Erasmus Law Review

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Issue 2, 2023 Expand all abstracts

Access_open The Public-Private Challenge: The Role of Private Actors in Defining, Safeguarding and Implementing Public Interests

Keywords public-private challenge, rebalancing public and private interests, power, justice
Authors Lieselot Bisschop, Aurelia Colombi Ciacchi, René Repasi e.a.
Author's information

Lieselot Bisschop
Lieselot Bisschop, Professor of Public and Private Interests, Erasmus School of Law, Rotterdam, The Netherlands.

Aurelia Colombi Ciacchi
Aurelia Colombi Ciacchi, Professor of Law and Governance, University of Groningen, Groningen, The Netherlands.

René Repasi
René Repasi, Professor of Public and Private Interests, Erasmus School of Law, Rotterdam, The Netherlands.

Enrique Santamaría
Enrique Santamaría, Postdoctoral Researcher, Law & Markets Department, Erasmus School of Law, Rotterdam, The Netherlands.

Koen Swinnen
Koen Swinnen, Professor of Private Law and Public & Private Interests, Erasmus School of Law, Rotterdam, The Netherlands.

Access_open Public End through Private Means: A Comparative Study on Public Interest Litigation in Europe

Keywords public interest litigation, fundamental rights, class actions, enforcement, strategic litigation
Authors Ander Maglica
AbstractAuthor's information

    Public interest litigation aims to enforce through judicial proceedings not only the rights and interests of the individual claimants, but also those of the whole social group to which they pertain, if not of the whole collectivity. In this sense, it seeks to represent the rights of minorities, advance equality and bring positive social change through the courts. This article aims to situate the debate over public interest litigation in Europe by arguing that, although imperfect, it can still represent a key tool for societal change and for the protection of the new social and meta-individual rights, whenever responsible public actors fail to do so. In particular, building on previous academic literature and on the existing case law, the article, first examines the evolving concept of public interest litigation. Second, it generally presents the complex European architecture of judicial protection in which the different procedural techniques of public interest litigation are called to operate. Finally, under the comparative yardstick, it focuses on three relevant techniques available in such a European framework: constitutional review, the pilot-judgement procedure and class actions.

Ander Maglica
Ander Maglica is a PhD candidate at the University of Milan, Italy, and KU Leuven, Belgium.

Access_open Private-Interests Actors as Catalysts for Actions under Public Law

Towards a Research Agenda for Legal Mobilisation of Private-Interests Actors in the Preliminary Ruling Procedure

Keywords legal mobilisation, private-interests actors, preliminary ruling procedure, CJEU, interest groups
Authors Monika Glavina
AbstractAuthor's information

    For more than two decades now, scholars of European legal mobilisation have looked at the role of litigants and their lawyers in the ‘judicial construction of Europe’ through the preliminary ruling procedure before the Court of Justice of the EU (CJEU). Looking at who are these actors that have raised claims based on EU law before national courts, the literature has focused predominantly on the area of EU non-discrimination, migration and environmental law. Scholars wrote on the essential role of equality bodies, trade unions and NGOs in pushing for the development of EU law and policy in these fields through preliminary questions to the CJEU. The role of private-interests actors in EU legal mobilisation – undertakings, companies, business, industry and other for-profit actors – has, by contrast, been neglected.
    Building on five main arguments – the origin of the EU as an economic organisation, the economic focus of EU legislation, the concentration of referrals in regions with a strong commercial/trade focus, the role of transnational activity on the referral rates, and commercial/trade focus of preliminary questions – this article demonstrates that private-interests actors are overlooked yet extremely important catalysts for actions under public law. The aim of this article is to set a research agenda on the role of private-interests actors as important Repeat Players in EU legal mobilisation via the preliminary ruling procedure. Questions that this article raises are as follows: who are these private-interests actors that mobilise EU law? What are their motivations and strategies? And how do these differ from those of public-interests actors? This article aims to identify a critical role that private-interests actors play in shaping legal mobilisation and (ultimately) legal integration in the EU.

Monika Glavina
Monika Glavina is Assistant Professor of EU law at the Department of Law & Markets of the Erasmus University Rotterdam, the Netherlands.

Access_open How Can Business Best Approach Human Rights in Third-Party Litigation Funding?

Guidelines for Future Regulations

Keywords access to justice, human rights, third-party litigation funding, business and human rights
Authors María Carlota Ucín
AbstractAuthor's information

    Conceived as a human right, access to justice is part of the rule of law, well recognised in several international instruments (Arts. 8 and 10 of the UDHR; Arts. 2.3 and 14 of the ICCPR; Arts. 6 and 13 of the ECHR and Art. 47 of the CFR). The present fulfilment of this right includes forms of privatisation like private insurance covering the costs of litigation, contingency-fee arrangements between lawyers and clients, crowdfunding applied to support the costs of litigation, and third-party litigation funding (TPLF). In the present article, I will restrict my analysis to TPLF as a private form of investment designed to finance access to justice. The aim of this article is to provide arguments in support of the regulation of TPLF as well as normative guidelines to inform that regulation. For this purpose, I will start by presenting different approaches to TPLF and will then assess – from the human rights perspective – examples of regulation. This evaluation intends to determine to what extent these regulations are in line with the human rights matrix of obligations: namely, the duty to respect, to protect and to fulfil human rights. Finally, I will present conclusions following the results of this evaluation and suggest guidelines to improve future regulations.

María Carlota Ucín
María Carlota Ucín is a postdoctoral researcher at Erasmus School of Law working on the project Affordable access to justice (subproject: From public to private funding), Project number VI.C.191.082 of the Vici Research Programme, which is financed by the Dutch Research Council (NWO). Contact:

Access_open Rethinking the Goal of Bankruptcy Proceedings

Maximizing Value Versus Sustainable Liquidation

Keywords insolvency law, sustainability, balancing interests, stakeholder theory, empirical legal studies
Authors Jessie M.W. Pool
AbstractAuthor's information

    Bankruptcy proceedings are mainly aimed at recovering the assets of the debtor in order to satisfy the creditors. In recent years, some jurisdictions, such as the Netherlands, tried to make their insolvency frameworks more stakeholder-friendly to promote sustainable liquidation. Usually, these changes give bankruptcy trustees the discretionary power to take into account the interests of all stakeholders involved. Based on empirical evidence from the Netherlands, this article shows that the mere obligation to take into account the interests of stakeholders other than creditors is insufficient to promote sustainable liquidation. In order to promote sustainable liquidation, this article suggests implementing a multistakeholder perspective in bankruptcy proceedings. In addition, the article explores whether the aim of bankruptcy proceedings should be changed because the creditor’s primacy impedes bankruptcy trustees from promoting interests other than that of the creditors.

Jessie M.W. Pool
Jessie Pool, PhD, is Assistant Professor of Company and Insolvency Law at Leiden University in the Netherlands.

Access_open Meta’s Oversight Board

Challenges of Content Moderation on the Internet

Keywords content moderation, social media, Oversight Board
Authors Pamela San Martín
AbstractAuthor's information

    The regulatory framework of international human rights law (IHRL) was originally designed to protect individuals from the power of states. However, the global expansion of private entities’ power raised social awareness of the impact of business on human rights. The discussion around businesses and human rights has not been oblivious to the debates surrounding freedom of expression in the era of digitalisation. While the digital public sphere has undoubtedly democratised the public conversation, it has also generated risks and challenges around content moderation and freedom of expression. Platforms have therefore expanded their powers, creating a growing number of content rules and increasing the amount of content they remove. This has led to the rise of legitimate complaints concerning the lack of remedies for the proliferation of harmful speech and the ‘excessive’ content moderation that limits or excludes content protected by the freedom of expression. Within this framework, the discussion remains open as to who should regulate social media and how it must be done, what oversight mechanisms should be implemented to ensure people the protection of their rights online and prevent negative on- and offline impacts. This article provides an outline of the challenges generated by communication in the digital sphere and addresses the discussions on public/private regulation of content moderation. Additionally, this article addresses the importance of ensuring that the rules applied by the platforms are based on IHRL and discusses the creation of Meta’s Oversight Board as a self-regulatory mechanism, as a novel and complementary alternative to governing social media.

Pamela San Martín
Pamela San Martín is a Member of the Oversight Board Department at the Public Company Accounting Oversight Board.

Access_open Five Variations of Transformative Law: Beyond Private and Public Interests

Keywords transformative law, private and public interests, societal and public power, human rights law, law and economics
Authors Poul F. Kjaer
AbstractAuthor's information

    The regulation of the interfaces of private and public interests is a central and recurrent issue of modern law. The centrality of the distinction and the manifold conceptual and practical problems associated with it has moreover been exacerbated over the past fifty years through the dominance of the twin-episteme of law constituted by law and economics and human rights law. Against this background, an alternative approach to and concept of law, transformative law, is briefly introduced. An approach which implies replacing the notions of private and public interests with the concepts of legally constituted public power and societal power. In order to analyse the potential and limits of transformative law, five legal phenomena, central to the other contributions to this special issue, are analysed: public interest litigation; legal mobilisation in the preliminary ruling procedure; bankruptcy proceedings; third-party litigation and the Meta Oversight Board.

Poul F. Kjaer
Poul F. Kjaer is professor at the Department of Business Humanities and Law, Copenhagen Business School. His research is funded by the European Research Council. Project: 101054237 — GLOBALVALUE. Contact: Orcid:

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