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Article

Access_open At the Crossroads of National and European Union Law. Experiences of National Judges in a Multi-level Legal Order

Journal Erasmus Law Review, Issue 3/4 2013
Keywords national judges, legal pluralism, application of EU law, legal consciousness, supremacy and direct effect of EU law
Authors Urszula Jaremba Ph.D.
AbstractAuthor's information

    The notion and theory of legal pluralism have been witnessing an increasing interest on part of scholars. The theory that originates from the legal anthropological studies and is one of the major topical streams in the realm of socio-legal studies slowly but steady started to become a point of departure for other disciplines. Unavoidably it has also gained attention from the scholars in the realm of the law of the European Union. It is the aim of the present article to illustrate the legal reality in which the law of the Union and the national laws coexist and intertwine with each other and, subsequently, to provide some insight on the manner national judges personally construct their own understanding of this complex legal architecture and the problems they come across in that respect. In that sense, the present article not only illustrates the new, pluralistic legal environment that came into being with the founding of the Communities, later the European Union, but also adds another dimension to this by presenting selected, empirical data on how national judges in several Member States of the EU individually perceive, adapt to, experience and make sense of this reality of overlapping and intertwining legal orders. Thus, the principal aim of this article is to illustrate how the pluralistic legal system works in the mind of a national judge and to capture the more day-to-day legal reality by showing how the law works on the ground through the lived experiences of national judges.


Urszula Jaremba Ph.D.
Urszula Jaremba, PhD, assistant professor at the Department of European Union Law, School of Law, Erasmus University Rotterdam. I am grateful to the editors of this Special Issue: Prof. Dr. Sanne Taekema and Dr. Wibo van Rossum as well as to the two anonymous reviewers for their useful comments. I am also indebted to Dr. Tobias Nowak for giving me his consent to use the data concerning the Dutch and German judges in this article. This article is mostly based on a doctoral research project that resulted in a doctoral manuscript titled ‘Polish Civil Judges as European Union Law Judges: Knowledge, Experiences and Attitudes’, defended on the 5th of October 2012.
Article

Access_open Towards Context-Specific Directors' Duties and Enforcement Mechanisms in the Banking Sector?

Journal Erasmus Law Review, Issue 2 2013
Keywords banking sector, directors' duties, financial crisis, context-specific doctrines, public enforcement
Authors Wasima Khan LL.M.
AbstractAuthor's information

    The global financial crisis gives reason to revisit the debate on directors’ duties in corporate law, mainly with regard to the context of banks. This article explores the need, rationale and the potential for the introduction of context-specific directors’ duties and enforcement mechanisms in the banking sector in the Netherlands from a comparative perspective.
    Chiefly, two legal strategies can be derived from the post-crisis developments and calls for legal reforms for the need and rationale to sharpen directors’ duties in the context of the banking sector in order to meet societal demands. The two strategies consist in shifting the scope of directors’ duties (i) towards clients’ interests and (ii) towards the public interest.
    Subsequently, this article explores the potential for context-specific directors’ duties and accompanying enforcement mechanisms. Firstly, it is argued that the current legal framework allows for the judicial development -specific approach. Secondly, such context-specific directors’ duties should be enforced through public-enforcement mechanisms to enhance the accountability of bank directors towards the public interest but currently there are too much barriers for implementation in practice.
    In conclusion, this article argues that there is indeed a need, rationale and potential for context-specific directors’ duties; yet there are several major obstacles for the implementation of accompanying public-enforcement mechanisms. As a result, the introduction of context-specific directors’ duties in the banking sector may as yet entail nothing more than wishful thinking because it will merely end in toothless ambitions if the lack of accompanying enforcement mechanisms remains intact.


Wasima Khan LL.M.
PhD Candidate at the Erasmus School of Law, Erasmus University Rotterdam. The author wishes to express her gratitude for valuable comments on an earlier draft of this article from Prof. Vino Timmerman and Prof. Bastiaan F. Assink at the Erasmus School of Law, Erasmus University Rotterdam, as well as the Journal‘s editors and peer reviewers. Any errors remain those of the author.

Lucas Lixinski
Lecturer, University of New South Wales (Sydney, Australia); PhD in Law, European University Institute (Florence, Italy).
Artikel

Access_open Through the Looking Glass of Global Constitutionalism and Global Administrative Law

Different Stories About the Crisis in Global Water Governance?

Journal Erasmus Law Review, Issue 1 2013
Keywords global water governance, global constitutionalism, global administrative law, water crisis, integrated water resources management
Authors Mónika Ambrus
AbstractAuthor's information

    In addition to (or sometimes rather than primarily) attributing it to water scarcity, water crisis has been described as a ‘crisis of governance’; with the word ‘crisis’ also indicating that water governance lacks (full) legitimacy. The article undertakes the task to analyse the current status of global water governance (GWG) from the perspective of two competing theories relating to the legitimacy of global governance, namely global constitutionalism (GC) and global administrative law (GAL). Having mapped the current legal framework of GWG from these two perspectives, it is discussed how these theories might shape GWG and how this shaping could contribute to solving the water crisis. In addition, it is also explored whether reading one of the most accepted proposals for legitimising global water governance, the concept of ‘integrated water resources management’ (IWRM), through the lenses of either GC or GAL would have an impact on how this concept is interpreted, and whether it can be a useful mechanism to address the water crisis. The use of two theories analysing the same subject matter provides interesting insights into global water governance and the nature of the water crisis as well as the relationship between these two theories.


Mónika Ambrus
Assistant professor of public international law at the Erasmus School of Law, Erasmus University Rotterdam.
Artikel

Access_open The Value of Narratives

The India-USA Nuclear Deal in Terms of Fragmentation, Pluralism, Constitutionalisation and Global Administrative Law

Journal Erasmus Law Review, Issue 1 2013
Keywords India-US Nuclear Deal, Nuclear Energy Cooperation, Non-Proliferation Treaty, Fragmentation, Constitutionalisation, Pluralism, Global Administrative Law
Authors Surabhi Ranganathan
AbstractAuthor's information

    ‘Fragmentation’, ‘pluralism’, ‘constitutionalisation’ and ‘global administrative law’ are among the most dominant narratives of international legal order at present. Each narrative makes a descriptive claim about the current state of the international legal order, and outlines a normative vision for this order. Yet we must not lose sight of the conflicts between, and the contingency of these, and other narratives. This article seeks to recover both conflicts and contingency by showing how each may be used to explain a given event: the inauguration of a bilateral civil nuclear cooperation between the United State and India, better known as the ‘India-US nuclear deal’. I explain how the four narratives may be, and were, co-opted at different times to justify or critique the ‘deal’. This exercise serve two purposes: the application of four narratives reveal the various facets of the deal, and by its example the deal illuminates the stakes attached to each of the four narratives. In a final section, I reflect on why these four narratives enjoy their influential status in international legal scholarship.


Surabhi Ranganathan
Junior Research Fellow, King’s College/Lauterpacht Centre for International Law, University of Cambridge.
Artikel

Access_open Revisiting the Humanisation of International Law: Limits and Potential

Obligations Erga Omnes, Hierarchy of Rules and the Principle of Due Diligence as the Basis for Further Humanisation

Journal Erasmus Law Review, Issue 1 2013
Keywords humanisation, constitutionalism, legal positivism, human rights, erga omnes, due diligence, positive obligations, normative hierarchy, proportionality
Authors Dr. Vassilis P. Tzevelekos
AbstractAuthor's information

    The article critically evaluates the theory of the humanisation of international law. First, it argues that despite human rights having impact on (other areas of) international law, this trend has in the past been somewhat inflated. A number of examples are given where human rights have been tested against other objectives pursued by international law, with humanisation revealing its limits and actual dimensions. The second argument consists in identifying and highlighting obligations erga omnes (partes) and the principle of due diligence as two ‘systemic’ tools, that are central to the humanisation of international law. Both these tools form part of modern positive law, but may also make a positive contribution towards the direction of deeper humanisation in international law, having the potential, inter alia, to limit state will, establish occasional material normative hierarchy consisting in conditional priority in the fulfilment of human rights, give a communitarian tone to international law and invite states to be pro-active in the collective protection of their common interests and values. In its conclusions, the article offers a plausible explanation about the paradox it identifies of the limits of the humanisation on the one hand, and its potential for further development on the other. For, it is inherent in international law that the line separating the law from deontology is thin. The process of humanisation needs to be balanced with the other objectives of international law as well as reconciled with the decentralised and sovereignist origins of the pluralistic international legal system.


Dr. Vassilis P. Tzevelekos
Lecturer in Public International Law, University of Hull Law School; Attorney, Athens’ Bar. PhD and M.Res, European University Institute; MA, European Political and Administrative Studies, College of Europe; DEA Droit international public et organisations internationales, Paris 1 Panthéon-Sorbonne; LLB, National and Kapodistrian University of Athens.
Artikel

Access_open International Criminal Law and Constitutionalisation

On Hegemonic Narratives in Progress

Journal Erasmus Law Review, Issue 1 2013
Keywords hegemony, constitutionalism, constitutionalisation, international criminal law
Authors Marjan Ajevski
AbstractAuthor's information

    As we move towards constructing narratives regarding the future outlook of global governance, constitutionalisation among them, the hope is that whatever shape this world order takes it will, somehow, forestall or hinder the possibility of a hegemonic order. This article tries to deconstruct the notion of hegemony and claims that as it currently stands it is useless in doing its critical work since every successful narrative will end up being hegemonic because it will employ the ‘hegemonic technique’ of presenting a particular value (or value system), a particular viewpoint, as universal or at least applying to those who do not share it. The only way for a narrative in this discourse not to be hegemonic would be for it to be either truly universal and find a perspective that stems from nowhere and everywhere – a divine perspective – or purely descriptive; the first being an impossibility for fallible beings and the other not worth engaging with since it has nothing to say about how things should be structured or decided in a specific situation.


Marjan Ajevski
Post-Doctoral research fellow part of the MultiRights project – an ERC Advanced Grant on the Legitimacy of Multi-Level Human Rights Judiciary – <www.MultiRights.net>; and PluriCourts, a Research Council of Norway Centre of Excellence – <www.PluriCourts.net>, Norwegian Centre of Human Rights, Faculty of Law, University of Oslo. I can be contacted at marjan.ajevski@nchr.uio.no.

Xandra Kramer
Professor at Erasmus School of Law, Erasmus University Rotterdam. This contribution and the editorship of this issue has been made possible with the support of the Netherlands Organisation for Scientific Research (NWO) within its Innovational Research Incentives Scheme (VIDI).

Astrid Stadler
Professor of Law, University of Konstanz, Germany; Chair of Comparative Mass Litigation, Erasmus University, Rotterdam.

Simone Glanert
Senior Lecturer in French and European Comparative Law, Kent Law School, Eliot College, Canterbury, Kent, CT2 7NS, UK; S.Glanert@kent.ac.uk. I presented early formulations of this argument at the RELINE Network for Interdisciplinary Studies in Language and the Law Seminar, Faculty of Law, University of Copenhagen, on 25 October 2011; at the Faculté de Droit, Université de Montréal, on 27 January 2012; at the 4th Annual Meeting of the Irish Society of Comparative Law (ISCL), Faculty of Law, University of Cork, on 2 March 2012; and at the Faculté de Droit, Université de Grenoble, on 22 March 2012. I am grateful to Anne Lise Kjær, Jean-Franois Gaudreault-DesBiens, Bénédicte Fuller-Sage and David Dechenaud for their kind expression of interest in my work and generous invitations.

Wesley Kaufmann

Arjen van Witteloostuijn

Alessandra Arcuri
Associate Professor of International Economic Law and Law and Economics, Erasmus School of Law, Erasmus University Rotterdam. I am grateful to the Editorial Board of the Erasmus Law Review, and in particular to Andria Naudé-Fourie for her precious support. Thanks also to Professor Yuwen Li, to all the referees who provided valuable feedback regarding the contributions in this issue, and to the participants in the Symposium on ‘Food Regulatory Regimes and the Challenges Ahead’, held during the Society for Risk Analysis — Europe Conference, King's College London, 21–23 June 2010, where some of the articles published in this issue were originally presented.

Elena Fagotto
Rotterdam Institute of Law and Economics, Erasmus University Rotterdam; Ash Center for Democratic Governance and Innovation, Harvard Kennedy School. E-mail: fagotto@frg.eur.nl. The author wishes to thank Alessandra Arcuri, Michael Faure, participants in the European Society for Risk Analysis Conference in London (June 2010) and an anonymous referee for valuable comments. I am also deeply indebted to Archon Fung at Harvard Kennedy School.

Alberto Alemanno
Associate Professor of Law, HEC Paris, and Editor of the European Journal of Risk Regulation. The author wishes to thank two anonymous referees for their valuable inputs. Comments are welcome at: <alemanno@hec.fr>.

Bernd van der Meulen
B.M.J. van der Meulen is Professor of Law and Governance at Wageningen University, the Netherlands <http://www.law.wur.nl/uk>; Chairman of the Dutch Food Law Association <http://www.nvlr.nl>; Director of the European Institute for Food Law <http://www.food-law.nl>; member of the Board of Directors of the European Food Law Association <http://www.efla-aeda.org>; and member of the Editorial Board of the European Food and Feed Law Review <http://www.lexxion.eu/effl>. This contribution elaborates on previous publications, such as: Bernd van der Meulen and Menno van der Velde, European Food Law Handbook (2008), available at: <http://www.wageningenacademic.com/foodlaw>; Irene Scholten-Verheijen, Bernd van der Meulen and Theo Appelhof, Landkaart levensmiddelenrecht (2009); and Bernd van der Meulen, Harry Bremmers, Leon Geyer, Nidhi Gupta and Hans Bouwmeester, Nano Food Regulation: Towards an Adaptive Regulatory Infrastructure for Nanotechnology Applications in the Food Sector (forthcoming). Many thanks to Prof. Margaret Rosso Grossman, Anna Szajkowska and Irene Scholten-Verheijen for their valuable comments and suggestions. Comments are welcome at <Bernd.vanderMeulen@wur.nl>.
Article

Access_open Prevention, precaution, logic and law

The relationship between the precautionary principle and the preventative principle in international law and associated questions

Journal Erasmus Law Review, Issue 2 2009
Authors Arie Trouwborst
Author's information

Arie Trouwborst
Arie Trouwborst is a lecturer in environmental law at Tilburg University, the Netherlands.

Charles Vlek
Charles Vlek is professor emeritus of environmental psychology and decision research in the Faculty of Behavioural and Social Sciences, Groningen University, Groningen The Netherlands; <c.a.j.vlek@rug.nl>. The author has profited from a three-year period of chairing an advisory committee of the Health Council of The Netherlands (see Health Council, ‘Voorzorg met Rede’ [Precaution with Reason] no. 2008/18 (The Hague: Gezondheidsraad 2008)). Special thanks are due to staff members Wim Passchier, Nienke van Kuijeren, and Harrie van Dijk, and to the various committee members. However, since the views and conclusions in the present paper also result from substantial additional work, they are the personal responsibility of the author.

Matthias Borgers
Both authors are Professors of Criminal Law and Criminal Procedure at the VU University in Amsterdam. This article is based on M.J. Borgers, De vlucht naar voren (The way forward) VU inaugural lecture (The Hague: Boom Juridische Uitgevers 2007) and E. van Sliedregt, Tien tegen één (Ten to One), VU inaugural lecture (The Hague: Boom Juridische Uitgevers 2009).

Elies van Sliedregt
Both authors are Professors of Criminal Law and Criminal Procedure at the VU University in Amsterdam. This article is based on M.J. Borgers, De vlucht naar voren (The way forward) VU inaugural lecture (The Hague: Boom Juridische Uitgevers 2007) and E. van Sliedregt, Tien tegen één (Ten to One), VU inaugural lecture (The Hague: Boom Juridische Uitgevers 2009).

Siri Gloppen
Professor of Comparative Politics, University of Bergen and Head of the Courts in Transition research programme at the Chr. Michelsen Institute, Bergen, Norway. The author would like to thank Ole Frithjof Norheim, Bruce M. Wilson and the anonymous referees for constructive comments.

Fons Coomans
UNESCO Chair in Human Rights and Peace, Faculty of Law, Maastricht University.
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