Pub Date : 2022-01-10DOI: 10.1163/22134514-09010001
A. Mccann
Prior to 2021, assisted dying was lawful in only four European jurisdictions – the Netherlands, Belgium, Luxemburg and Switzerland.1 Over the course of the next few years, this list is likely to increase significantly. In March 2021, the Spanish Parliament passed a Bill permitting adults with ‘serious and incurable’ diseases that cause ‘unbearable suffering’ to avail of either active euthanasia or assisted suicide.2 In November 2021, the first medically assisted suicide in Italy was authorised by the ethics committee of the regional public health authority of Marche.3 This follows a decision by the Italian Constitutional Court in 2019 that assisted suicide ought to be permissible in limited circumstances.4 In addition to this, a leading Italian right-to-die association (Associazione Luca Coscioni) secured over one million signatures to force a referendum on decriminalising euthanasia – which is expected to take place in 2022 subject to judicial approval.5 Beyond these developments in Spain and Italy, the Portuguese Parliament passed two Bills in 2021 permitting active euthanasia
{"title":"The Emergence of Assisted Dying Legislation in Europe in Light of Supra-national Governance Failures","authors":"A. Mccann","doi":"10.1163/22134514-09010001","DOIUrl":"https://doi.org/10.1163/22134514-09010001","url":null,"abstract":"Prior to 2021, assisted dying was lawful in only four European jurisdictions – the Netherlands, Belgium, Luxemburg and Switzerland.1 Over the course of the next few years, this list is likely to increase significantly. In March 2021, the Spanish Parliament passed a Bill permitting adults with ‘serious and incurable’ diseases that cause ‘unbearable suffering’ to avail of either active euthanasia or assisted suicide.2 In November 2021, the first medically assisted suicide in Italy was authorised by the ethics committee of the regional public health authority of Marche.3 This follows a decision by the Italian Constitutional Court in 2019 that assisted suicide ought to be permissible in limited circumstances.4 In addition to this, a leading Italian right-to-die association (Associazione Luca Coscioni) secured over one million signatures to force a referendum on decriminalising euthanasia – which is expected to take place in 2022 subject to judicial approval.5 Beyond these developments in Spain and Italy, the Portuguese Parliament passed two Bills in 2021 permitting active euthanasia","PeriodicalId":37233,"journal":{"name":"European Journal of Comparative Law and Governance","volume":"1 1","pages":""},"PeriodicalIF":0.5,"publicationDate":"2022-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41470557","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 : 2021-09-29DOI: 10.1163/22134514-08020007
{"title":"Contents","authors":"","doi":"10.1163/22134514-08020007","DOIUrl":"https://doi.org/10.1163/22134514-08020007","url":null,"abstract":"","PeriodicalId":37233,"journal":{"name":"European Journal of Comparative Law and Governance","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2021-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45602901","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 : 2021-09-09DOI: 10.1163/22134514-bja10025
Gert Brüggemeier
{"title":"J.-S. Borghetti & S. Whittaker (eds), French Civil Liability in Comparative Perspective, Studies of the Oxford Institute of European and Comparative Law","authors":"Gert Brüggemeier","doi":"10.1163/22134514-bja10025","DOIUrl":"https://doi.org/10.1163/22134514-bja10025","url":null,"abstract":"","PeriodicalId":37233,"journal":{"name":"European Journal of Comparative Law and Governance","volume":"1 1","pages":""},"PeriodicalIF":0.5,"publicationDate":"2021-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43294865","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 : 2021-08-24DOI: 10.1163/22134514-bja10024
Andi Hoxhaj, Fabian Zhilla
This article offers a comparative analysis of the covid-19 legal measures and model of governance adopted in the Western Balkans countries (Albania, Bosnia and Herzegovina, North Macedonia, Montenegro, Serbia and Kosovo) and its impact on the state of the rule of law, and ability of parliament and civil society to scrutinise government decisions. The article assesses the governments’ approaches to introducing and enforcing covid-19 legal measures, and shows examples of how covid-19 has exposed more openly the weaknesses in the existing system of checks and balances in the Western Balkans. The article offers new insights into how covid-19 presented a new opportunity for leaders in the Western Balkans to implement further their authoritarian model of governance in undermining the rule of law. This article offers suggestions on how the EU could respond, through its accession conditionality instruments and civil society, to redirect this trend towards more state capture.
{"title":"The Impact of covid-19 Measures on the Rule of Law in the Western Balkans and the Increase of Authoritarianism","authors":"Andi Hoxhaj, Fabian Zhilla","doi":"10.1163/22134514-bja10024","DOIUrl":"https://doi.org/10.1163/22134514-bja10024","url":null,"abstract":"\u0000This article offers a comparative analysis of the covid-19 legal measures and model of governance adopted in the Western Balkans countries (Albania, Bosnia and Herzegovina, North Macedonia, Montenegro, Serbia and Kosovo) and its impact on the state of the rule of law, and ability of parliament and civil society to scrutinise government decisions. The article assesses the governments’ approaches to introducing and enforcing covid-19 legal measures, and shows examples of how covid-19 has exposed more openly the weaknesses in the existing system of checks and balances in the Western Balkans. The article offers new insights into how covid-19 presented a new opportunity for leaders in the Western Balkans to implement further their authoritarian model of governance in undermining the rule of law. This article offers suggestions on how the EU could respond, through its accession conditionality instruments and civil society, to redirect this trend towards more state capture.","PeriodicalId":37233,"journal":{"name":"European Journal of Comparative Law and Governance","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2021-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46455014","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 : 2021-06-22DOI: 10.1163/22134514-bja10023
Cláudio de Oliveira Santos Colnago, B. Shiner
The right to freedom of thought is guaranteed by Article 13 of the American Convention on Human Rights, yet current jurisprudence interprets the right as a mere dimension of freedom of expression, also protected by Article 13. Contemporary neurotechnology research presents the possibility for human thoughts to be tracked, recorded, analysed and predicted. This applies pressure upon the Inter-American Court of Human Rights’ current understanding of the right to freedom of thought. Firstly, this paper will examine how Article 13 has been interpreted by the Inter-American Court of Human Rights at different stages of its jurisprudence. Secondly, by considering both technological advances and the other rights guaranteed by the Convention, this paper argues for an evolution in the interpretation of Article 13 whereby the right to freedom of thought is understood as a distinct right, separate from freedom of expression. Finally, this paper proposes that the positive duty to secure Convention rights requires States to enact preventative legislation and regulations. Existing bioethics principles should be drawn upon to inform human rights-compliant laws and regulations that require the architectural design of technologies to limit the potential to infringe upon freedom of thought.
{"title":"A Distinct Right to Freedom of Thought in South America","authors":"Cláudio de Oliveira Santos Colnago, B. Shiner","doi":"10.1163/22134514-bja10023","DOIUrl":"https://doi.org/10.1163/22134514-bja10023","url":null,"abstract":"\u0000The right to freedom of thought is guaranteed by Article 13 of the American Convention on Human Rights, yet current jurisprudence interprets the right as a mere dimension of freedom of expression, also protected by Article 13. Contemporary neurotechnology research presents the possibility for human thoughts to be tracked, recorded, analysed and predicted. This applies pressure upon the Inter-American Court of Human Rights’ current understanding of the right to freedom of thought. Firstly, this paper will examine how Article 13 has been interpreted by the Inter-American Court of Human Rights at different stages of its jurisprudence. Secondly, by considering both technological advances and the other rights guaranteed by the Convention, this paper argues for an evolution in the interpretation of Article 13 whereby the right to freedom of thought is understood as a distinct right, separate from freedom of expression. Finally, this paper proposes that the positive duty to secure Convention rights requires States to enact preventative legislation and regulations. Existing bioethics principles should be drawn upon to inform human rights-compliant laws and regulations that require the architectural design of technologies to limit the potential to infringe upon freedom of thought.","PeriodicalId":37233,"journal":{"name":"European Journal of Comparative Law and Governance","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2021-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46529109","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 : 2021-05-26DOI: 10.1163/22134514-BJA10021
R. Mushkat
Students of comparative constitutional design grapple with myriad complex normative and empirical issues. Prominent among them is the relative effectiveness of different governance regimes. Concerns stemming from the perceived malfunctioning of modern democracies have intensified efforts to diagnose and rectify the supposedly proliferating ills. The seemingly solid post-1978 Chinese record of steadily managing intricate societal challenges has highlighted the possible advantages of the country’s tightly controlled top-down institutional apparatus and its potential value as a model worth broadly exploring and even embracing on a meaningful scale. This view, authoritatively and vigorously articulated by an influential and prolific political philosopher and his academic associates, has evolved to a point whereby the Chinese constitutional order and contemporary experience are portrayed as being capable of fruitfully supplanting democratic structures or, alternatively, productively revitalising them. Yet, on the whole, this remains a controversial politico-legal proposition, conceptually problematic and lacking sufficient factual support.
{"title":"From China’s “Political Meritocracy” to “Just Hierarchy”: the Elusive Search for a Viable Post-Democratic Governance Regime in the Era of Coronavirus","authors":"R. Mushkat","doi":"10.1163/22134514-BJA10021","DOIUrl":"https://doi.org/10.1163/22134514-BJA10021","url":null,"abstract":"\u0000Students of comparative constitutional design grapple with myriad complex normative and empirical issues. Prominent among them is the relative effectiveness of different governance regimes. Concerns stemming from the perceived malfunctioning of modern democracies have intensified efforts to diagnose and rectify the supposedly proliferating ills. The seemingly solid post-1978 Chinese record of steadily managing intricate societal challenges has highlighted the possible advantages of the country’s tightly controlled top-down institutional apparatus and its potential value as a model worth broadly exploring and even embracing on a meaningful scale. This view, authoritatively and vigorously articulated by an influential and prolific political philosopher and his academic associates, has evolved to a point whereby the Chinese constitutional order and contemporary experience are portrayed as being capable of fruitfully supplanting democratic structures or, alternatively, productively revitalising them. Yet, on the whole, this remains a controversial politico-legal proposition, conceptually problematic and lacking sufficient factual support.","PeriodicalId":37233,"journal":{"name":"European Journal of Comparative Law and Governance","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2021-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46057521","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 : 2021-05-17DOI: 10.1163/22134514-bja10020
S. Fox
Cooperation is key to policing and keeping mankind safe and secure; this includes protecting citizens from various crimes, including terrorist attacks. However, it is not an easy feat to always achieve – as is explained within this paper. The related research considers the complexities and challenges of sharing and coordinating across divides – or, in other words, cooperating across borders (be they open or closed). Specifically, it discusses the advancements made between one bloc of countries – the European Union; and, how the evolutionary process has aided to expand cooperative community practices via various means between the police and other lea’s. As part of this, transport and movement are viewed as an essential element to be discussed and factored in. Finally, the paper considers the, arguably, devolutionary position of the UK and the implications – post 2020, in terms of marking a ‘potentially’ regressive position, one that stands to compromise safety and security.
{"title":"Evolution: Police Cooperation in the EU","authors":"S. Fox","doi":"10.1163/22134514-bja10020","DOIUrl":"https://doi.org/10.1163/22134514-bja10020","url":null,"abstract":"\u0000Cooperation is key to policing and keeping mankind safe and secure; this includes protecting citizens from various crimes, including terrorist attacks. However, it is not an easy feat to always achieve – as is explained within this paper. The related research considers the complexities and challenges of sharing and coordinating across divides – or, in other words, cooperating across borders (be they open or closed). Specifically, it discusses the advancements made between one bloc of countries – the European Union; and, how the evolutionary process has aided to expand cooperative community practices via various means between the police and other lea’s. As part of this, transport and movement are viewed as an essential element to be discussed and factored in. Finally, the paper considers the, arguably, devolutionary position of the UK and the implications – post 2020, in terms of marking a ‘potentially’ regressive position, one that stands to compromise safety and security.","PeriodicalId":37233,"journal":{"name":"European Journal of Comparative Law and Governance","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2021-05-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45481883","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 : 2021-03-15DOI: 10.1163/22134514-BJA10010
K. Mak, E. Rogge
This paper studies (i) the effects of external directors and managerial ownership, and (ii) the effects of shareholder monitoring, on risk-taking at banks. The former is part of the internal control mechanisms, the latter of external control. It also examines the difference between control mechanisms in the UK and in Japan. It shows that shareholder supremacy is likely to weaken corporate governance at banks. In particular, it finds that: (i) the substituted effects between internal and external controls differ between countries, or that the substituted effects of governance mechanisms may not exist; (ii) an internal corporate governance approach to shareholder supremacy increases risk-taking at banks; and (iii) foreign shareholders are likely to increase risk-taking at banks.
{"title":"Comparative Studies between UK-Listed and Japan-Listed Banks","authors":"K. Mak, E. Rogge","doi":"10.1163/22134514-BJA10010","DOIUrl":"https://doi.org/10.1163/22134514-BJA10010","url":null,"abstract":"\u0000This paper studies (i) the effects of external directors and managerial ownership, and (ii) the effects of shareholder monitoring, on risk-taking at banks. The former is part of the internal control mechanisms, the latter of external control. It also examines the difference between control mechanisms in the UK and in Japan. It shows that shareholder supremacy is likely to weaken corporate governance at banks. In particular, it finds that: (i) the substituted effects between internal and external controls differ between countries, or that the substituted effects of governance mechanisms may not exist; (ii) an internal corporate governance approach to shareholder supremacy increases risk-taking at banks; and (iii) foreign shareholders are likely to increase risk-taking at banks.","PeriodicalId":37233,"journal":{"name":"European Journal of Comparative Law and Governance","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2021-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48134101","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 : 2021-02-03DOI: 10.1163/22134514-BJA10013
A. Vandenberghe, M. Kovač
By using the tools of comparative law & economics, this article aims to shed a light on the development of precontractual liability. Precontractual liability sensu stricto is about the question to what extent one can be held liable for cost incurred by the other party preliminary to, or during precontractual negotiations, when negotiations fail. Comparative legal analysis has observed that the requirements for establishing a successful claim for precontractual liability are very similar at common law and at civil law despite the very different starting positions from which each legal system’s rules have developed. By finding correspondence between what comparative law has found and what is expected under an efficient legal system, this study provides empirical evidence for the efficiency hypothesis of law.
{"title":"Illuminating the Development of Precontractual Liability","authors":"A. Vandenberghe, M. Kovač","doi":"10.1163/22134514-BJA10013","DOIUrl":"https://doi.org/10.1163/22134514-BJA10013","url":null,"abstract":"\u0000By using the tools of comparative law & economics, this article aims to shed a light on the development of precontractual liability. Precontractual liability sensu stricto is about the question to what extent one can be held liable for cost incurred by the other party preliminary to, or during precontractual negotiations, when negotiations fail. Comparative legal analysis has observed that the requirements for establishing a successful claim for precontractual liability are very similar at common law and at civil law despite the very different starting positions from which each legal system’s rules have developed. By finding correspondence between what comparative law has found and what is expected under an efficient legal system, this study provides empirical evidence for the efficiency hypothesis of law.","PeriodicalId":37233,"journal":{"name":"European Journal of Comparative Law and Governance","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2021-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45968712","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 : 2020-12-05DOI: 10.1163/22134514-00704004
S. Erp
From the era of codification, where the law was thought to be ‘just’ a code, to today’s hybrid world where (computer) code seems to become law – at least in the eyes of those who seem to have an interesting misconception about what ‘law’ actually means or should mean – it is about two centuries time difference. The change in approach, however, took less than 20 years. It leaves the law, law makers and lawyers looking at the backlights of the technology train, waiting on a platform that together with the railway station itself is already in a state of demolition. We look at the reality around us no longer as we did before with our senses, but we look at a screen in front of us and assume that reality is only there. If what we see around us is different from what we see on the screen Hegel’s famous phrase is applied “Umso schlimmer für die Tatsachen” (too bad for the facts). In today’s language what we see on the screen are then the supposedly more correct ‘alternative facts’. Fortunately, it is now more and more beginning to be realised not only by law makers, but also by the general public that the law has an impact on human relationships that stretches far beyond what computer code makes us believe. Sometimes one might get the impression that, for example, profiling of persons as if they are nothing more than their amalgamated data, under the condition, of course, that the data are properly analysed by Artificial Intelligence (with capitals ai), is the new image of human beings. It is, therefore, to be fully supported that the forthcoming Portuguese eu Presidency will promote the acceptance of a ‘Fundamental Digital Rights Charter’, stressing the importance of human intervention also in computer code driven systems and decision making processes.1 Fundamental human rights are the outer shell of the rule of
{"title":"Data Regulation: A Race to…?","authors":"S. Erp","doi":"10.1163/22134514-00704004","DOIUrl":"https://doi.org/10.1163/22134514-00704004","url":null,"abstract":"From the era of codification, where the law was thought to be ‘just’ a code, to today’s hybrid world where (computer) code seems to become law – at least in the eyes of those who seem to have an interesting misconception about what ‘law’ actually means or should mean – it is about two centuries time difference. The change in approach, however, took less than 20 years. It leaves the law, law makers and lawyers looking at the backlights of the technology train, waiting on a platform that together with the railway station itself is already in a state of demolition. We look at the reality around us no longer as we did before with our senses, but we look at a screen in front of us and assume that reality is only there. If what we see around us is different from what we see on the screen Hegel’s famous phrase is applied “Umso schlimmer für die Tatsachen” (too bad for the facts). In today’s language what we see on the screen are then the supposedly more correct ‘alternative facts’. Fortunately, it is now more and more beginning to be realised not only by law makers, but also by the general public that the law has an impact on human relationships that stretches far beyond what computer code makes us believe. Sometimes one might get the impression that, for example, profiling of persons as if they are nothing more than their amalgamated data, under the condition, of course, that the data are properly analysed by Artificial Intelligence (with capitals ai), is the new image of human beings. It is, therefore, to be fully supported that the forthcoming Portuguese eu Presidency will promote the acceptance of a ‘Fundamental Digital Rights Charter’, stressing the importance of human intervention also in computer code driven systems and decision making processes.1 Fundamental human rights are the outer shell of the rule of","PeriodicalId":37233,"journal":{"name":"European Journal of Comparative Law and Governance","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2020-12-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43831376","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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