Kramer is a professor at Erasmus School of Law, Erasmus University Rotterdam, and Deputy Judge at the District Court of Rotterdam.

Shusuke Kakiuchi
Shusuke Kakiuchi is a professor at the University of Tokyo.
Article

Access_open Relief in Small and Simple Matters in Belgium

Journal Erasmus Law Review, Issue 4 2015
Keywords Belgium, small matters, simple matters, recovery of unchallenged claims, summary order for payment
Authors Stefaan Voet
AbstractAuthor's information

    This article is based on a national report that was written for the XVth World Congress of the International Association of Procedural Law that was held in Istanbul in May 2015 and that focused on Effective Judicial Relief and Remedies in an Age of Austerity. It first of all sketches the general judicial context in Belgium and some of its relevant features: the judicial organisation, the goals of the civil justice system, the course of an ordinary civil lawsuit, the role of the court, and the litigation costs. Next, a detailed and critical overview of the current and future procedures that offer relief in small and simple matters is given. The current summary order for payment procedure, which was introduced in 1967, did not meet its goals. The article concludes that a new trend is emerging in Belgium, namely keeping small and unchallenged claims outside the judiciary and providing for cheaper and more efficient alternatives.


Stefaan Voet
Stefaan Voet is an Associate Professor of Law at the Katholieke Universiteit Leuven and a Visiting Professor at the Universiteit Hasselt.
Article

Access_open Brazilian Civil Procedure in the ‘Age of Austerity’?

Effectiveness, Speed, and Legal Certainty: Small Claims, Uncontested Claims, and Simplification of Judicial Decisions and Proceedings

Journal Erasmus Law Review, Issue 4 2015
Keywords austerity, civil procedure, access to justice, Brazil, small claims
Authors Antonio Gidi and Hermes Zaneti, Jr.
AbstractAuthor's information

    The current debate in Brazilian Civil Procedure revolves around efficiency, legal certainty, and access to justice, not austerity. As a matter of fact, the debate over austerity is nonexistent in Brazil so far. By expanding the access to justice to a broader portion of the society, the legal system increased the number of cases and the costs associated with the judicial system. But the excess litigation and expense associated with the expansion of access to justice has contradictorily curtailed access to justice. This new situation demands new efforts to increase efficiency and legal certainty, while still increasing access to justice.


Antonio Gidi
Antonio Gidi is Visiting Assistant Professor at the Syracuse University. SJD, University of Pennsylvania Law School; LLM and PhD, PUC-SP University; LLB, Federal University of Bahia.

Hermes Zaneti, Jr.
Hermes Zaneti, Jr. is Professor of Law at the Universidade Federal do Espirito Santo and Prosecutor. PhD in Philosophy and Theory of Law, Università degli Studi di Roma Tre; LLM and PhD in Civil Procedure, Federal University of Rio Grande do Sul (UFRS).
Article

Access_open The Impact of the Economic Downturn in the Spanish Civil Justice System

Journal Erasmus Law Review, Issue 4 2015
Keywords judiciary, judge-made justice, court fees, legal aid, ADR-methods
Authors Laura Carballo Piñeiro and Jordi Nieva Fenoll
AbstractAuthor's information

    The Spanish justice system has been shaken by the economic downturn as many other institutions have. This article addresses in the first place some statistical data that shed light as regards to the number of judges and the costs and length of the procedure in Spain. These figures help to understand, in the second place, the impact of austerity measures on the judiciary, namely, the freeze on the hiring of judges and the establishing of high court fees. While they mainly concern the supply side of justice services, others such cost reductions in legal aid have had, in the third place, an impact on the demand side, driving many citizens to social exclusion and to resorting to self-defence mechanisms. The final part of this article addresses some remedies that may alleviate judiciary’s workload, but that fall short of doing it. All in all, the Spanish justice system seems to require a holistic approach to patch up edges, but one in which the role of judge-made justice in a democratic society has to be central again.


Laura Carballo Piñeiro
Laura Carballo Piñeiro is Associate Professor of Private International Law at the Common Law Department of the University of Santiago de Compostela.

Jordi Nieva Fenoll
Jordi Nieva Fenoll is Professor of Procedure Law at the Administrative and Procedure Law Department of the University of Barcelona.

    This article studies the significance of insights from non-legal disciplines (such as political science, economics, and sociology) for comparative legal research and the methodology connected with such ‘interdisciplinary contextualisation’. Based on a theoretical analysis concerning the nature and methodology of comparative law, the article demonstrates that contextualisation of the analysis of legal rules and case law is required for a meaningful comparison between legal systems. The challenges relating to this contextualisation are illustrated on the basis of a study of the judicial use of comparative legal analysis as a source of inspiration in the judgment of difficult cases. The insights obtained from the theoretical analysis and the example are combined in a final analysis concerning the role and method of interdisciplinary contextualisation in comparative legal analysis conducted by legal scholars and legal practitioners.


Elaine Mak Ph.D.
Endowed Professor of Empirical Study of Public Law, in particular of Rule-of-Law Institutions, at Erasmus School of Law. Contact: mak@law.eur.nl.

    The paper offers a legal theoretical analysis of the disciplinary character of the contemporary practice of legal scholarship. It is assumed that the challenges of interdisciplinary engagement are particularly revealing about the nature of legal scholarship. The paper argues for an understanding of legal scholarship that revolves around cultivating doctrinal knowledge about law. Legal scholarship is characterised as a normative and interpretive discipline that offers an internalist and non-instrumentalist perspective on law. The paper also argues that interdisciplinary engagement is sometimes necessary for legal scholars because some concepts and ideas built into the doctrinal structures of law cannot be made fully intelligible by way of pure normative legal analysis. This point is developed with the help of an epistemological clarification of doctrinal knowledge and anchored in an account of the practice of legal scholarship. The paper explores the implications of this account by way of analysing three paradigms of interdisciplinary engagement that respond to distinctive challenges facing legal scholarship: (1) understanding better the extra-legal origins of legal ideas, (2) managing discursive encounters that can generate frictions between disciplinary perspectives, and (3) building the knowledge base to handle challenge of validating policy initiatives that aim at changing the law. In different ways, all three challenges may require legal scholars to build competence in other disciplines. The third paradigm has particular relevance for understanding the methodological profile of legal scholarship. Legal scholarship is the only discipline with specific focus on how the social environment affects the doctrinal structures of law.


Matyas Bodig
Dr Matyas Bodig is Senior lecturer at the University of Aberdeen School of Law, Aberdeen, UK.
Article

Access_open Legal Advice in Police Custody: From Europe to a Local Police Station

Journal Erasmus Law Review, Issue 4 2014
Keywords legal advice, police interrogation, European Union, England and Wales, France
Authors Anna Ogorodova and Taru Spronken
AbstractAuthor's information

    In October 2013, the European Union adopted a Directive, which guarantees, inter alia, the right of access to a lawyer to suspects of criminal offences from the outset of police custody and during police interrogation. However, adoption of the relevant legislation is not sufficient to ensure that this right becomes effective in practice. A range of practical measures will have to be taken by the Member States’ authorities and the legal profession to effectuate the implementation of the right to custodial legal advice. This article aims to identify the practical factors that may influence the implementation of the Directive, based on the findings of a recent normative and empirical study conducted by the authors. The research was carried out in four European jurisdictions (England and Wales, France, the Netherlands and Scotland), and it consisted of analysis of regulations, observations of daily practice in police stations, accompanying lawyers who provided custodial legal advice, and interviews with criminal justice practitioners. The article provides a range of recommendations on the practical measures to be undertaken by the EU Member States and national Bar associations aiming at improving the protection of suspects’ rights in police custody in practice.


Anna Ogorodova
Anna Ogorodova, LLM is PhD researcher at the University of Maastricht.

Taru Spronken
Dr Taru Spronken is Professor of Criminal Law and Criminal Procedure at Maastricht University and Advocate General at the Supreme Court in the Netherlands.
Article

Access_open Juveniles’ Right to Counsel during Police Interrogations: An Interdisciplinary Analysis of a Youth-Specific Approach, with a Particular Focus on the Netherlands

Journal Erasmus Law Review, Issue 4 2014
Keywords legal representation, counsel, juvenile justice, police interrogations, children’s rights
Authors Prof. Dr. Ton Liefaard Ph.D. LL.M and Yannick van den Brink
AbstractAuthor's information

    The right to counsel of juveniles at the stage of police interrogations has gained significant attention since the Salduz ruling of the European Court on Human Rights in 2008. The legislative and policy developments that have taken place since then and that are still ongoing – both on a regional (European) and domestic (Dutch) level – reveal a shared belief that juvenile suspects must be awarded special protection in this phase of the criminal justice proceedings. This calls for a youth-specific approach as fundamentally different from the common approach for adults. At the same time, there seems to be ambivalence concerning the justification and concrete implications of such a youth-specific approach. This article aims to clarify the underlying rationale and significance of a youth specific approach to the right to counsel at the stage of police interrogations on the basis of an interdisciplinary analysis of European Court on Human Rights case law, international children’s rights standards and relevant developmental psychological insights. In addition, this article aims to position this right of juveniles in conflict with the law in the particular context of the Dutch juvenile justice system and provide concrete recommendations to the Dutch legislator.


Prof. Dr. Ton Liefaard Ph.D. LL.M
Prof. Dr. T. Liefaard is Professor of Children’s Rights (UNICEF Chair) at Leiden Law School, Department of Child Law; t.liefaard@law.leidenuniv.nl.

Yannick van den Brink
Y.N. van den Brink, LL.M, MA, is PhD researcher at Leiden Law School, Department of Child Law; y.n.van.den.brink@law.leidenuniv.nl.
Article

Access_open Legal Assistance and Police Interrogation

(Problematic Aspects of) Dutch Criminal Procedure in Relation to European Union and the Council of Europe

Journal Erasmus Law Review, Issue 4 2014
Keywords Legal assistance, police interrogation, Dutch Criminal Proceedings, EU Directive
Authors Paul Mevis and Joost Verbaan
AbstractAuthor's information

    This paper discusses the rise of a fundamental issue in Dutch criminal proceedings. The presence of a lawyer prior to and during police interrogations has for a long time been a matter open for debate in the Netherlands. Allowing legal assistance during and prior to police interrogations has been researched on several occasions in the previous century and the beginning of this century. In the Netherlands, one of the most important reasons for not admitting legal assistance was and is founded in the confident reliance on the professionalism and integrity of police officers and justice officials in dealing with the interests of suspects. However, after the Salduz case (ECHR 27 November 2008, Appl. No. 36391/02, Salduz v. Turkey), the Dutch government was compelled to draft legal provisions in order to facilitate legal assistance during and prior to police interrogations. The initial drafts still contained a hesitant approach on admitting the lawyer to the actual interrogation. The EU-Directive of November 2013 (Pb EU 2013, L249) set out further reaching standards compelling the Dutch government to create new drafts. In a ruling of April 2014, the Dutch Supreme Court (ECLI:NL:2014:770) argued that the judgements of the ECtHR were too casuistic to derive an absolute right to have a lawyer present during police interrogation. However, they urged the legislator to draft legislation on this matter and warned that its judgement in this could be altered in future caused by legal developments. The Dutch legislator already proposed new draft legislation in February. In this paper it is examined whether the provisions of the new drafts meet the standards as set out in the EU-Directive as well as by the ECtHR.


Paul Mevis
Paul Mevis is Professor of Criminal Law and Criminal Procedure at the Faculty of Law of the Erasmus. He has been a visiting professor at the universities of Münster, Mmabato (South Africa) and in Moldavia, the Ukrain and in Frankfurt an der Oder. Besides his academic activities, Paul Mevis is Honorary Judge at the Criminal Court of Rotterdam and Honorary Judge at the Court of Appeal in Amsterdam, since 1994 and 1998 respectively. He has been parttime Judge at the Court of Arnhem (1990-1994) and is member of the Commission of Supervision of prisons (2006-2008). Paul Mevis is also member of the board of editors of several journals in the field of criminal law and human rights law and commentator for the journal ‘Nederlandse Jurisprudentie’ on criminal cases. He was chairman of the ‘Commissie Strafvordelijke gegevensvergaring in de informatiemaatschappij’ (2000-2001), of which the report has lead to the Bill of the same name. He is a member of the School of Human Rights Research and the Research School on Safety and Security in Society.

Joost Verbaan
Mr. J.H.J. (Joost) Verbaan is an assistant-professor at the Erasmus School of Law of the Erasmus Universiteit Rotterdam. He teaches Criminal Law and Criminal Procedure law. Mr. Verbaan is the Managing Director of the Erasmus Center for Police Studies (ECPS). The ECPS organises courses on criminal and criminal procedure law for law enforcement agencies as well as the prosecution. Mr. Verbaan has been involved in many researches in the practical field of investigation. He has taken part in the research for the Governmental Institute of Scientific Research and Documentation on the effects of the presence of an attorney during the first police interrogation.For the same institute together with professor Mevis he researched the Modalities of Serving in comparative law perspective.He served the secretary of the Committee to draft a new Dutch Antillean Criminal Code and served the secretary of the Committee to draft a new Criminal Code for Aruba, Sint Maarten and Curacao. He served the secretary of the Committee to Draft a common Criminal Procedure Code in the Caribbean regions of Aruba, Curacao , Sint Maarten and the BES-territories. In the republic of Surinam Mr. Verbaan has worked in the legal advisory board of the Committee founded in order to codify a new Criminal Code for the republic of Surinam.

Willem-Jan Verhoeven Ph.D.
Erasmus School of Law, Department of Criminology, Erasmus University Rotterdam.

    The Rome I Regulation on the law applicable to contractual obligations contains several provisions aimed explicitly at the protection of ‘weaker’ contracting parties, such as consumers and employees. However, in addition to this, the interests of weaker parties are sometimes also safeguarded through the application of ‘overriding mandatory provisions’, which are superimposed on the law applicable to the contract to protect a fundamental interest of a Member State. This article is an attempt to clarify the extent to which the concept of overriding mandatory provisions may serve as a vehicle for weaker party protection. To do this, it examines the definition and limitations of the concept and its relation to conflict of laws rules based on the protective principle. Finally, the article seeks to establish whether the doctrine of overriding mandatory provisions remains relevant in the case of harmonisation of substantive law at the EU level, for which it will differentiate between full and minimum harmonisation.


Laura Maria van Bochove Ph.D.
Assistant professor in the Department of Private International and Comparative Law at the Erasmus School of Law. The author would like to thank the reviewers for their comments.
Article

Access_open Faith and Scepticism in Private International Law: Trust, Governance, Politics, and Foreign Judgments

Journal Erasmus Law Review, Issue 3 2014
Keywords private international law, conflict of laws, foreign judgments, European Union, United States
Authors Christopher Whytock M.S., Ph.D., J.D.
AbstractAuthor's information

    In both the European Union (EU) and the United States (US), the law governing the enforcement of foreign judgments is evolving, but in different directions. EU law, especially after the elimination of exequatur by the 2012 ’Recast’ of the Brussels I Regulation, increasingly facilitates enforcement in member states of judgments of other member states’ courts, reflecting growing faith in a multilateral private international law approach to foreign judgments. In US law, on the other hand, increasingly widespread adoption of state legislation based on the 2005 Uniform Foreign-Country Money Judgments Recognition Act (2005 Act), which adds new case-specific grounds for refusing enforcement, suggests growing scepticism. In this essay, I explore possible reasons for these diverging trends. I begin with the most obvious explanation: the Brussels framework governs the effect of internal EU member state judgments within the EU, whereas the 2005 Act governs the effect of external foreign country judgments within the US. One would expect more mutual trust – and thus more faith in foreign judgment enforcement – internally than externally. But I argue that this mutual trust explanation is only partially satisfactory. I therefore sketch out two other possible explanations. One is that the different trends in EU and US law are a result of an emphasis on ’governance values’ in EU law and an emphasis on ’rights values’ in US law. Another explanation – and perhaps the most fundamental one – is that these trends are ultimately traceable to politics.


Christopher Whytock M.S., Ph.D., J.D.
Christopher Whytock is Professor of Law and Political Science at the University of California, Irvine School of Law.
Article

Access_open The Role of Private International Law in Corporate Social Responsibility

Journal Erasmus Law Review, Issue 3 2014
Keywords CSR, conflicts of law, Kiobel, Shell
Authors Geert Van Calster Ph.D.
AbstractAuthor's information

    This contribution firstly reviews developments in the EU and in the United States on corporate social responsibility and conflict of laws. It concludes with reference to some related themes, in particular on the piercing of the corporate veil and with some remarks on compliance strategy, and compliance reality, for corporations.


Geert Van Calster Ph.D.
Geert van Calster is professor at the University of Leuven and Head of Leuven Law's department of European and international law.
Article

Access_open Global Citizens and Family Relations

Journal Erasmus Law Review, Issue 3 2014
Keywords global governance, family relations, nationality, habitual residence, party autonomy
Authors Professor Yuko Nishitani Ph.D.
AbstractAuthor's information

    As globalisation progresses, cross-border movements of people are becoming dynamic and multilateral. The existence of different groups and minorities within the community renders the society multiethnic and multicultural. As individuals acquire new affiliation and belonging, the conventional conflict of laws methods may no longer be viable and should be subject to a thorough re-examination. Against this background, this paper analyses appropriate conflicts rules in international family relations to reflect an individual’s identity. Furthermore, in light of the contemporary law fragmentation, this study also analyses interactions between state law and non-state cultural, religious or customary norms.


Professor Yuko Nishitani Ph.D.
Professor at Kyushu University Faculty of Law, Japan. This work was supported by the JSPS Grants-in-Aid for Scientific Research (C) (Grant Number 26380063). The author sincerely thanks Professor Carol Lawson (Nagoya University) and Ms. Nettie Dekker for their devoted editing work.

Laura Carballo Piñeiro
Associate Professor at the Faculty of Law, University of Santiago de Compostela.

Xandra Kramer
Professor at Erasmus School of Law, Erasmus University Rotterdam, visiting scholar at Stanford Law School.
Article

Access_open Private International Law: An Appropriate Means to Regulate Transnational Employment in the European Union?

Journal Erasmus Law Review, Issue 3 2014
Keywords private international law, applicable law, overriding mandatory provisions, transnational employment relations, posting of workers
Authors Prof.dr. Aukje A.H. Ms van Hoek
AbstractAuthor's information

    The regulation of transnational employment in the European Union operates at the crossroads between private international law and internal market rules. The private international law rules are currently laid down in the Rome I Regulation. This regulation is complemented by the Posted Workers Directive, a directive based on the competences of the EU in the field of free movement of services. The current contribution first describes the rules which determine the law applicable to the employment contract under Article 8 Rome I Regulation and the way these rules are interpreted by the CJEU before critically analysing these rules and the reasoning that seems to lie behind the court’s interpretation (section 2). The law applying to the contract is, however, only of limited relevance for the protection of posted workers. This is due inter alia to the mandatory application of certain rules of the country to which the workers are posted, even if a different law governs their contract. This application of host state law is based on Article 9 Rome I Regulation in conjunction with the Posted Workers Directive. Section 3 describes the content of these rules and the – to some extent still undecided – interaction between the Rome I Regulation and the PWD. The conclusion will be that there is an uneasy match between the interests informing private international law and the interests of the internal market, which is not likely to be resolved in the near future.


Prof.dr. Aukje A.H. Ms van Hoek
Aukje van Hoek is Professor at the University of Amsterdam.
Article

Access_open The Ambivalent Shadow of the Pre-Wilsonian Rise of International Law

Journal Erasmus Law Review, Issue 2 2014
Keywords American Society of International Law, Peace-Through-Law Movement, Harvard Law Library: League of Nations, President Woodrow Wilson, Pre-Wilsonianism
Authors Dr Ignacio de la Rasilla del Moral Ph.D.
AbstractAuthor's information

    The generation of American international lawyers who founded the American Society of International Law in 1906 and nurtured the soil for what has been retrospectively called a 'moralistic-legalistic approach to international relations' remains little studied. A survey of the rise of international legal literature in the United States from the mid-nineteenth century to the eve of the Great War serves as a backdrop to the examination of the boosting effect on international law of the Spanish American War in 1898. An examination of the Insular Cases before the US Supreme Court is then accompanied by the analysis of a number of influential factors behind the pre-war rise of international law in the United States. The work concludes with an examination of the rise of natural law doctrines in international law during the interwar period and the critiques addressed by the realist founders of the field of 'international relations' to the 'moralistic-legalistic approach to international relations'.


Dr Ignacio de la Rasilla del Moral Ph.D.
Ignacio de la Rasilla del Moral is Lecturer in Law at the Brunel Law School of Brunel University, London. In the Spring of 2014 he served as Visiting Research Fellow at the Lauterpacht Research Centre for International Law of the University of Cambridge as recipient of a British Academy/Leverhulme Small Research Grant.
Article

Access_open Unexpected Circumstances arising from World War I and its Aftermath: ‘Open’ versus ‘Closed’ Legal Systems

Journal Erasmus Law Review, Issue 2 2014
Keywords First World War, law of obligations, unforeseen circumstances, force majeure, frustration of contracts
Authors Janwillem Oosterhuis Ph.D.
AbstractAuthor's information

    European jurisdictions can be distinguished in ‘open’ and ‘closed’ legal systems in respect of their approach to unexpected circumstances occurring in contractual relations. In this article, it will be argued that this distinction can be related to the judiciary’s reaction in certain countries to the economic consequences of World War I. The first point to be highlighted will be the rather strict approach to unexpected circumstances in contract law that many jurisdictions had before the war – including England, France, Germany, and the Netherlands. Secondly, the judicial approach in England, France, Germany, and the Netherlands to unexpected circumstances arising from the war will be briefly analysed. It will appear that all of the aforementioned jurisdictions remained ‘closed’. Subsequently, the reaction of the judiciary in these jurisdictions to the economic circumstances in the aftermath of the war, (hyper)inflation in particular, will be analysed. Germany, which experienced hyperinflation in the immediate aftermath of the war, developed an ‘open’ system, using the doctrine of the Wegfall der Geschäftsgrundlage. In the Netherlands, this experience failed to have an impact: indeed, in judicial practice the Netherlands appears to have a ‘closed’ legal system nevertheless, save for an ‘exceptional’ remedy in the new Dutch Civil Code, Article 6:258 of the Burgerlijk Wetboek (1992). In conclusion, the hypothesis is put forward that generally only in jurisdictions that have experienced exceptional economic upheaval, such as the hyperinflation in the wake of World War I, ‘exceptional’ remedies addressing unexpected circumstances can have a lasting effect on the legal system.


Janwillem Oosterhuis Ph.D.
Janwillem Oosterhuis is Assistant Professor in Methods and Foundations of Law at the Maastricht University Faculty of Law.

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

Journal Erasmus Law Review, Issue 1 2014
Keywords tax competition, tax coordination, European Union, fiscal federalism
Authors Thushyanthan Baskaran Ph.D. and Mariana Lopes da Fonseca
AbstractAuthor's information

    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.
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