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Article

Access_open The Brussels International Business Court: Initial Overview and Analysis

Journal Erasmus Law Review, Issue 1 2019
Keywords international jurisdiction, English, court language, Belgium, business court
Authors Erik Peetermans and Philippe Lambrecht
AbstractAuthor's information

    In establishing the Brussels International Business Court (BIBC), Belgium is following an international trend to attract international business disputes to English-speaking state courts. The BIBC will be an autonomous business court with the competence to settle, in English, disputes between companies throughout Belgium. This article focuses on the BIBC’s constitutionality, composition, competence, proceedings and funding, providing a brief analysis and critical assessment of each of these points. At the time of writing, the Belgian Federal Parliament has not yet definitively passed the Bill establishing the BIBC, meaning that amendments are still possible.


Erik Peetermans
Erik Peetermans is a legal adviser at the Federation of Enterprises in Belgium (FEB).

Philippe Lambrecht
Philippe Lambrecht is the Director-Secretary General at the Federation of Enterprises in Belgium (FEB).
Article

Access_open The Singapore International Commercial Court: The Future of Litigation?

Journal Erasmus Law Review, Issue 1 2019
Keywords international commercial court, Singapore, dispute resolution, litigation
Authors Man Yip
AbstractAuthor's information

    The Singapore International Commercial Court (‘SICC’) was launched on 5 January 2015, at the Opening of Legal Year held at the Singapore Supreme Court. What prompted the creation of SICC? How is the SICC model of litigation different from litigation in the Singapore High Court? What is the SICC’s track record and what does it tell us about its future? This article seeks to answer these questions at greater depth than existing literature. Importantly, it examines these questions from the angle of reimagining access of justice for litigants embroiled in international commercial disputes. It argues that the SICC’s enduring contribution to improving access to justice is that it helps to change our frame of reference for international commercial litigation. Hybridisation, internationalisation, and party autonomy, the underpinning values of the SICC, are likely to be the values of the future of dispute resolution. International commercial dispute resolution frameworks – typically litigation frameworks – that unduly emphasise national boundaries and formalities need not and should not be the norm. Crucially, the SICC co-opts a refreshing public-private perspective to the resolution of international commercial disputes. It illuminates on the public interest element of the resolution of such disputes which have for some time fallen into the domain of international commercial arbitration; at the same time, it introduces greater scope for self-determination in international commercial litigation.


Man Yip
BCL (Oxon).
Article

Access_open Requirements upon Agreements in Favour of the NCC and the German Chambers – Clashing with the Brussels Ibis Regulation?

Journal Erasmus Law Review, Issue 1 2019
Keywords international commercial courts, the Netherlands Commercial Court (NCC), Chambers for International Commercial Disputes (Kammern für internationale Handelssachen), Brussels Ibis Regulation, choice of court agreements, formal requirements
Authors Georgia Antonopoulou
AbstractAuthor's information

    In recent years, the Netherlands and Germany have added themselves to the ever-growing number of countries opting for the creation of an international commercial court. The Netherlands Commercial Court (NCC) and the German Chambers for International Commercial Disputes (Kammern für internationale Handelssachen, KfiH) will conduct proceedings entirely in English and follow their own, diverging rules of civil procedure. Aspiring to become the future venues of choice in international commercial disputes, the NCC law and the legislative proposal for the establishment of the KfiH allow parties to agree on their jurisdiction and entail detailed provisions regulating such agreements. In particular, the NCC requires the parties’ express and in writing agreement to litigate before it. In a similar vein, the KfiH legislative proposal requires in some instances an express and in writing agreement. Although such strict formal requirements are justified by the need to safeguard the procedural rights of weaker parties such as small enterprises and protect them from the peculiarities of the NCC and the KfiH, this article questions their compliance with the requirements upon choice of court agreements under Article 25 (1) Brussels Ibis Regulation. By qualifying agreements in favour of the NCC and the KfiH first as functional jurisdiction agreements and then as procedural or court language agreements this article concludes that the formal requirements set by the NCC law and the KfiH proposal undermine the effectiveness of the Brussels Ibis Regulation, complicate the establishment of these courts’ jurisdiction and may thus threaten their attractiveness as future litigation destinations.


Georgia Antonopoulou
PhD candidate at Erasmus School of Law, Rotterdam.
Article

Access_open Matchmaking International Commercial Courts and Lawyers’ Preferences in Europe

Journal Erasmus Law Review, Issue 1 2019
Keywords choice of court, commercial court, lawyers’ preferences, survey on lawyers, international court
Authors Erlis Themeli
AbstractAuthor's information

    France, Germany, Belgium, and the Netherlands have taken concrete steps to design and develop international commercial courts. Most of the projects claim to be building courts that match the preferences of court users. They also try to challenge England and Wales, which evidence suggests is the most attractive jurisdiction in the EU. For the success of these projects, it is important that their proposed courts corresponds with the expectations of the parties, but also manages to attract some of the litigants that go to London. This article argues that lawyers are the most important group of choice makers, and that their preferences are not sufficiently matched by the new courts. Lawyers have certain litigation service and court perception preferences. And while the new courts improve their litigation service, they do not sufficiently addressed these court perception preferences.


Erlis Themeli
Postdoc, Erasmus School of Law, Erasmus University Rotterdam.
Article

Access_open The Conduit between Technological Change and Regulation

Journal Erasmus Law Review, Issue 3 2018
Keywords technology, socio-technological change, money, windmill, data
Authors Marta Katarzyna Kołacz and Alberto Quintavalla
AbstractAuthor's information

    This article discusses how the law has approached disparate socio-technological innovations over the centuries. Precisely, the primary concern of this paper is to investigate the timing of regulatory intervention. To do so, the article makes a selection of particular innovations connected with money, windmills and data storage devices, and analyses them from a historical perspective. The individual insights from the selected innovations should yield a more systematic view on regulation and technological innovations. The result is that technological changes may be less momentous, from a regulatory standpoint, than social changes.


Marta Katarzyna Kołacz
Marta Katarzyna Kołacz, Ph.D. Candidate in the Department of Private Law, Erasmus School of Law, Erasmus University Rotterdam, The Netherlands.

Alberto Quintavalla
Alberto Quintavalla, LL.M., Ph.D. Candidate in the Rotterdam Institute of Law and Economics, Erasmus School of Law, Erasmus University Rotterdam, The Netherlands.
Article

Access_open Armed On-board Protection of Dutch Vessels: Not Allowed Yet But Probably Forthcoming

Journal Erasmus Law Review, Issue 4 2018
Keywords vessel protection, private armed guards, state monopoly on force, masters position, state control
Authors Paul Mevis and Sari Eckhardt
AbstractAuthor's information

    This article provides an overview of the developments about the armed on-board protection of Dutch vessels under Dutch law. The Dutch position has changed over the years. In 2011, the starting point was that private security companies (PSCs) are not to be allowed. It was expected that adequate protection of Dutch vessels could be provided by vessel protection detachments (VPDs). Although not considered as an absolute statutory bar, the state monopoly on force was considered the main argument against PSCs. After optimising the use of VPDs and given the development in other countries, the approach changed into a ‘VPS, unless …’-approach. Under the new Protection of Merchant Shipping Act that is expected to come into force in the second half of 2019, PSCs can be employed only if no VPS is available. This article gives an overview of the argumentation in this change of view over the years. It also explores the headlines, criteria and procedures of the new law and some other topics, including the position of the master under the upcoming law. In line with the other country reports, it enables the comparative study in the last article of this special issue.


Paul Mevis
Paul Mevis is professor of criminal law and criminal procedure at Erasmus University Rotterdam.

Sari Eckhardt
Sari Eckhardt holds a master’s degree in criminal law and has worked as a student assistant at the Rotterdam Erasmus University’s Department of Criminal Law and is currently working at De Bont Advocaten.
Article

Access_open Armed On-board Protection of German Ships (and by German Companies)

Journal Erasmus Law Review, Issue 4 2018
Keywords German maritime security, private armed security, privately contracted armed security personnel, anti-piracy-measures, state oversight
Authors Tim R. Salomon
AbstractAuthor's information

    Germany reacted to the rise of piracy around the Horn of Africa not only by deploying its armed forces to the region, but also by overhauling the legal regime concerning private security providers. It introduced a dedicated licensing scheme mandatory for German maritime security providers and maritime security providers wishing to offer their services on German-flagged vessels. This legal reform resulted in a licensing system with detailed standards for the internal organisation of a security company and the execution of maritime security services. Content wise, the German law borrows broadly from internationally accepted standards. Despite deficits in state oversight and compliance control, the licensing scheme sets a high standard e.g. by mandating that a security team must consist of a minimum of four security guards. The lacking success of the scheme suggested by the low number of companies still holding a license may be due to the fact that ship-owners have traditionally been reluctant to travel high-risk areas under the German flag. Nevertheless, the German law is an example of a national regulation that has had some impact on the industry at large.


Tim R. Salomon
The author is a legal adviser to the German Federal Armed Forces (Bundeswehr) and currently seconded to the German Federal Constitutional Court.
Article

Access_open On-board Protection of Merchant Vessels from the Perspective of International Law

Journal Erasmus Law Review, Issue 4 2018
Keywords piracy, international law, law of the sea, on-board protection of merchant vessels, use of force
Authors Birgit Feldtmann
AbstractAuthor's information

    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.


Birgit Feldtmann
Birgit Feldtmann is professor (mso) at the Department of Law, Aalborg University.
Article

Access_open Armed On-board Protection of Italian Ships: From an Apparent Hybrid Model to a Regulated Rise of Private Contractors

Journal Erasmus Law Review, Issue 4 2018
Keywords maritime security services, Italian hybrid system, military and private personnel, use of force, relation with the shipmaster
Authors Giorgia Bevilacqua
AbstractAuthor's information

    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.


Giorgia Bevilacqua
Researcher at the Università degli Studi della Campania Luigi Vanvitelli.

Michiel van der Wolf

Birgit Feldtmann
Birgit Feldtmann is professor (mso) at the Department of Law, Aalborg University.

Christian Frier
Christian Frier is research assistant at the Department of Law, University of Southern Denmark. He obtained his PhD in Law in March 2019.

Paul Mevis
Paul Mevis is professor of criminal law and criminal procedure at Erasmus University Rotterdam.
Article

Access_open Armed On-board Protection of Danish Vessels Authorisation and Use of Force in Self-defence in a Legal Perspective

Journal Erasmus Law Review, Issue 4 2018
Keywords piracy, private security companies (PSC), privately contracted armed security personnel (PCASP), use of force, Denmark
Authors Christian Frier
AbstractAuthor's information

    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.


Christian Frier
Christian Frier is research assistant at the Department of Law, University of Southern Denmark. He obtained his PhD in Law in March 2019.
Article

Access_open National Models for Regulating On-board Protection of Vessels: Some Cross-cutting Issues

Journal Erasmus Law Review, Issue 4 2018
Keywords on-board protection, merchant vessels, Privately Contracted Armed Security Personnel (PCASPs), Vessel Protection Detachment (VPDs), piracy
Authors Birgit Feldtmann, Christian Frier and Paul Mevis
Author's information

Birgit Feldtmann
Birgit Feldtmann is professor (mso) at the Department of Law, Aalborg University.

Christian Frier
Christian Frier is research assistant at the Department of Law, University of Southern Denmark. He obtained his PhD in Law in March 2019.

Paul Mevis
Paul Mevis is professor of criminal law and criminal procedure at Erasmus University Rotterdam.
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 Legality of the World Bank’s Informal Decisions to Expand into the Tax Field, and Implications of These Decisions for Its Legitimacy

Journal Erasmus Law Review, Issue 2 2017
Keywords World Bank, legality, legitimacy, global tax governance, tax policy and tax administration reforms
Authors Uyanga Berkel-Dorlig
AbstractAuthor's information

    The emergence of global tax governance was triggered by common tax problems, which are now still being faced by international society of nation-states. In the creation of this framework, international institutions have been playing a major role. One of these institutions is the World Bank (Bank). However, those who write about the virtues and vices of the main creators of the framework usually disregard the Bank. This article, therefore, argues that this disregard is not justified because the Bank has also been playing a prominent role. Since two informal decisions taken in the past have contributed to this position of the Bank, the article gives in addition to it answers to the following two related questions: whether these informal decisions of the Bank were legal and if so, what implications, if any, they have for the Bank’s legitimacy.


Uyanga Berkel-Dorlig
Ph.D. candidate in the Department of Tax Law, Erasmus School of Law, Erasmus University Rotterdam, The Netherlands.
Article

Access_open The Right to Same-Sex Marriage: Assessing the European Court of Human Rights’ Consensus-Based Analysis in Recent Judgments Concerning Equal Marriage Rights

Journal Erasmus Law Review, Issue 3 2017
Keywords same-sex marriage, gay marriage, European consensus, margin of appreciation, consensus-based analysis by the ECtHR
Authors Masuma Shahid
AbstractAuthor's information

    This contribution assesses the consensus-based analysis and reasoning of the European Court of Human Rights in recent judgments concerning equal marriage rights and compares it to the Court’s past jurisprudence on European consensus and the margin of appreciation awarded to Member States regarding the issue of equal marriage rights. The contribution aims to analyse whether there is a parallel to be seen between the rapid global trend of legalisation of same-sex marriage and the development or evolution of the case law of the ECtHR on the same topic. Furthermore, it demonstrates that the Court’s consensus-based analysis is problematic for several reasons and provides possible alternative approaches to the balancing of the Court between, on the one hand, protecting rights of minorities (in this case same-sex couples invoking equal marriage rights) under the European Convention on Human Rights and, on the other hand, maintaining its credibility, authority and legitimacy towards Member States that might disapprove of the evolving case law in the context of same-sex relationships. It also offers insights as to the future of European consensus in the context of equal marriage rights and ends with some concluding remarks.


Masuma Shahid
Lecturer, Department of International and European Union Law, 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 Evaluating BEPS

Journal Erasmus Law Review, Issue 1 2017
Keywords tax avoidance, tax evasion, benefits principle
Authors Reuven S. Avi-Yonah and Haiyan Xu
AbstractAuthor's information

    This article evaluates the recently completed Base Erosion and Profit Shifting (BEPS) project of the G20 and OECD and offers some alternatives for reform.


Reuven S. Avi-Yonah
Reuven Avi-Yonah is Irwin I. Cohn Professor of Law, the University of Michigan.

Haiyan Xu
Haiyan Xu is Professor of Law, University of International Business & Economics, Beijing; SJD candidate, the University of Michigan.
Article

Access_open Raising Barriers to ‘Outlaw Motorcycle Gang-Related Events’

Underlining the Difference between Pre-Emption and Prevention

Journal Erasmus Law Review, Issue 3 2016
Keywords Prevention, pre-crime, pre-emption, risk, outlaw motorcycle gangs
Authors Teun van Ruitenburg
AbstractAuthor's information

    Fighting outlaw motorcycle gangs is currently one of the top priorities of many governments around the world. This is due to the notion that outlaw motorcycle gangs do not consist solely of motorcycle enthusiasts. Numerous cases reveal that these clubs, or at least their members, are involved in (organised) crime. In order to tackle these clubs, the former Dutch Minister of Security and Justice announced a whole-of-government strategy towards outlaw motorcycle gangs in 2012. As part of this effort, authorities such as the Dutch National Police, the Public Prosecution Service, the Dutch Tax Authority and local governments aim to cooperate in order to disrupt and restrict outlaw motorcycle gangs by means of Criminal, Administrative and Civil Law. Part of this strategy is to hinder club-related events. This article discusses the latter strategy in light of the distinction between prevention and pre-emption. As the latter two concepts are often used interchangeably, this article attempts to use a more strict division between prevention and pre-emption. Thereby, it becomes apparent that outlaw motorcycle gangs are to some extent governed through uncertainty. The author suggests that maintaining the ‘prevention–pre-emption distinction’ can offer an interesting and valuable point of departure for analysing today’s crime policies.


Teun van Ruitenburg
Teun van Ruitenburg, MSc., is PhD Candidate at the Criminology Department of the Erasmus University Rotterdam.
Article

Access_open Brazilian Civil Procedure in the ‘Age of Austerity’?

Effectiveness, Speed, and Legal Certainty: Small Claims, Uncontested Claims, and Simplification of Judicial Decisions and Proceedings

Journal Erasmus Law Review, Issue 4 2015
Keywords austerity, civil procedure, access to justice, Brazil, small claims
Authors Antonio Gidi and Hermes Zaneti, Jr.
AbstractAuthor's information

    The current debate in Brazilian Civil Procedure revolves around efficiency, legal certainty, and access to justice, not austerity. As a matter of fact, the debate over austerity is nonexistent in Brazil so far. By expanding the access to justice to a broader portion of the society, the legal system increased the number of cases and the costs associated with the judicial system. But the excess litigation and expense associated with the expansion of access to justice has contradictorily curtailed access to justice. This new situation demands new efforts to increase efficiency and legal certainty, while still increasing access to justice.


Antonio Gidi
Antonio Gidi is Visiting Assistant Professor at the Syracuse University. SJD, University of Pennsylvania Law School; LLM and PhD, PUC-SP University; LLB, Federal University of Bahia.

Hermes Zaneti, Jr.
Hermes Zaneti, Jr. is Professor of Law at the Universidade Federal do Espirito Santo and Prosecutor. PhD in Philosophy and Theory of Law, Università degli Studi di Roma Tre; LLM and PhD in Civil Procedure, Federal University of Rio Grande do Sul (UFRS).
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