When democracy arrived in South Africa during the 1990’s, land reform became a constitutional imperative. It involves the redistribution of land, presently held mostly by white owners, in order to rectify wrongs of the past and to achieve a more representative pattern of land ownership amongst its various population groups. The land reform initiatives undertaken by the government have to date achieved limited success, and popular demands for new legislation (including possible amendments to the Constitution), new procedures and accelerated implementation are increasing. This paper focuses, against the backdrop of South Africa’s land reform initiatives, on the current state of the law on expropriation and on the debate relating to the determination of compensation, particularly on calls for nil or low level compensation. It also looks at existing and proposed legislation, reports by advisory panels and court judgments pertaining to the issue.
{"title":"The Debate about Full, Partial or Nil Compensation in Expropriations for Land Reform Purposes in South Africa","authors":"A. Gildenhuys","doi":"10.1515/eplj-2019-0007","DOIUrl":"https://doi.org/10.1515/eplj-2019-0007","url":null,"abstract":"When democracy arrived in South Africa during the 1990’s, land reform became a constitutional imperative. It involves the redistribution of land, presently held mostly by white owners, in order to rectify wrongs of the past and to achieve a more representative pattern of land ownership amongst its various population groups. The land reform initiatives undertaken by the government have to date achieved limited success, and popular demands for new legislation (including possible amendments to the Constitution), new procedures and accelerated implementation are increasing. This paper focuses, against the backdrop of South Africa’s land reform initiatives, on the current state of the law on expropriation and on the debate relating to the determination of compensation, particularly on calls for nil or low level compensation. It also looks at existing and proposed legislation, reports by advisory panels and court judgments pertaining to the issue.","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123899811","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract In the late 1950 s René Savatier foretold that the qualification of economic value itself as property (bien) would have been the ultimate evolution of the theory of property rights. This prediction has come true with regard to the case law of the European Court of Human Rights (ECtHR) and the European Court of Justice (CJEU). This paper investigates the implications of the understanding of property developed by the two European Courts on the concept of expropriation itself as well as for the principles governing expropriation law. Hence, the paper illustrates the role played by both the ECtHR and the CJEU in laying down the parameters of legitimacy for national law, including property law. Within this context, the focus falls on cases in which the Courts characterize the facts as deprivation of property requiring for compensation, even though the relevant property could not be the object of expropriation under the domestic law of the defendant State. My contribution brings new insights into the current transformation of the traditional property categories and suggests the reinterpretation of some key concepts of expropriation law.
{"title":"Property and Expropriation: Two Concepts Revisited in the Light of the Case Law of the European Court of Human Rights and the European Court of Justice","authors":"S. Praduroux","doi":"10.1515/eplj-2019-0012","DOIUrl":"https://doi.org/10.1515/eplj-2019-0012","url":null,"abstract":"Abstract In the late 1950 s René Savatier foretold that the qualification of economic value itself as property (bien) would have been the ultimate evolution of the theory of property rights. This prediction has come true with regard to the case law of the European Court of Human Rights (ECtHR) and the European Court of Justice (CJEU). This paper investigates the implications of the understanding of property developed by the two European Courts on the concept of expropriation itself as well as for the principles governing expropriation law. Hence, the paper illustrates the role played by both the ECtHR and the CJEU in laying down the parameters of legitimacy for national law, including property law. Within this context, the focus falls on cases in which the Courts characterize the facts as deprivation of property requiring for compensation, even though the relevant property could not be the object of expropriation under the domestic law of the defendant State. My contribution brings new insights into the current transformation of the traditional property categories and suggests the reinterpretation of some key concepts of expropriation law.","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125509322","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Digital coins have burst into mainstream awareness recently, mainly as a result of high-worth ‘Initial Coin Offerings’ (‘ICOs’). The most immediate question in the legal treatment of digital coins is whether they are properly seen as digital ‘commodities’, and/or as ‘securities’, and/or as units of ‘money’. But the conceptual underpinnings of these categories are not clear, nor is it clear how these categories relate to each other; no legal system currently deals adequately with incorporeal objects as objects of property law. This category includes not only digital coins but also some forms of conventional money and securities. Establishing a satisfactory account of their treatment in property law is therefore a necessary first step to incorporating digital coins into private law theory. I argue that this task is best approached on the basis of a plausible ontology of incorporeal objects, including those embodied in paper (i.e. banknotes and conventional securities) and those that exist natively in ‘cyberspace’ (i.e. electronic ‘book-money’, modern securities, and now digital coins). We therefore urgently need to develop a plausible account of a how packets of data can be treated as an object of property rights. Using a comparative analysis of English law and Civilian law (particularly German) concepts of property as an entry point into this complex of problems, I explore the ontology of incorporeal objects and the role of documentation in their creation and maintenance as part of the ‘ontic furniture’ of our economic world. I explore the conceptual basis of property in digital coins in terms of a new category of property. Such a category is long overdue and will be increasingly important in the future.
{"title":"Property in Digital Coins","authors":"J. Allen","doi":"10.1515/eplj-2019-0005","DOIUrl":"https://doi.org/10.1515/eplj-2019-0005","url":null,"abstract":"Abstract Digital coins have burst into mainstream awareness recently, mainly as a result of high-worth ‘Initial Coin Offerings’ (‘ICOs’). The most immediate question in the legal treatment of digital coins is whether they are properly seen as digital ‘commodities’, and/or as ‘securities’, and/or as units of ‘money’. But the conceptual underpinnings of these categories are not clear, nor is it clear how these categories relate to each other; no legal system currently deals adequately with incorporeal objects as objects of property law. This category includes not only digital coins but also some forms of conventional money and securities. Establishing a satisfactory account of their treatment in property law is therefore a necessary first step to incorporating digital coins into private law theory. I argue that this task is best approached on the basis of a plausible ontology of incorporeal objects, including those embodied in paper (i.e. banknotes and conventional securities) and those that exist natively in ‘cyberspace’ (i.e. electronic ‘book-money’, modern securities, and now digital coins). We therefore urgently need to develop a plausible account of a how packets of data can be treated as an object of property rights. Using a comparative analysis of English law and Civilian law (particularly German) concepts of property as an entry point into this complex of problems, I explore the ontology of incorporeal objects and the role of documentation in their creation and maintenance as part of the ‘ontic furniture’ of our economic world. I explore the conceptual basis of property in digital coins in terms of a new category of property. Such a category is long overdue and will be increasingly important in the future.","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"21 3","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114105528","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Institutional Foundations of Impersonal Exchange, Benito Arruñada","authors":"Gabriel Gabriel Brennan","doi":"10.1515/eplj-2019-0006","DOIUrl":"https://doi.org/10.1515/eplj-2019-0006","url":null,"abstract":"","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130544728","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Following up on the first instalment of what will hopefully evolve into a long and fruitful series, this article intends to present an overview of contributions to the field of European property law published in 2017 and 2018. Once again, the aim is not to provide an in-depth critical review of individual works, but to offer a panoramic view of recent publications. This necessitates a somewhat general approach, allowing for only short descriptions and outlines of the books and articles presented. Grouped by subject matter, the brief remarks on each work are intended to give the reader a first orientation regarding current issues and debates, and to invite further exploration. Two remarkable trends emerge from the bird’s-eye view of recent publications. Firstly, property law – often considered a static and staid discipline – seems to be undergoing a “rejuvenating cure”. This is evident on the personnel level: a remarkable number of contributions come from young scholars at the outset of their careers as property law is an increasingly popular area for PhD and postgraduate dissertations. But it also holds true in terms of content: fresh angles, methods and approaches are brought to bear both on questions of traditional property law dogmatics and on new challenges. Secondly, the boundaries of property law are continuously opening up, going beyond the classic “law of things” to branch out into neighbouring disciplines while incorporating practice-oriented approaches and inter-disciplinary connections into dogmatic property law research. As many of the newly arising challenges to property law are of global importance, purely national angles of research are increasingly replaced by encompassing internationality.
{"title":"What’s New in European Property Law?","authors":"C. Rupp","doi":"10.1515/eplj-2019-0004","DOIUrl":"https://doi.org/10.1515/eplj-2019-0004","url":null,"abstract":"Following up on the first instalment of what will hopefully evolve into a long and fruitful series, this article intends to present an overview of contributions to the field of European property law published in 2017 and 2018. Once again, the aim is not to provide an in-depth critical review of individual works, but to offer a panoramic view of recent publications. This necessitates a somewhat general approach, allowing for only short descriptions and outlines of the books and articles presented. Grouped by subject matter, the brief remarks on each work are intended to give the reader a first orientation regarding current issues and debates, and to invite further exploration. Two remarkable trends emerge from the bird’s-eye view of recent publications. Firstly, property law – often considered a static and staid discipline – seems to be undergoing a “rejuvenating cure”. This is evident on the personnel level: a remarkable number of contributions come from young scholars at the outset of their careers as property law is an increasingly popular area for PhD and postgraduate dissertations. But it also holds true in terms of content: fresh angles, methods and approaches are brought to bear both on questions of traditional property law dogmatics and on new challenges. Secondly, the boundaries of property law are continuously opening up, going beyond the classic “law of things” to branch out into neighbouring disciplines while incorporating practice-oriented approaches and inter-disciplinary connections into dogmatic property law research. As many of the newly arising challenges to property law are of global importance, purely national angles of research are increasingly replaced by encompassing internationality.","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131268336","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Today’s data economy is increasing in size and importance in an incredibly rapid pace. We are, as the World Economic Forum in Davos states, at the middle of the “Fourth Industrial Revolution”, characterised by so-called disruptive technologies. Information gathering has always taken place, but in physically (printed) format. Nowadays, however, information is more and more laid down in data. But what are “data”? According to the ISO definition of data (ISO/IEC 2382–1, revised by ISO/IEC 2382:2015 – Information technology – Vocabulary) data is “Reinterpretable representation of information in a formalized manner suitable for communication, interpretation, or processing.” Consequently, data is a subset of information, which in its turn is a subset of “facts”. Within data we can distinguish various types of data. To give but a few examples: Raw data, metadata, derived data, processed data, “big” data and data in a hybrid world (“Internet of Things”, where physical things function if connected with the data economy, e.g. through sensors). An important distinction is made between privacy protected data and non-personal data. Privacy protected or personal data is described in the European Union’s Data Protection Regulation (article 4) as “any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person”. All other data will be freely tradable according to article 3 (1) of the (draft) EU Regulation on Free Data Flow of Non-Personal Data. Data, however these are being defined, are harvested, processed and used with the help of several fairly recent technologies, which are seen as disturbing existing social and economic patterns. Data can be stored in immutable format without the intervention of trusted third parties (blockchain or distributed ledger
{"title":"The need for a common vocabulary on “data ownership”","authors":"Sjef van Erp","doi":"10.1515/eplj-2019-0001","DOIUrl":"https://doi.org/10.1515/eplj-2019-0001","url":null,"abstract":"Today’s data economy is increasing in size and importance in an incredibly rapid pace. We are, as the World Economic Forum in Davos states, at the middle of the “Fourth Industrial Revolution”, characterised by so-called disruptive technologies. Information gathering has always taken place, but in physically (printed) format. Nowadays, however, information is more and more laid down in data. But what are “data”? According to the ISO definition of data (ISO/IEC 2382–1, revised by ISO/IEC 2382:2015 – Information technology – Vocabulary) data is “Reinterpretable representation of information in a formalized manner suitable for communication, interpretation, or processing.” Consequently, data is a subset of information, which in its turn is a subset of “facts”. Within data we can distinguish various types of data. To give but a few examples: Raw data, metadata, derived data, processed data, “big” data and data in a hybrid world (“Internet of Things”, where physical things function if connected with the data economy, e.g. through sensors). An important distinction is made between privacy protected data and non-personal data. Privacy protected or personal data is described in the European Union’s Data Protection Regulation (article 4) as “any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person”. All other data will be freely tradable according to article 3 (1) of the (draft) EU Regulation on Free Data Flow of Non-Personal Data. Data, however these are being defined, are harvested, processed and used with the help of several fairly recent technologies, which are seen as disturbing existing social and economic patterns. Data can be stored in immutable format without the intervention of trusted third parties (blockchain or distributed ledger","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115246957","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Scandinavian “functional” approach to movable property from a Danish view – including the question of “tradition”","authors":"Astrid Millung-Christoffersen","doi":"10.1515/eplj-2019-0003","DOIUrl":"https://doi.org/10.1515/eplj-2019-0003","url":null,"abstract":"","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"120 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128049512","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The lex rei sitae is one of the best-known rules of private international law (PIL). It certainly is one of the most straightforward – easy both to understand (at least in its basic mechanism) and to apply. Among the traditional arguments in favour of the lex rei sitae, the connection to territorial sovereignty, the facilitation of the enforcement of judgements and the practical need for the registration of in rem rights to adhere to the rules and procedures of the registration state have been the most prominent. Regarding immovables, the lex rei sitae and its stability and clarity have not been challenged as of yet. For movables, some exceptions to the strict situs rule can be found and in recent years, a general debate about possible alternatives to the lex rei sitae for “mobile” assets has started in earnest, but a fundamental change of this general PIL rule for property law questions cannot be
{"title":"The lex rei sitae and Its Neighbours – Debates, Developments, and Delineating Boundaries Between PIL Rules","authors":"C. Rupp","doi":"10.1515/eplj-2018-0013","DOIUrl":"https://doi.org/10.1515/eplj-2018-0013","url":null,"abstract":"The lex rei sitae is one of the best-known rules of private international law (PIL). It certainly is one of the most straightforward – easy both to understand (at least in its basic mechanism) and to apply. Among the traditional arguments in favour of the lex rei sitae, the connection to territorial sovereignty, the facilitation of the enforcement of judgements and the practical need for the registration of in rem rights to adhere to the rules and procedures of the registration state have been the most prominent. Regarding immovables, the lex rei sitae and its stability and clarity have not been challenged as of yet. For movables, some exceptions to the strict situs rule can be found and in recent years, a general debate about possible alternatives to the lex rei sitae for “mobile” assets has started in earnest, but a fundamental change of this general PIL rule for property law questions cannot be","PeriodicalId":338086,"journal":{"name":"European Property Law Journal","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114848120","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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