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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 Faith and Scepticism in Private International Law: Trust, Governance, Politics, and Foreign Judgments

Journal Erasmus Law Review, Issue 3 2014
Keywords private international law, conflict of laws, foreign judgments, European Union, United States
Authors Christopher Whytock M.S., Ph.D., J.D.
AbstractAuthor's information

    In both the European Union (EU) and the United States (US), the law governing the enforcement of foreign judgments is evolving, but in different directions. EU law, especially after the elimination of exequatur by the 2012 ’Recast’ of the Brussels I Regulation, increasingly facilitates enforcement in member states of judgments of other member states’ courts, reflecting growing faith in a multilateral private international law approach to foreign judgments. In US law, on the other hand, increasingly widespread adoption of state legislation based on the 2005 Uniform Foreign-Country Money Judgments Recognition Act (2005 Act), which adds new case-specific grounds for refusing enforcement, suggests growing scepticism. In this essay, I explore possible reasons for these diverging trends. I begin with the most obvious explanation: the Brussels framework governs the effect of internal EU member state judgments within the EU, whereas the 2005 Act governs the effect of external foreign country judgments within the US. One would expect more mutual trust – and thus more faith in foreign judgment enforcement – internally than externally. But I argue that this mutual trust explanation is only partially satisfactory. I therefore sketch out two other possible explanations. One is that the different trends in EU and US law are a result of an emphasis on ’governance values’ in EU law and an emphasis on ’rights values’ in US law. Another explanation – and perhaps the most fundamental one – is that these trends are ultimately traceable to politics.


Christopher Whytock M.S., Ph.D., J.D.
Christopher Whytock is Professor of Law and Political Science at the University of California, Irvine School of Law.
Article

Access_open The Economics and Empirics of Tax Competition: A Survey and Lessons for the EU

Journal Erasmus Law Review, Issue 1 2014
Keywords tax competition, tax coordination, European Union, fiscal federalism
Authors Thushyanthan Baskaran Ph.D. and Mariana Lopes da Fonseca
AbstractAuthor's information

    We survey the theoretical and empirical literature on local and international tax competition in Economics. On the basis of this survey, we discuss whether EU countries should harmonise tax policies to prevent a race to the bottom. Much of the evidence suggests that tax competition does not lead to significant reductions in tax revenues. Therefore, we conclude that tax coordination is in all likelihood unnecessary to prevent inefficiently low levels of taxation in the EU. But since the evidence against the adverse effects of tax competition is not unambiguous, we also discuss whether intergovernmental transfers might be a less invasive means than outright tax harmonisation to prevent a race to the bottom.


Thushyanthan Baskaran Ph.D.
University of Goettingen, Germany.

Mariana Lopes da Fonseca
University of Goettingen, Germany.
Artikel

Access_open The Value of Narratives

The India-USA Nuclear Deal in Terms of Fragmentation, Pluralism, Constitutionalisation and Global Administrative Law

Journal Erasmus Law Review, Issue 1 2013
Keywords India-US Nuclear Deal, Nuclear Energy Cooperation, Non-Proliferation Treaty, Fragmentation, Constitutionalisation, Pluralism, Global Administrative Law
Authors Surabhi Ranganathan
AbstractAuthor's information

    ‘Fragmentation’, ‘pluralism’, ‘constitutionalisation’ and ‘global administrative law’ are among the most dominant narratives of international legal order at present. Each narrative makes a descriptive claim about the current state of the international legal order, and outlines a normative vision for this order. Yet we must not lose sight of the conflicts between, and the contingency of these, and other narratives. This article seeks to recover both conflicts and contingency by showing how each may be used to explain a given event: the inauguration of a bilateral civil nuclear cooperation between the United State and India, better known as the ‘India-US nuclear deal’. I explain how the four narratives may be, and were, co-opted at different times to justify or critique the ‘deal’. This exercise serve two purposes: the application of four narratives reveal the various facets of the deal, and by its example the deal illuminates the stakes attached to each of the four narratives. In a final section, I reflect on why these four narratives enjoy their influential status in international legal scholarship.


Surabhi Ranganathan
Junior Research Fellow, King’s College/Lauterpacht Centre for International Law, University of Cambridge.
Artikel

Access_open Revisiting the Humanisation of International Law: Limits and Potential

Obligations Erga Omnes, Hierarchy of Rules and the Principle of Due Diligence as the Basis for Further Humanisation

Journal Erasmus Law Review, Issue 1 2013
Keywords humanisation, constitutionalism, legal positivism, human rights, erga omnes, due diligence, positive obligations, normative hierarchy, proportionality
Authors Dr. Vassilis P. Tzevelekos
AbstractAuthor's information

    The article critically evaluates the theory of the humanisation of international law. First, it argues that despite human rights having impact on (other areas of) international law, this trend has in the past been somewhat inflated. A number of examples are given where human rights have been tested against other objectives pursued by international law, with humanisation revealing its limits and actual dimensions. The second argument consists in identifying and highlighting obligations erga omnes (partes) and the principle of due diligence as two ‘systemic’ tools, that are central to the humanisation of international law. Both these tools form part of modern positive law, but may also make a positive contribution towards the direction of deeper humanisation in international law, having the potential, inter alia, to limit state will, establish occasional material normative hierarchy consisting in conditional priority in the fulfilment of human rights, give a communitarian tone to international law and invite states to be pro-active in the collective protection of their common interests and values. In its conclusions, the article offers a plausible explanation about the paradox it identifies of the limits of the humanisation on the one hand, and its potential for further development on the other. For, it is inherent in international law that the line separating the law from deontology is thin. The process of humanisation needs to be balanced with the other objectives of international law as well as reconciled with the decentralised and sovereignist origins of the pluralistic international legal system.


Dr. Vassilis P. Tzevelekos
Lecturer in Public International Law, University of Hull Law School; Attorney, Athens’ Bar. PhD and M.Res, European University Institute; MA, European Political and Administrative Studies, College of Europe; DEA Droit international public et organisations internationales, Paris 1 Panthéon-Sorbonne; LLB, National and Kapodistrian University of Athens.
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