Pub Date : 2020-12-17DOI: 10.18261/issn.2387-3299-2020-03-03
H. Colby, Ana Stella Ebbersmeyer, Lisa Marie Heim, Marthe Kielland Røssaak
This paper aims to determine what the proper role of the judiciary should be in developing climate change policy. It does so in light of the sometimes contentious relationship between ‘activist’ or ‘progressive’ judges and the doctrine of separation of powers. This relationship has a long history by which much of human rights law has been shaped. The paper analyses the court judgments in the cases of Urgenda v Kingdom of the Netherlands, Juliana v United States, and Friends of the Irish Environment v Ireland in order to identify how different legal systems view this relationship. The paper also considers the upcoming climate case in the Supreme Court of Norway. In particular, the question is asked whether the separation of powers in Europe and the United States is a doctrine mandating systems of power balance rather than of strict separation. Drawing on the argumentation from the Urgenda judgment, the paper concludes that the protection and development of human rights should be the main concern in climate change litigation. The judiciary should accordingly take an important role in climate change policy-making in order for the state to comply with its duty to instigate emission limits.
{"title":"Judging Climate Change: The Role of the Judiciary in the Fight Against Climate Change","authors":"H. Colby, Ana Stella Ebbersmeyer, Lisa Marie Heim, Marthe Kielland Røssaak","doi":"10.18261/issn.2387-3299-2020-03-03","DOIUrl":"https://doi.org/10.18261/issn.2387-3299-2020-03-03","url":null,"abstract":"This paper aims to determine what the proper role of the judiciary should be in developing climate change policy. It does so in light of the sometimes contentious relationship between ‘activist’ or ‘progressive’ judges and the doctrine of separation of powers. This relationship has a long history by which much of human rights law has been shaped. The paper analyses the court judgments in the cases of Urgenda v Kingdom of the Netherlands, Juliana v United States, and Friends of the Irish Environment v Ireland in order to identify how different legal systems view this relationship. The paper also considers the upcoming climate case in the Supreme Court of Norway. In particular, the question is asked whether the separation of powers in Europe and the United States is a doctrine mandating systems of power balance rather than of strict separation. Drawing on the argumentation from the Urgenda judgment, the paper concludes that the protection and development of human rights should be the main concern in climate change litigation. The judiciary should accordingly take an important role in climate change policy-making in order for the state to comply with its duty to instigate emission limits.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49307393","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}
Pub Date : 2020-12-17DOI: 10.18261/issn.2387-3299-2020-03-01
A. Nilsson
Proportionality reasoning is an established form of legal argumentation under international human rights law, employed by the European Court of Human Rights and the United Nations (UN) human rights treaty bodies alike. However, relatively little has beenwritten about its precise role and content in relation to equality norms. Proportionality scholars tend to draw on other examples to demonstrate how proportionality reasoning works in practice, and legal scholarship on equality and non-discrimination has not fully explored whether or how proportionality argumentation can assist us in distinguishing lawful state practices from unlawful ones. This article picks up these loose ends and develops a model of proportionality assessment tailored to the non-discrimination context. The model breaksdown proportionalityargumentation into a step-by-step process and sets outclearcriteria tobefulfilled ateach step. It illustrates the distinctive features of balancing as a partof discrimination analysis and provides useful guidance to national authorities tasked with such balancing. It is anchored in existing non-discrimination jurisprudence but structured so as to facilitate more predictable outcomes than existing justification tests.
{"title":"Same, Same but Different: Proportionality Assessments and Equality Norms","authors":"A. Nilsson","doi":"10.18261/issn.2387-3299-2020-03-01","DOIUrl":"https://doi.org/10.18261/issn.2387-3299-2020-03-01","url":null,"abstract":"Proportionality reasoning is an established form of legal argumentation under international human rights law, employed by the European Court of Human Rights and the United Nations (UN) human rights treaty bodies alike. However, relatively little has beenwritten about its precise role and content in relation to equality norms. Proportionality scholars tend to draw on other examples to demonstrate how proportionality reasoning works in practice, and legal scholarship on equality and non-discrimination has not fully explored whether or how proportionality argumentation can assist us in distinguishing lawful state practices from unlawful ones. This article picks up these loose ends and develops a model of proportionality assessment tailored to the non-discrimination context. The model breaksdown proportionalityargumentation into a step-by-step process and sets outclearcriteria tobefulfilled ateach step. It illustrates the distinctive features of balancing as a partof discrimination analysis and provides useful guidance to national authorities tasked with such balancing. It is anchored in existing non-discrimination jurisprudence but structured so as to facilitate more predictable outcomes than existing justification tests.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47639044","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}
Pub Date : 2020-10-13DOI: 10.18261/issn.2387-3299-2020-02-01
T. Myklebust
The EU Commission’s Action Plan on Financing Sustainable Growth reflects a pivotal shift in policy priorities, spurred by a fast-moving international agenda, and specifically the adoption of the Paris Agreement and the UN Sustainable Development Goals. The ambitious goals of the Action Plan require private capital to be reoriented to more sustainable investment purposes. To this end, one key objective in the Action Plan is to foster transparency and long-termism in financial and economic activity, implemented among others through imposing new requirements on ESG-related disclosure on companies and financial market actors. This article investigates whether and how that policy objective is impacted by the ubiquitous market practice of high-frequency trading (HFT). Evidence suggests that HFT may have an inbuilt focus on short-term pricing signals. Furthermore, HFT can hamper the uptake of the new ESG-related disclosure requirements with negative effect for sustainable market outcomes. Neither the new regulatory initiatives nor the current regulatory measures in Directive 2014/65/EU (MiFID II) will alleviate these shortcomings. This constitutes a gap in the policy agenda relating to the institutional and organisational features of the current market structure. These issues should be given consideration in future policy-making assessments and efforts aiming to improve long-term sustainability in financial markets.
{"title":"High-Frequency Trading as an Impediment to Long-Term and Sustainable Finance: Identifying a Regulatory Gap that Can Put the Goals of the European Action Plan on Financing Sustainable Growth at Risk","authors":"T. Myklebust","doi":"10.18261/issn.2387-3299-2020-02-01","DOIUrl":"https://doi.org/10.18261/issn.2387-3299-2020-02-01","url":null,"abstract":"The EU Commission’s Action Plan on Financing Sustainable Growth reflects a pivotal shift in policy priorities, spurred by a fast-moving international agenda, and specifically the adoption of the Paris Agreement and the UN Sustainable Development Goals. The ambitious goals of the Action Plan require private capital to be reoriented to more sustainable investment purposes. To this end, one key objective in the Action Plan is to foster transparency and long-termism in financial and economic activity, implemented among others through imposing new requirements on ESG-related disclosure on companies and financial market actors. This article investigates whether and how that policy objective is impacted by the ubiquitous market practice of high-frequency trading (HFT). Evidence suggests that HFT may have an inbuilt focus on short-term pricing signals. Furthermore, HFT can hamper the uptake of the new ESG-related disclosure requirements with negative effect for sustainable market outcomes. Neither the new regulatory initiatives nor the current regulatory measures in Directive 2014/65/EU (MiFID II) will alleviate these shortcomings. This constitutes a gap in the policy agenda relating to the institutional and organisational features of the current market structure. These issues should be given consideration in future policy-making assessments and efforts aiming to improve long-term sustainability in financial markets.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-10-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42612509","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}
Pub Date : 2020-10-13DOI: 10.18261/issn.2387-3299-2020-02-02
Frode Steen, Eirik Østerud
Twentieth-century cartel registers, operated in a number of countries predominantly from around 1950 to the early 1990s, are a new international field of research. Such registers provide empirical data for research in a variety of fields, including law and economics. This article gives an overview of Norwegian cartel regulation, policy, registration and practice from 1954 to 1993, that is the period in which the Norwegian Price and Competition Act 1953 remained in force. To do so, we combine legal sources, historical accounts and a unique dataset collected and coded from the Norwegian Cartel Registry. In 1957 and 1960, vertical and horizontal price fixing respectively was generally prohibited. Using Norwegian cartel register data, we discuss whether and how these regulatory changes affected Norwegian cartel activity and organisation. We find that Norwegian cartels were long-lived, and that the typical cartel was a pure pricing cartel. Notwithstanding a lenient exemption policy, the prohibitions reduced the number of pricing cartels. The reduction was largely caused by the composition of entering cartels, as well as pricing cartels leaving the market. Very few cartels seemingly changed their cartel agreements. Our data suggests that established cartels were, perhaps surprisingly, non-flexible with regard to alternative modes of anti-competitive coordination.
{"title":"Norwegian Cartels: Law, Policy, Registration and Practice under the Price and Competition Act between 1954 and 1993","authors":"Frode Steen, Eirik Østerud","doi":"10.18261/issn.2387-3299-2020-02-02","DOIUrl":"https://doi.org/10.18261/issn.2387-3299-2020-02-02","url":null,"abstract":"Twentieth-century cartel registers, operated in a number of countries predominantly from around 1950 to the early 1990s, are a new international field of research. Such registers provide empirical data for research in a variety of fields, including law and economics. This article gives an overview of Norwegian cartel regulation, policy, registration and practice from 1954 to 1993, that is the period in which the Norwegian Price and Competition Act 1953 remained in force. To do so, we combine legal sources, historical accounts and a unique dataset collected and coded from the Norwegian Cartel Registry. In 1957 and 1960, vertical and horizontal price fixing respectively was generally prohibited. Using Norwegian cartel register data, we discuss whether and how these regulatory changes affected Norwegian cartel activity and organisation. We find that Norwegian cartels were long-lived, and that the typical cartel was a pure pricing cartel. Notwithstanding a lenient exemption policy, the prohibitions reduced the number of pricing cartels. The reduction was largely caused by the composition of entering cartels, as well as pricing cartels leaving the market. Very few cartels seemingly changed their cartel agreements. Our data suggests that established cartels were, perhaps surprisingly, non-flexible with regard to alternative modes of anti-competitive coordination.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-10-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44493642","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}
Pub Date : 2020-04-21DOI: 10.1826/ISSN.2387-3299-2020-01-04
Laima Vaige
{"title":"‘Listening to the Winds’ of Europeanisation?","authors":"Laima Vaige","doi":"10.1826/ISSN.2387-3299-2020-01-04","DOIUrl":"https://doi.org/10.1826/ISSN.2387-3299-2020-01-04","url":null,"abstract":"","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49511777","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}
Pub Date : 2020-04-21DOI: 10.1826/ISSN.2387-3299-2020-01-01
Tone Linn Wærstad
{"title":"Human Rights and Private International Law in the Family Law Area","authors":"Tone Linn Wærstad","doi":"10.1826/ISSN.2387-3299-2020-01-01","DOIUrl":"https://doi.org/10.1826/ISSN.2387-3299-2020-01-01","url":null,"abstract":"","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47461660","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}
Pub Date : 2020-04-21DOI: 10.1826/ISSN.2387-3299-2020-01-03
Sanna Mustasaari
{"title":"Finnish Children or ‘Cubs of the Caliphate’?","authors":"Sanna Mustasaari","doi":"10.1826/ISSN.2387-3299-2020-01-03","DOIUrl":"https://doi.org/10.1826/ISSN.2387-3299-2020-01-03","url":null,"abstract":"","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47890283","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}
Pub Date : 2020-04-21DOI: 10.1826/ISSN.2387-3299-2020-01-02
N. Dowd
Family law, and the systems with which families interact, and child law or children’s rights, are typically viewed as separate legal subjects or categories. This essay challenges that separation and its consequences for family issues, arguing that family law and the systems with which families interact would benefit from a stronger infusion of children’s perspectives, interests and rights. One benefit would be a stronger structural or systemic focus to family law, reflecting the responsibilities of the State for children in the form of positive socio-economic supports for systems of health, education, housing and employment that are critical to children’s development. Through the example of immigrant children and their families, the essay explores the potential structural impact of children’s rights and perspectives in order to illustrate how a child rights perspective would affect the content and implementation of law and policy.
{"title":"Expanding the Framework of Family Issues: Bringing Children’s Rights and Children’s Perspectives into Immigration","authors":"N. Dowd","doi":"10.1826/ISSN.2387-3299-2020-01-02","DOIUrl":"https://doi.org/10.1826/ISSN.2387-3299-2020-01-02","url":null,"abstract":"Family law, and the systems with which families interact, and child law or children’s rights, are typically viewed as separate legal subjects or categories. This essay challenges that separation and its consequences for family issues, arguing that family law and the systems with which families interact would benefit from a stronger infusion of children’s perspectives, interests and rights. One benefit would be a stronger structural or systemic focus to family law, reflecting the responsibilities of the State for children in the form of positive socio-economic supports for systems of health, education, housing and employment that are critical to children’s development. Through the example of immigrant children and their families, the essay explores the potential structural impact of children’s rights and perspectives in order to illustrate how a child rights perspective would affect the content and implementation of law and policy.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41694337","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}
Pub Date : 2020-01-01DOI: 10.18261/issn.2387-3299-2020-02-03
Lene Kühle, Helge Årsheim
This article examines the decisions on religious and gender discrimination handed down by two quasi-judicial monitoring bodies in Denmark and Norway, mapping similarities and differences between the two bodies. While the monitoring bodies tend to arrive at similar results, their modes of reasoning and understanding of what constitutes ‘religion’ for legal purposes differ considerably. Looking in particular at the decisions on religious headgear and handshaking, the article suggests that these differences may be due to a range of different factors, from the legal framework on anti-discrimination in the two countries, to the staffing of the monitoring bodies, and the financial support available for their work.
{"title":"Governing Religion and Gender in Anti-Discrimination Laws in Norway and Denmark","authors":"Lene Kühle, Helge Årsheim","doi":"10.18261/issn.2387-3299-2020-02-03","DOIUrl":"https://doi.org/10.18261/issn.2387-3299-2020-02-03","url":null,"abstract":"This article examines the decisions on religious and gender discrimination handed down by two quasi-judicial monitoring bodies in Denmark and Norway, mapping similarities and differences between the two bodies. While the monitoring bodies tend to arrive at similar results, their modes of reasoning and understanding of what constitutes ‘religion’ for legal purposes differ considerably. Looking in particular at the decisions on religious headgear and handshaking, the article suggests that these differences may be due to a range of different factors, from the legal framework on anti-discrimination in the two countries, to the staffing of the monitoring bodies, and the financial support available for their work.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"7 1","pages":"105-122"},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67720716","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}
Pub Date : 2019-12-20DOI: 10.18261/issn.2387-3299-2019-03-01
Stian Øby Johansen
Responsibility, and in particular attribution of conduct, is one of the most intensely debated issues of public international law in the last couple of decades. In this article I seek to determine whether, how, and when acts or omissions may be attributed both to an international organisation and a member State (dual attribution). My aim is to clarify what dual attribution is, and what it is not. This is done in two steps. First, I (a) define the concept of dual attribution, (b) demonstrate that dual attribution is possible under the current law of international responsibility, and (c) establish a typology of dual attribution. Second, dual attribution is distinguished from three forms of shared responsibility. These are situations of two acts or omissions leading to one injury, derived responsibility, and the notion of piercing the corporate veil of international organisation. I end the article by criticising the disproportionate attention given to dual attribution in legal scholarship, given its limited practical utility.
{"title":"Dual Attribution of Conduct to both an International Organisation and a Member State","authors":"Stian Øby Johansen","doi":"10.18261/issn.2387-3299-2019-03-01","DOIUrl":"https://doi.org/10.18261/issn.2387-3299-2019-03-01","url":null,"abstract":"Responsibility, and in particular attribution of conduct, is one of the most intensely debated issues of public international law in the last couple of decades. In this article I seek to determine whether, how, and when acts or omissions may be attributed both to an international organisation and a member State (dual attribution). My aim is to clarify what dual attribution is, and what it is not. This is done in two steps. First, I (a) define the concept of dual attribution, (b) demonstrate that dual attribution is possible under the current law of international responsibility, and (c) establish a typology of dual attribution. Second, dual attribution is distinguished from three forms of shared responsibility. These are situations of two acts or omissions leading to one injury, derived responsibility, and the notion of piercing the corporate veil of international organisation. I end the article by criticising the disproportionate attention given to dual attribution in legal scholarship, given its limited practical utility.","PeriodicalId":36793,"journal":{"name":"Oslo Law Review","volume":"6 1","pages":"178-197"},"PeriodicalIF":0.0,"publicationDate":"2019-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41804748","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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