The article analyses the jurisprudence of international tribunals on the education and housing of Roma and Travellers to understand whether positive obligations can change the hearts and minds of the majority and promote minority identities. Case law on education deals with integration rather than cultural specificities, while in the context of housing it accommodates minority needs. Positive obligations have achieved a higher level of compliance in the latter context by requiring majorities to tolerate the minority way of life in overwhelmingly segregated settings. Conversely, little seems to have changed in education, where legal and institutional reform, as well as a shift in both majority and minority attitudes, would be necessary to dismantle social distance and generate mutual trust. The interlocking factors of accessibility, judicial activism, European politics, expectations of political allegiance and community resources explain jurisprudential developments. The weak justiciability of minority rights, the lack of resources internal to the community and dual identities among the Eastern Roma impede legal claims for culture-specific accommodation in education. Conversely, the protection of minority identity and community ties is of paramount importance in the housing context, subsumed under the right to private and family life.

In this article, we focus on how the education system can be used to promote equality in the context of changing people’s hearts and minds – values, morals and mindsets. The duties contained in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (‘Equality Act’) bind private and public schools, educators, learners, governing bodies and the state. The Equality Act calls on the state and all persons to promote substantive equality, but the relevant sections in the Equality Act have not been given effect yet, and are therefore currently not enforceable. We set out how the duty to promote equality should be concretised in the Equality Act to inter alia use the education system to promote equality in schools; in other words, how should an enforceable duty to promote equality in schools be fashioned in terms of the Equality Act. Should the relevant sections relating to the promotion of equality come into effect in their current form, enforcement of the promotion of equality will take the form of obliging schools to draft action plans and submit these to the South African Human Rights Commission. We deem this approach inadequate and therefore propose certain amendments to the Equality Act to allow for a more sensible monitoring of schools’ duty to promote equality. We explain how the duty to promote equality should then play out practically in the classroom to facilitate a change in learners’ hearts and minds.

This conference paper submitted on the occasion of the 8th International Conference on Information Law and Ethics (University of Antwerp, December 13-14, 2018) that focused on modern intellectual property governance and openness in Europe elaborates upon the Text and Data Mining (TDM) issue in the field of scientific research, which is still-by the time of composition of this paper-in the process of discussion and forthcoming voting before the European Parliament in the form of provision(s) included in a new Directive on Copyright in the Digital Single Market. TDM is included in the proposal for a Directive of the European parliament and of the Council on copyright in the Digital Single Market-Proposal COM(2016)593 final 2016/0280(COD) that was submitted to the European Parliament.

To address the potential of public policy on the governance of OARs it is necessary to define what is meant by public policy and the importance of public policy in designing an efficient governance framework. Critical components are the subject matter of public policy and its objectives. Hence, it is useful to consider declarations, policies and statements in relation to open access practice and examine the efficiency of these arrangements towards the improvement of stakeholders’ engagement in governance of OARs. Secondly, policies relating to dissemination of scientific information via OARs should be examined. In this regard, it is relevant to consider the public policy basis for Intellectual Property (IP) laws that concerning the utility of OARs. Therefore, economic theories relevant with the role of IP laws should be examined. Such examination depicts to what extend these laws facilitate the utility of OARs. In order to specify justifications for the desirability of OARs the objectives of social theories should be also considered. Thus, there is consternation that without legal protection against copying the incentive to create intellectual property will be undermined. As scholarly communication infrastructure evolves, it is necessary to recognize the efforts of the relationship between Intellectual Property Rights (IPRs) and communication technologies in the context of public policy and after engagement with it. After employing such multilevel approach, the paper argues about a socio-economic framework to enhance the governance of OARs through public policy.

Similar to pharmaceutical products, medical devices play an increasingly important role in healthcare worldwide by contributing substantially to the prevention, diagnosis and treatment of diseases. From the patent law perspective both, pharmaceutical products and a medical apparatus, product or device can be patented if they meet the patentability requirements, which are novelty, inventiveness and entail industrial applicability. However, regulatory issues also impact on the whole cycle of the innovation. At a European level, enhancing competitiveness while ensuring public health and safety is one of the key objectives of the European Commission. This article undertakes literature review of the current and incoming regulatory framework governing medical devices with the aim of highlighting how these major changes would affect the industry at issue. The analysis is made in the framework of an on-going research work aimed to determine whether SPCs are needed for promoting innovation in the medical devices industry. A thorough analysis the aforementioned factors affecting medical device’s industry will allow the policymakers to understand the root cause of any optimal patent term and find appropriate solutions.

Data driven innovation holds the potential in transforming current business and knowledge discovery models. For this reason, data sharing has become one of the central points of interest for the European Commission towards the creation of a Digital Single Market. The value of automatically generated data, which are collected by Internet-connected objects (IoT), is increasing: from smart houses to wearables, machine-generated data hold significant potential for growth, learning, and problem solving. Facilitating researchers in order to provide access to these types of data implies not only the articulation of existing legal obstacles and of proposed legal solutions but also the understanding of the incentives that motivate the sharing of the data in question. What are the legal tools that researchers can use to gain access and reuse rights in the context of their research?

In the last decade a trend towards more ‘openness’ in terms of collaborations and access to knowledge has been observed in many different sectors and contexts. Along the spectrum of openness one can find many different varieties, such as open innovation, co-creation, open science (combined with open access and open data) and open source. Even traditionally rather ‘closed’ actors, such as publishing houses and the pharmaceutical industry, are gradually catching up and are trying to develop mechanisms to cope with this trend towards openness. Both public and private actors encounter challenges in combining this trend towards openness with the management of intellectual property rights (IPRs). Although a strong willingness may exist to collaborate, open up and share knowledge and data, IPRs often create boundaries and limitations towards cutting-edge collaborations and initiatives for openness and sharing. Over time, companies, universities, public research organisations, etc. have developed certain models to allow for openness while safeguarding ways to protect their IPRs. Yet the legal framework is often lagging behind and does not appear to reflect the socio-economic trend towards openness; in many jurisdictions, changes to IP legislation have rather focused on strengthening of the rights of IP owners. But this is not necessarily a problem as stakeholders tend to find workarounds in their day-to-day practice. This special issue aims to further the discussion about modern governance of IPRs in Europe and to explore different perspectives on how openness could be operationalised within the context of IP protection.

This article relies on the premise that to understand the significance of Open Access Repositories (OARs) it is necessary to know the context of the debate. Therefore, it is necessary to trace the historical development of the concept of copyright as a property right. The continued relevance of the rationales for copyright interests, both philosophical and pragmatic, will be assessed against the contemporary times of digital publishing. It follows then discussion about the rise of Open Access (OA) practice and its impact on conventional publishing methods. The present article argues about the proper equilibrium between self-interest and social good. In other words, there is a need to find a tool in order to balance individuals’ interests and common will. Therefore, there is examination of the concept of property that interrelates justice (Plato), private ownership (Aristotle), labour (Locke), growth of personality (Hegel) and a bundle of rights that constitute legal relations (Hohfeld). This examination sets the context for the argument.

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

In 2019, the Dutch government presented a New Model Investment Agreement that seeks to contribute to the sustainability and inclusivity of future Dutch trade and investment policy. This article offers a critical analysis of the most relevant parts of the revised model text in order to appraise to what extent it could promote sustainability and inclusivity. It starts by providing an overview of the Dutch BIT (Bilateral Investment Treaty) programme, where the role of the Netherlands as a favourite conduit country for global FDI is highlighted. In the article, we identify the reasons why the Netherlands became a preferred jurisdiction for foreign investors and the negative implications for governments and their policy space to advance sustainable development. The 2019 model text is expressly set out to achieve a fairer system and to protect ‘sustainable investment in the interest of development’. While displaying a welcome engagement with key values of sustainable development, this article identifies a number of weaknesses of the 2019 model text. Some of the most criticised substantive and procedural provisions are being reproduced in the model text, including the reiteration of investors’ legitimate expectation as an enforceable right, the inclusion of an umbrella clause, and the unaltered broad coverage of investments. Most notably, the model text continues to marginalise the interests of investment-affected communities and stakeholders, while bestowing exclusive rights and privileges on foreign investors. The article concludes by hinting at possible reforms to better align existing and future Dutch investment treaties with the sustainable development goals.

Since the introduction of a human rights chapter in the 2011 OECD Guidelines for Multinational Enterprises, National Contact Points (NCPs) have been increasingly dealing with specific instances referring to human rights violations by companies. According to the Organisation for Economic Cooperation and Development (OECD), the human rights provisions are the most cited provisions of the Guidelines. Specific instances include allegations such as a company’s failure to implement human rights due diligence, to apply the principles of free, prior and informed consent, to take supply chain responsibility, and/or to comply with the right to cultural heritage. Of all topics, human rights due diligence and human rights supply chain responsibilities are most commonly referred to in complaints based on the Guidelines. This article focuses on how NCPs have handled these topics of human rights due diligence and supply chain responsibility in specific instances. The Dutch NCP has been selected because it is celebrated in literature as the ‘gold standard’ because of its composition including independent members, its forward-looking approach, and because it is one of the most active NCPs in the world. All decisions of the Dutch NCP concerning these two topics are analysed in the light of the decisions of four other NCPs (UK, Denmark, Germany and Norway). A doctrinal methodology is used to analyse similarities and differences between the argumentations of the five NCPs.

The past few decades have seen an increasing scrutiny of the impacts – both positive and negative – that companies have on the societies in which they operate. The search for adequate responses to such scrutiny is reflected in developments in the societal, political and academic debate on three separate but interrelated concepts: corporate social responsibility, business and human rights and responsible business conduct. The focus in this Special Issue will be on law and policy relating to responsible business conduct in global value chains. The contributions in this Special Issue identify relevant developments and institutions in the Netherlands, including rules and regulations related to trade, investment and corporate governance as well as cases related to corporate and consumer responsibilities, and assess their role in relation to the potential to provide a positive response to the concern about the human and environmental impacts of business activities. Together, they provide a multi-perspective view of relevant gaps and/or best practices with regard to regulatory governance in the Netherlands while at the same time enabling a comparative debate on the extent to which these diverse developments and institutions are in line with stated policy goals in this context both at national and EU levels. In doing so, this Special Issue aims to contribute to further coherence between national and EU policies with regard to RBC in global value chains and sustainable development.

This article addresses the question of how the Dutch regulatory and institutional setting enables policy coherence, specifically with regard to safeguarding stakeholders’ interests and promoting sustainable governance. To address this question, we engage with idiosyncratic theoretical notions in the Dutch corporate governance model. We follow the evolution of these notions in statutory company law and case law, their development in the Dutch Corporate Governance Code and their relation to the Enterprise Chamber as a unique institution. We establish how these theoretical views and practical institutions present significant means by which stakeholder concerns may be represented in the operation of company law and corporate governance more broadly and provide a number of ways in which these institutions and their operation can be further developed.

In 2018, in the wake of Brexit, the French legal profession took several important measures to strengthen the competitiveness of France and the French legal system, and to make Paris an attractive go-to-point for businesses when the latter have to deal with international commercial litigation. When taking a closer look at it, Brexit is only the top of the iceberg, and has mostly served as a catalyst. Reasons explaining the development of international commercial courts in France are manifold. They are consequences of long-standing efforts aimed at boosting the French judicial marketplace to adapt it to the requirements of globalization and to the expectations of multinational corporations. The setting-up of the French international business courts has made several procedural adjustments necessary. Although the latter undoubtedly represent clear innovations, they however do not constitute a full-blown revolution. France has indeed decided to maximize already-existing procedural rules, combined with a new organisational format inspired by the Common Law tradition. If it remains too early to draw clear conclusions on the impact of these new developments, it is essential to keep our ears to the ground, and to be forward-looking. We should carefully consider the possible side-effects on the French justice system considered as a whole, and in particular wonder whether these international commercial courts might in the future open the door to broader far-reaching evolutions within the judicial system. Finally, the multiplication of international business courts across Europe nowadays triggers some questions concerning the role and potential added value of an EU initiative in this domain.

This contribution analyses the effectiveness of the Dutch International Responsible Business Conduct (IRBC) agreements and suggests some avenues for improvement. Several challenges in connection with effectiveness have been identified in evaluations of the IRBC agreements, and these are used as a starting point for the analysis. The focus is on three themes: (i) uptake, leverage and collaboration; (ii) implementation of OECD due diligence including monitoring and (iii) access to remedy. This contribution shows that low uptake may not be a sign of ineffectiveness per se, although in terms of leverage a sufficient number of participants or collaboration between agreements seems important. In connection with due diligence, it is recommended to align the implementation of OECD due diligence. Furthermore, an effective monitoring mechanism by a secretariat, as is currently implemented in the Textile agreement only, is most likely to bring about material changes in business behaviour. Other types of supervision seem less effective. Access to remedy poses a challenge in all IRBC agreements. It is recommended that the expectations the agreements have on access to remedy be clarified, also in connection with the role of signatories to the agreements in cases where they are directly linked to human rights abuse. Furthermore, it is recommended that a dispute resolution mechanism be introduced that enables complaints for external stakeholders against business signatories, comparable to that of the Textile agreement. However, rather than implementing separate mechanisms in all agreements, an overarching mechanism for all agreements should be introduced.

The power to regulate on-board protection of merchant vessels lies with the flag state. However, the national models of regulation are not developed in a unilateral vacuum. In fact, the whole concept of flag state jurisdiction and legislative power has to be understood and exercised on the national level in close relation with the general regime of the international law of the sea. The aim of the article is therefore two-fold: first, it aims to provide a background for the country reports in this special issue by giving a brief insight into the problem of piracy in the twenty-first century and the international approaches towards this problem. Here the article also provides an insight into the legal background by presenting the concept of piracy in the law of the sea and connected law enforcement powers. Thus, this part of the article provides the overall context in which the discussions concerning on-board protection and the development of national regulations have occurred. Second, the article analyses the issue of on-board protection from the perspective of the legal framework in international law, as well as relevant international soft-law instruments, influencing the development on the national level. On-board protection of vessels as such is not regulated in the international law; however, international law provides a form of general legal setting, in which flags states navigate. Thus, this article aims to draw a picture of the international context in which flags states develop their specific legal approach.

The sharp increase of piracy attacks in the last two decades was followed by a parallel increase of demand in the maritime security sector. A plenty of flag States around the world have started to authorize the deployment of armed security guards, either military or private, aboard commercial ships. In 2011, Italy also introduced the possibility of embarking armed security services to protect Italian flagged ships sailing in dangerous international waters. Like the other flag States’ legal systems, the newly adopted Italian legislation aims to preserve the domestic shipping industry which was particularly disrupted by modern-day pirates. On the other hand, the doubling of approaches of the Italian legal and regulatory framework, initially privileging military personnel and then opting for the private solution, took the author to investigate the main relevant features of the Italian model of regulation and to analyze the recent developments of the domestic legal practice on counterpiracy armed security services, focusing on the role that customary and treaty obligations of international law played for the realization at national level of on-board armed protection of Italian ships. The use of lethal force at sea and the relationship between the shipmaster and the security guards will receive specific attention in this article.

This article examines the legal issues pertaining to the use of civilian armed guards on board Danish-flagged ships for protection against piracy. The Danish model of regulation is interesting for several reasons. Firstly, the Danish Government was among the first European flag States to allow and formalise their use in a commercial setting. Secondly, the distribution of assignments between public authorities and private actors stands out as very pragmatic, as ship owners and contracting private security companies are empowered with competences which are traditionally considered as public administrative powers. Thirdly, the lex specialis framework governing the authorisation and use of force in self-defence is non-exhaustive, thus referring to lex generalis regulation, which does not take the special circumstances surrounding the use of armed guards into consideration. As a derived effect the private actors involved rely heavily on soft law and industry self-regulation instrument to complement the international and national legal framework.