Search result: 75 articles

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    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.

    This paper examines three Inter-American Court (IACtHR) cases on behalf of the Enxet-Sur and Sanapana claims for communal territory in Paraguay. I argue that while the adjudication of the cases was successful, the aftereffects of adjudication have produced new legal geographies that threaten to undermine the advances made by adjudication. Structured in five parts, the paper begins with an overview of the opportunities and challenges to Indigenous rights in Paraguay followed by a detailed discussion of the adjudication of the Yakye Axa, Sawhoyamaxa, and Xákmok Kásek cases. Next, I draw from extensive ethnographic research investigating these cases in Paraguay to consider how implementation actually takes place and with what effects on the three claimant communities. The paper encourages a discussion between geographers and legal scholars, suggesting that adjudication only leads to greater social justice if it is coupled with effective and meaningful implementation.


Joel E. Correia Ph.D.
Postdoctoral Research Associate in the Center for Latin American Studies at the University of Arizona.

    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.

    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 The Questionable Legitimacy of the OECD/G20 BEPS Project

Journal Erasmus Law Review, Issue 2 2017
Keywords base erosion and profit shifting, OECD, G20, legitimacy, international tax reform
Authors Sissie Fung
AbstractAuthor's information

    The global financial crisis of 2008 and the following public uproar over offshore tax evasion and corporate aggressive tax planning scandals gave rise to unprecedented international cooperation on tax information exchange and coordination on corporate tax reforms. At the behest of the G20, the OECD developed a comprehensive package of ‘consensus-based’ policy reform measures aimed to curb base erosion and profit shifting (BEPS) by multinationals and to restore fairness and coherence to the international tax system. The legitimacy of the OECD/G20 BEPS Project, however, has been widely challenged. This paper explores the validity of the legitimacy concerns raised by the various stakeholders regarding the OECD/G20 BEPS Project.


Sissie Fung
Ph.D. Candidate at the Erasmus University Rotterdam and independent tax policy consultant to international organisations, including the Asian Development Bank.
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

Journal Erasmus Law Review, Issue 2 2017
Keywords Global Forum on Transparency and Exchange of Information, exercise of regulatory authority, due process requirements, peer review reports, legitimacy
Authors Leo E.C. Neve
AbstractAuthor's information

    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 Administering Justice and Serving the People

The Tension between the Objective of Judicial Efficiency and Informal Justice in Canadian Access to Justice Initiatives

Journal Erasmus Law Review, Issue 3 2017
Keywords access to justice, procedural law, courts, civil justice reform, comparative law
Authors Catherine Piché
AbstractAuthor's information

    Canada has a complex system of courts that seek to serve Canadians in view of the traditional objectives of civil justice – principally accessibility, efficiency, fairness, efficacy, proportionality and equality. The Canadian court system is generally considered by its users to work well and to have legitimacy. Yet, researchers have found that ‘there is a tendency for people involved in a civil case to become disillusioned about the ability of the system to effect a fair and timely resolution to a civil justice problem’. This article will discuss the ways in which reforms of procedural law and civil justice have originated and continue to be made throughout Canada, both nationally and provincially, as well as the trends and influences in making these reforms. With hundreds of contemporary procedural reforms having been discussed, proposed and/or completed since the first days of Canadian colonisation on a national basis and in the Canadian provinces and territory, providing a detailed analysis will prove challenging. This article will nonetheless provide a review of civil justice and procedural reform issues in Canada, focusing principally, at the provincial level, on the systems of Ontario and Quebec. Importantly, I will seek to reconcile the increasing willingness to have an economically efficient civil justice and the increased power of judges in managing cases, with our court system’s invasion of ADR and its prioritisation of informal modes of adjudication.


Catherine Piché
Dr. Prof. Catherine Piché, Université de Montreal.
Article

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

Journal Erasmus Law Review, Issue 3 2017
Keywords ECtHR, UNHRC, religious manifestations, religious minorities, empirical analysis
Authors Fabienne Bretscher
AbstractAuthor's information

    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.
Editorial

Access_open Introduction

Journal Erasmus Law Review, Issue 3 2017
Authors Kristin Henrard
Author's information

Kristin Henrard
Kristin Henrard is Professor of fundamental rights and minorities at the Erasmus School of Law, more particularly the Department of International and EU Law. She teaches courses on advanced public international law, international criminal law, human rights and on minorities and fundamental rights.
Article

Access_open The Integrity of the Tax System after BEPS: A Shared Responsibility

Journal Erasmus Law Review, Issue 1 2017
Keywords flawed legislation, tax privileges, tax planning, corporate social responsibility, tax professionals
Authors Hans Gribnau
AbstractAuthor's information

    The international tax system is the result of the interaction of different actors who share the responsibility for its integrity. States and multinational corporations both enjoy to a certain extent freedom of choice with regard to their tax behaviour – which entails moral responsibility. Making, interpreting and using tax rules therefore is inevitably a matter of exercising responsibility. Both should abstain from viewing tax laws as a bunch of technical rules to be used as a tool without any intrinsic moral or legal value. States bear primary responsibility for the integrity of the international tax system. They should become more reticent in their use of tax as regulatory instrument – competing with one another for multinationals’ investment. They should also act more responsibly by cooperating to make better rules to prevent aggressive tax planning, which entails a shift in tax payments from very expert taxpayers to other taxpayers. Here, the distributive justice of the tax system and a level playing field should be guaranteed. Multinationals should abstain from putting pressure on states and lobbying for favourable tax rules that disproportionally affect other taxpayers – SMEs and individual taxpayers alike. Multinationals and their tax advisers should avoid irresponsible conduct by not aiming to pay a minimalist amount of (corporate income) taxes – merely staying within the boundaries of the letter of the law. Especially CSR-corporations should assume the responsibility for the integrity of the tax system.


Hans Gribnau
Professor of Tax Law, Fiscal Institute and the Center for Company Law, Tilburg University; Professor of Tax Law, Leiden University, The Netherlands.
Editorial

Access_open Legal Control on Social Control of Sex Offenders in the Community: A European Comparative and Human Rights Perspective

Journal Erasmus Law Review, Issue 2 2016
Keywords social control, folk devils, moral panic, dangerousness, sex offenders
Authors Michiel van der Wolf (Issue Editor)
AbstractAuthor's information

    This paper provides first of all the introduction to this special issue on ‘Legal constraints on the indeterminate control of “dangerous” sex offenders in the community: A European comparative and human rights perspective’. The issue is the outcome of a study that aims at finding the way legal control can not only be an instrument but also be a controller of social control. It is explained what social control is and how the concept of moral panic plays a part in the fact that sex offenders seem to be the folk devils of our time and subsequently pre-eminently the target group of social control at its strongest. Further elaboration of the methodology reveals why focussing on post-sentence (indeterminate) supervision is relevant, as there are hardly any legal constraints in place in comparison with measures of preventive detention. Therefore, a comparative approach within Europe is taken on the basis of country reports from England and Wales, France, Germany, The Netherlands and Spain. In the second part of the paper, the comparative analysis is presented. Similar shifts in attitudes towards sex offenders have led to legislation concerning frameworks of supervision in all countries but in different ways. Legal constraints on these frameworks are searched for in legal (sentencing) theory, the principles of proportionality and least intrusive means, and human rights, mainly as provided in the European Convention on Human Rights to which all the studied countries are subject. Finally, it is discussed what legal constraints on the control of sex offenders in the community are (to be) in place in European jurisdictions, based on the analysis of commonalities and differences found in the comparison.


Michiel van der Wolf (Issue Editor)
Ph.D., LL.M, M.Sc., Reader in Criminal Law (Theory) and Forensic Psychiatry at the Erasmus School of Law; Member of the Editorial Board of the Erasmus Law Review.
Article

Access_open Legal Constraints on the Indeterminate Control of ‘Dangerous’ Sex Offenders in the Community: The English Perspective

Journal Erasmus Law Review, Issue 2 2016
Keywords Dangerous, sex offenders, human rights, community supervision, punishment
Authors Nicola Padfield
AbstractAuthor's information

    This article explores the legal constraints imposed on the rising number of so-called ‘dangerous’ sex offenders in England and Wales, in particular once they have been released from prison into the community. The main methods of constraint are strict licence conditions, Multi-Agency Public Protection Arrangements and civil protective orders such as Sexual Harm Prevention Orders. ‘Control’ in the community is thus widespread, but is difficult to assess whether it is either effective or necessary without a great deal more research and analysis. Post-sentence ‘punishment’ has been largely ignored by both academic lawyers and criminologists. The article concludes that financial austerity might prove to be as important as the human rights agenda in curbing the disproportionate use of powers of control.


Nicola Padfield
Nicola Padfield, MA, Dip Crim, DES, Reader in Criminal and Penal Justice, University of Cambridge. I thank Michiel van der Wolf for involving me in this project and for his many useful insights and comments.
Article

Access_open Legal Constraints on the Indeterminate Control of ‘Dangerous’ Sex Offenders in the Community: The Spanish Perspective

Journal Erasmus Law Review, Issue 2 2016
Keywords Supervised release, supervision, sex offenders, dangerousness, safety measures, societal upheaval, proportionality
Authors Lucía Martínez Garay and Jorge Correcher Mira
AbstractAuthor's information

    This article presents an overview of the legal regime provided in the Spanish system of criminal sanctions regarding the control of dangerous sex offenders in the community. It focuses on the introduction, in 2010, of a post-prison safety measure named supervised release. We describe the context of its introduction in the Spanish Criminal Code, considering the influence of societal upheaval concerning dangerous sex offenders in its development, and also the historical and theoretical features of the Spanish system of criminal sanctions. We also analyse the legal framework of supervised release, the existing case law about it and how the legal doctrine has until now assessed this measure. After this analysis, the main aim of this article consists in evaluating the effectiveness and the proportionality of the measure, according to the principle of minimal constraints and the rehabilitative function of the criminal sanctions in Spanish law, stated in Article 25.2 of the Spanish Constitution.


Lucía Martínez Garay
Lucía Martínez Garay is a Senior Lecturer at the University of Valencia, Department of Criminal Law.

Jorge Correcher Mira
Jorge Correcher Mira, Ph.D., is an Assistant Lecturer at the University of Valencia, Department of Criminal Law.
Article

Access_open Legal Constraints on the Indeterminate Control of ‘Dangerous’ Sex Offenders in the Community: The Dutch Perspective

Journal Erasmus Law Review, Issue 2 2016
Keywords Dutch penal law, preventive supervision, dangerous offenders, human rights, social rehabilitation
Authors Sanne Struijk and Paul Mevis
AbstractAuthor's information

    In the Netherlands, the legal possibilities for post-custodial supervision have been extended considerably in recent years. A currently passed law aims to further increase these possibilities specifically for dangerous (sex) offenders. This law consists of three separate parts that may all result in life-long supervision. In the first two parts, the supervision is embedded in the conditional release after either a prison sentence or the safety measure ‘ter beschikking stelling’ (TBS). This paper focuses on the third part of the law, which introduces an independent supervisory safety measure as a preventive continuation of both a prison sentence and the TBS measure. Inevitably, this new independent sanction raises questions about legitimacy and necessity, on which this paper reflects from a human rights perspective. Against the background of the existing Dutch penal law system, the content of the law is thoroughly assessed in view of the legal framework of the Council of Europe and the legal principles of proportionality and less restrictive means. In the end, we conclude that the supervisory safety measure is not legitimate nor necessary (yet). Apart from the current lack of (empirical evidence of) necessity, we state that there is a real possibility of an infringement of Article 5(4) ECHR and Article 7 ECHR, a lack of legitimising supervision ‘gaps’ in the existing penal law system, and finally a lack of clear legal criteria. Regardless of the potential severity of violent (sex) offenses, to simply justify this supervisory safety measure on the basis of ‘better safe than sorry’ is not enough.


Sanne Struijk
Sanne Struijk, Ph.D., is an Associate Professor at the Erasmus School of Law.

Paul Mevis
Paul Mevis is a Professor at the Erasmus School of Law.
Article

Access_open Legal Constraints on the Indeterminate Control of ‘Dangerous’ Sex Offenders in the Community: The French Perspective

Journal Erasmus Law Review, Issue 2 2016
Keywords Preventive detention, mandatory supervision, sex offenders, retrospective penal laws, legality principle
Authors Martine Herzog-Evans
AbstractAuthor's information

    France literally ‘discovered’ sexual abuse following neighbour Belgium’s Dutroux case in the late 1990s. Since then, sex offenders have been the focus of politicians, media and law-makers’ attention. Further law reforms have aimed at imposing mandatory supervision and treatment, and in rare cases, preventive detention. The legal framework for mandatory supervision and detention is rather complex, ranging from a mixed sentence (custodial and mandatory supervision and treatment upon release or as a stand-alone sentence) to so-called ‘safety measures’, which supposedly do not aim at punishing an offence, but at protecting society. The difference between the concepts of sentences and safety measures is nevertheless rather blurry. In practice, however, courts have used safety measures quite sparingly and have preferred mandatory supervision as attached to a sentence, notably because it is compatible with cardinal legal principles. Procedural constraints have also contributed to this limited use. Moreover, the type of supervision and treatment that can thus be imposed is virtually identical to that of ordinary probation. It is, however, noteworthy that a higher number of offenders with mental health issues who are deemed ‘dangerous’ are placed in special psychiatric units, something that has not drawn much attention on the part of human rights lawyers.


Martine Herzog-Evans
Martine H-Evans, PhD, is a Professor at the Department of Law, Universite de Reims Champagne-Ardenne.
Article

Access_open The Right to Mental Health in the Digital Era

Journal Erasmus Law Review, Issue 3 2016
Keywords E-health, e-mental health, right to health, right to mental health
Authors Fatemeh Kokabisaghi, Iris Bakx and Blerta Zenelaj
AbstractAuthor's information

    People with mental illness usually experience higher rates of disability and mortality. Often, health care systems do not adequately respond to the burden of mental disorders worldwide. The number of health care providers dealing with mental health care is insufficient in many countries. Equal access to necessary health services should be granted to mentally ill people without any discrimination. E-mental health is expected to enhance the quality of care as well as accessibility, availability and affordability of services. This paper examines under what conditions e-mental health can contribute to realising the right to health by using the availability, accessibility, acceptability and quality (AAAQ) framework that is developed by the Committee on Economic, Social and Cultural Rights. Research shows e-mental health facilitates dissemination of information, remote consultation and patient monitoring and might increase access to mental health care. Furthermore, patient participation might increase, and stigma and discrimination might be reduced by the use of e-mental health. However, e-mental health might not increase the access to health care for everyone, such as the digitally illiterate or those who do not have access to the Internet. The affordability of this service, when it is not covered by insurance, can be a barrier to access to this service. In addition, not all e-mental health services are acceptable and of good quality. Policy makers should adopt new legal policies to respond to the present and future developments of modern technologies in health, as well as e-Mental health. To analyse the impact of e-mental health on the right to health, additional research is necessary.


Fatemeh Kokabisaghi
Fatemeh Kokabisaghi, Iris Bakx and Blerta Zenelaj are Ph.D. candidates at the Institute of Health Policy and Management, Erasmus University Rotterdam. All authors contributed equally.

Iris Bakx
Fatemeh Kokabisaghi, Iris Bakx and Blerta Zenelaj are Ph.D. candidates at the Institute of Health Policy and Management, Erasmus University Rotterdam. All authors contributed equally.

Blerta Zenelaj
Fatemeh Kokabisaghi, Iris Bakx and Blerta Zenelaj are Ph.D. candidates at the Institute of Health Policy and Management, Erasmus University Rotterdam. All authors contributed equally.
Article

Access_open ‘We Do Not Hang Around. It Is Forbidden.’

Immigration and the Criminalisation of Youth Hanging around in the Netherlands

Journal Erasmus Law Review, Issue 1 2016
Keywords Criminalisation of youth hanging around, culture of control, immigration and discrimination
Authors Thaddeus Muller
AbstractAuthor's information

    The focus in this article is the ‘criminalisation’ of youth hanging around with the emergence of bans on hanging around. A critical social constructivist approach is used in this study, which draws predominantly on qualitative primary data collected between the late 1980s and 2010s. The article compares indigenous with immigrant youth, which coincides with, respectively, youth in rural communities and youth in urban communities. This study shows that there is discrimination of immigrant youth, which is shaped by several intertwining social phenomena, such as the ‘geography of policing’ – more police in urban areas – familiarity, sharing biographical information (in smaller communities), and the character of the interaction, normalising versus stigmatising. In further research on this topic we have to study (the reaction to) the transgressions of immigrant youth, and compare it with (the reaction to) the transgressions of indigenous youth, which is a blind spot in Dutch criminology.


Thaddeus Muller
Thaddeus Muller, Ph.D., is senior lecturer at the Lancaster University Law School.
Article

Access_open Harmony, Law and Criminal Reconciliation in China: A Historical Perspective

Journal Erasmus Law Review, Issue 1 2016
Keywords Criminal reconciliation, Confucianism, decentralisation, centralisation
Authors Wei Pei
AbstractAuthor's information

    In 2012, China revised its Criminal Procedure Law (2012 CPL). One of the major changes is its official approval of the use of victim-offender reconciliation, or ‘criminal reconciliation’ in certain public prosecution cases. This change, on the one hand, echoes the Confucian doctrine that favours harmonious inter-personal relationships and mediation, while, on the other hand, it deviates from the direction of legal reforms dating from the 1970s through the late 1990s. Questions have emerged concerning not only the cause of this change in legal norms but also the proper position of criminal reconciliation in the current criminal justice system in China. The answers to these questions largely rely on understanding the role of traditional informal dispute resolution as well as its interaction with legal norms. Criminal reconciliation in ancient China functioned as a means to centralise imperial power by decentralizing decentralising its administration. Abolishing or enabling such a mechanism in law is merely a small part of the government’s strategy to react to political or social crises and to maintain social stability. However, its actual effect depends on the vitality of Confucianism, which in turn relies on the economic foundation and corresponding structure of society.


Wei Pei
Wei Pei, Ph.D., is an Associate Professor at the Beihang School of Law in the Beihang University.
Article

Access_open Cutting Corners or Enhancing Efficiency?

Simplified Procedures and the Israeli Quest to Speed up Justice

Journal Erasmus Law Review, Issue 4 2015
Keywords Israel, austerity, civil procedure, simplified procedures, small claims
Authors Ehud Brosh
AbstractAuthor's information

    Israel was spared the worst of the world financial crisis of 2008-2009. However, austerity concerns are by no means invisible in the developments in the field of civil procedure. These concerns correlate heavily with the long-standing Israeli preoccupation with ‘speeding up’ justice. An array of simplified procedural tracks, aimed at addressing the perceived inadequacy of ‘standard’ procedure, have been developed in Israel over the years. The importance of simplified procedures in the Israeli system cannot be overestimated. Their development illustrates the dialectical tension between the values of ‘efficiency’ and ‘quality’ in the administration of justice. During periods of austerity, the scales are easily (or easier) tipped in favour of efficiency and general or particular simplification of procedure. In times of prosperity, on the other hand, concerns over ‘quality’, access to justice, and truth discovery predominate, and attempts at promoting efficiency and/or simplification at their expense tend to be bogged down. Such attempts also tend to lose their extrinsic legitimacy and are widely viewed as ‘cutting corners’. This is evident in the recent Israeli experience with civil procedure reform.


Ehud Brosh
Ehud Brosh, LL.M., is a research student at the Hebrew University of Jerusalem.
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