Erasmus Law Review

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Issue 1, 2023 Expand all abstracts

Access_open Experimental Insight Into the Fair Process Effect and Its Boundary Conditions

External Attributions May Moderate Reactions to Procedural Justice in Legal Contexts

Keywords procedural justice, fair process effect, boundary conditions, external attributions, experiment
Authors Lisa Ansems, Kees van den Bos and Elaine Mak
AbstractAuthor's information

    The perception of being treated fairly during decision-making processes is an important topic in the research literature on law and society. Many studies have indeed found that perceived procedural justice affects people’s reactions, for instance, by increasing their trust in legal authorities and lowering their intentions to protest against these authorities’ decisions. Here, we reveal support for this fair process effect and point to some of its potential boundary conditions. In our experimental study, 239 participants imagined being the defendant during a single-judge criminal court hearing that used either a fair or an unfair procedure. Following the experience of a fair as opposed to an unfair procedure, participants showed more trust in judges and were less inclined to protest against the judicial ruling. Interestingly, the effect of the procedure manipulation on trust in judges was moderated by the extent to which participants attributed their case outcomes to external causes. We found a fair process effect among participants with relatively low external attribution ratings, while this effect attenuated and was not statistically significant among participants whose external attribution ratings were relatively high. These findings point to the possibility that attributional processes can moderate people’s responses to procedural justice in legally relevant contexts.

Lisa Ansems
Lisa F.M. Ansems, PhD, is researcher at Leiden University, Leiden, the Netherlands.

Kees van den Bos
Kees van den Bos is Professor of Empirical Legal Science and Professor of Social Psychology at Utrecht University, Utrecht, the Netherlands.

Elaine Mak
Elaine Mak is Professor of Jurisprudence at ,Utrecht University, Utrecht, the Netherlands.

Access_open Plant Blindness and the Law on International Trade in Wildlife

Keywords green criminology, plant blindness, speciesism, Convention on the International Trade in Endangered Species of Wild Fauna and Flora (CITES), environmental crime
Authors Tanya Wyatt and Alison Hutchinson
AbstractAuthor's information

    While habitat destruction threatens other-than-human life across the planet, overexploitation and illegal trade are the second leading source of threats to wildlife. ‘Wildlife’ though predominantly is taken to mean other-than-human animals, and plants are largely overlooked or ignored even though they are critical to human societies and the health of the planet. Adopting a green criminological analysis, this article provides evidence that legislation governing wildlife use and protection is speciesist and ‘plant blind’. Through a content analysis of 185 countries’ wildlife trade legislation, we find that not all legislation includes plants and that in some legislation different species of plants are regarded differently. This means that there are gaps in the framework of legal protection for some plants, which can have real-world consequences. For instance, lack of protection can lead to reduced conservation for exploited plants, which in turn can increase the loss of biodiversity and further threaten ecosystem health and planetary well-being. Legislative and societal plant blindness needs to be challenged and overturned to help stop the biodiversity crisis.

Tanya Wyatt
Tanya Wyatt was a Professor of Criminology at the Northumbria University in Newcastle, United Kingdom.

Alison Hutchinson
Alison Hutchinson is a Postdoctorate Researcher at the University of Sheffield, United Kingdom.

Access_open Corporate Governance Beyond the Shareholder and Stakeholder Model

Keywords shareholder model, stakeholder model, sustainability, corporate governance
Authors Dirk Schoenmaker, Willem Schramade and Jaap Winter
AbstractAuthor's information

    There is a heated debate on shareholder versus stakeholder governance. The debate has expanded from traditional stakeholders who are directly involved with the company, such as employees and customers, to stakeholders who are indirectly affected by the company’s conduct, for example through ecological damage and climate change, including future stakeholders. But the lack of an integrated measure makes it difficult to hold the board accountable against multiple goals. This article develops an integrated model of corporate governance including current and future stakeholders, building on an integrated measure for corporate value. The board can use this integrated value measure to balance the interests of the various stakeholders in a structured way. The integrated value measure can also be used by stakeholders (including shareholders) to hold the board accountable for its decisions. Finally, the article examines mechanisms, such as stakeholder councils and sustainability-related performance pay, to include the interests of the various stakeholders on the board.

Dirk Schoenmaker
Dirk Schoenmaker, PhD, is Professor of Finance at the School of Management of the Erasmus University Rotterdam, the Netherlands.

Willem Schramade
Willem Schramade is Fellow at the School of Management of the Erasmus University Rotterdam, the Netherlands.

Jaap Winter
Jaap Winter is Professor of Corporate Law at the Vrije Universiteit Amsterdam, the Netherlands.

Access_open ‘Le vent nous portera’: Rescue and Confinement at Sea under Human Rights Law

Keywords search and rescue, European Court of Human Rights, inhuman and degrading treatment, interim measures, closed ports
Authors Mariagiulia Giuffré
AbstractAuthor's information

    As a response to the pandemic, sea-rescue operations in the Mediterranean have either come to a halt or have been perilously delayed. Since then, policies of port closure and semi-closure have been undertaken under different forms. Nevertheless, States have an obligation to assist ships’ masters in delivering any shipwreck to a place of safety, even in times of COVID-19 or any other public emergency. This article explores whether State responsibility under international human rights law might be engaged whenever rescuing boats are compelled to lengthy standoffs with no coastal State allowing disembarkation. Therefore, in discussing the interim measures issued by the European Court of Human Rights (ECtHR) in cases of prolonged confinement at sea – following port closures and refusals of a place of safety – it suggests that the ECtHR should have ordered disembarkation of all shipwrecked onboard. Indeed, the actual conditions of migrants and asylum-seekers compelled to exhausting and unlawful standoffs at sea, in addition to their precarious physical and mental health, may amount to inhuman and degrading treatment and to a de facto deprivation of personal liberty under Articles 3 and 5 of the European Convention on Human Rights (ECHR). While contesting the increasing use of a language of ‘crisis’ and the recent ‘practical and effective’ approach of the Court of Strasbourg, aimed at preventing ‘foreigners [including asylum seekers] circumventing restrictions on immigration’, this article concludes highlighting the risks of such an approach, thereby exhorting the Court to challenge what may become a perpetual (rather than exceptional) emphasis on a migration crisis.

Mariagiulia Giuffré
Mariagiulia Giuffré is a Reader (Associate Professor) in Law at Edge Hill University, United Kingdom.

Access_open Whither Criminal Cartel Enforcement in the EU?

A Law and Economics Assessment

Keywords cartel enforcement, competition law, criminalisation, corporate crimes, optimal deterrence
Authors Binit Agrawal
AbstractAuthor's information

    Cartels have been a persistent problem in the European internal market and despite strong enforcement, cartels continue to exist and be discovered by the Commission. This article proposes that the optimal way to deal with cartels requires the imposition of criminal sanctions against corporates and responsible executives. This is not a novel proposal in itself: the US has had criminal sanctions against cartels for over a century and the UK for a decade. But the EU’s unique regulatory and governance structure requires that such a proposal must have a stronger evidentiary basis and must take into account its governance structure. This article does so by analysing statistics on cartel enforcement in the EU and the US to show that fines have not been able to sufficiently deter cartels. Second, normative reasoning based on harm theory, morality of criminalisation and public choice theory is employed to indicate that cartel activities are criminal in nature and that penalising them as such would not amount to overcriminalisation. Third, objective analysis is used to dissect the limitations of fines: when used in isolation they do not target the wrongdoers, are suboptimal and impose social costs. Fourth, it is shown that combining fines with criminal sanctions can help us redress these issues and improve the deterrence levels significantly. Lastly, principles are proposed to ensure that such a proposal considers the varying gravity of cartel activities, and is in sync with the EU’s rule of law and governance structure and the Commission’s leniency programme.

Binit Agrawal
Binit Agrawal, B.A., LLB, LLM, is a masterstudent of European Law and Economics at the Erasmus University Rotterdam, the Netherlands.

Access_open Doing Business in Xinjiang

Import Bans in the Face of Gross Human Rights Violations against the Uyghurs

Keywords business and gross human rights abuses, Uyghurs, forced labour, import bans, criminal liability, US Uyghur Forced Labor Prevention Act
Authors Marie de Pinieux and Nadia Bernaz
AbstractAuthor's information

    The involvement of business actors in gross human rights abuses and international crimes is not a new phenomenon, as exemplified by the Holocaust or the Rwandan genocide. Nowadays, many European and US-based companies doing business in China, specifically in the Xinjiang province where Uyghurs are persecuted, may be connected to severe human rights abuses. The current business and human rights legal framework, which has developed to include human rights due diligence laws and civil litigation, may not be robust enough for preventing companies from doing business in the region, and punishing them when they do and become connected to abuse. We contend that this framework could be strengthened so as to enhance corporate accountability in the face of gross, state-orchestrated human rights abuses in the region. We consider specific laws that the United States and the European Union have adopted to address this situation, namely the 2022 US Uyghur Forced Labor Prevention Act and the EU Proposal for a regulation on prohibiting products made with forced labour on the Union market.

Marie de Pinieux
Marie de Pinieux is a Lecturer of Law at Paris 1 Panthéon-Sorbonne University, Paris, France.

Nadia Bernaz
Nadia Bernaz is an Associate Professor of Law at Wageningen University and Research, Wageningen, the Netherlands.

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