Published by De Gruyter

Volume 19 Issue 1 -

April 2019

Issue of Global Jurist

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Contents
Journal Overview

January 3, 2018

A Democratic Expertise? Public Participation in Science-based Decision-making

Dario Bevilacqua

Article number: 20170033

Abstract

The article focuses on the importance of technical and scientific assessments in present public regulation, notably in extra-national governance. The necessity to rely on experts’ opinions in order to neutralize decisions, so to avoid arbitrariness and harmonize policies, is both crucial and increasingly predominant. Nonetheless, such evaluations are not always neutral, sound or independent. This may produce arbitrary decisions for regulatory measures that need to be at least impartial. Instead of proposing to shift the decision-making on behalf of discretionary or political regulators, the article insists on the idea of improving the moment of scientific assessment. The tool to increase the reliability of science-based opinions without compromising scientific neutrality is to realize a knowledge-based participation, only open to qualified interveners. The latter should be experts belonging to no-profit private associations pursuing public interests, with the aim to open up the discussion in uncertain fields of scientific investigation. This would make science democratic, but aims to legitimize its opinions – by adding democratic devices to scientific assessment – when they are not objective and have a regulatory effect, assuming that experts are exercising an (indirect) role of public regulators. The implementation of a mechanism of public participation in scientific assessments – limited to a selected representation of stakeholders qualified for their competence, knowledge and preparation – would enhance a scientific debate that would make scientific assessments plural without conditioning them to public opinion. Such a model could have advantages and some drawbacks, although the latter could be overcome with the application of an effective and efficient legal discipline covering the entire procedure.

February 7, 2018

Reflecting on criminalizing male violence against women under human rights and human security discourses: a feminist legal and policy analysis

Claudia Pividori, Paola Degani

Article number: 20170028

Abstract

Violence against women is an established issue of concern under international law as well as in the international security domain. More in general, it is contended that issues related to gender-based violence need to be countered with strategies aimed at fighting sexual hierarchies and structural discrimination affecting women at different levels and in different contexts. Despite this, international legal and policy responses to male violence against women are increasingly turning to criminal law enforcement with a strict focus on perpetrators’ individual accountability. The article critically analyzes this trend within the two international legal and policy frameworks that in the past decades have most consistently integrated the issue of violence against women, that is, human security and human rights. The article contends that the increasing focus on criminalization that has emerged in both these frameworks risks obfuscating and downsizing the collective and “public” dimension of States’ responsibility with regards the social phenomenon of violence. Indeed, criminalization strategies allow States to circumvent their duty to work on the social, political and economic structural dimensions at the root of this severe form of violation women’s human rights.

March 14, 2018

EU Company Law: Past, Present and … Future?

Carlos Gorriz

Article number: 20170029

Abstract

As 2018 marks the 50th anniversary of the approval of the first Directive on EU Company Law, it is a good time to review its past and present in order to assess whether its foreseeable future meets the needs of European enterprises. The study of the evolution of EU Company Law demonstrates that its evolution has been discontinuous. It started with a lot of ambition, but suffered a crisis that conditioned its future development: regulated issues were considerably restricted, legal instruments were extended and legislative technique was modified, essentially to circumvent the reservations of the Member States. It could seem that these changes are working, because the Action Plan 2012 is starting to bear fruits. Three legal rules have been approved and several projects are underway. Nonetheless, there are reasons to doubt whether EU Company Law is meeting its objectives: the impact of the new legal rules is minimal, the future of the project is uncertain and, although the bureaucratic burdens have been reduced, there are various needs of European firms, especially those of SMEs, that have not been yet satisfied.

July 10, 2018

Deadlock and Denial: Domestic Challenges and the Institutionalization Human Rights in ASEAN

Irene Hadiprayitno

Article number: 20180001

Abstract

In the last decade, ASEAN has made substantial steps towards adopting human rights, by creating the ASEAN Intergovernmental Commission on Human Rights (AICHR) in 2009 and adopting the ASEAN Human Rights Declaration in 2012. However, these developments do not lead to the establishment of an ASEAN Human Rights Mechanism. The article aims to investigate the deadlock in ASEAN by examining to what extent that relates to institutional challenges i. e. legal and political structures consist of existing norms, persistent discourses pertaining to human rights, at regional and national levels.

July 11, 2018

Legal Mentality and Its Influence in Shaping Legal Rules: the Relationship between Principal and Agent

Rossella Esther Cerchia

Article number: 20180028

Abstract

It is assumed that comparative legal studies, through its deep and historical analysis of law and its dissociation in legal formants, have contributed to understanding the importance of the different factors that shape legal rules. In this article, emphasis is given to a factor that is sometimes neglected in legal narrations: legal mentality or, more simply, the inherent logical way of thinking and its influence in shaping legal rules. The area of investigation is the legal relationship between principal and agent. It is a narration that selects a specific “fil rouge” to link different “pieces” throughout European history to compose a mosaic of different factors that may have contributed to developing a certain legal mentality in this area of law. The legal mentality is nothing more than the product of the extra-legal contexts in which principal and agent operate. In reference to the extra-legal context, it means the importance, above all, of the situations of proximity between the two parties: proximity that could be “spacial” ( i.e. , they are part of the same small community), or “relational” governed by extra-legal forms of belonging to the same group, for instance families (broader or narrower ones) or clans. This narration starts with a glance at the ancient agreement of mandatum and its roots in the Roman idea of “friendship” and personal bond. Then it continues by touching on a source of the medieval companies: the family bond, one of the stronger and more trustworthy relationships at the time. It will be shown that some aspects of that relationship are not dissimilar from the ones later formed by the case law of the English Chancery Court in the field of the law of agency. This could be seen as a result of the legacy of the stratification of a certain legal mentality shaped by a context that was created by extralegal relationships. Nowadays the modern fading of the personal bond between principal and agent has highlighted an important evolution: there was proximity then depersonalization: this is reflected in the evolution of legal rules, for instance, in French, Italian and English national law. Finally, the case of the “real” or “absolute” irrevocability of the authority shows that the agency relationship, constructed in a breeding ground characterized by trust and utilized to protect the principal's interest (or even the principal's interest), could become - through related or linked contracts - an instrument of more complex agreements. In these cases, the interest of the agent or third parties (such as creditors, contractual counterparts or “beneficiaries” in the broad sense) could lead those transactions far from the original idea of mandat or mandato or agency. In those situations, the “causa” of the agency (to use a concept dear to civil law tradition) changes and its roots in personal bond and the principal's interest loses its strength as it is mirrored, once again, in the legal rules.

August 17, 2018

Strengthening Trust in Israeli Financial Market: The Case of the Demutualisation of the Tel Aviv Stock Exchange

Leon Yehuda Anidjar

Article number: 20180032

Abstract

The Israeli stock market is in turmoil. In recent years, the Israel Securities Authority has initiated significant legislative changes intended to tighten the regulation applying to public companies in Israel. These legislative changes drew their inspiration from Anglo-American law. However, it became apparent that these changes significantly impeded the operations of public companies in Israel, leading to the deletion of such companies from trading and their registration in countries with more lenient regulation. The fall in the scope of trading on the Tel Aviv Stock Exchange led to mutual recriminations between the chairperson of the Israel Securities Authority and the chairperson of the Tel Aviv Stock Exchange concerning the reasons for the current situation. The steep decline in the scope of trading on the Tel Aviv Stock Exchange exposed a crisis of trust in Israeli financial markets. I shall argue that to encourage trust in Israeli financial market, we should adopt a general reform regarding the implementation of internal corporate governance mechanisms in the working process of the Israel Securities Authority and Tel Aviv Stock Exchange. In this framework, I will discuss the implication of several insights derived from the Organizational Management theory on special processes which could enhance cooperation between financial authorities and self-regulatory organizations in Israel. I believe that adopting those processes in Israel may contribute significantly to improving trust in the local financial markets.

August 23, 2018

Belligerent Occupation and ITS Discontents: On the Relationship between International Human Rights Law and Belligerent Occupation’s Law

Stefano Silingardi

Article number: 20180033

Abstract

Too many normative instances, that were originally external to the belligerent occupation’s regulatory framework have settled, over the last decades, into that body of law. I refer, for instance, to the Occupying Powers’ demand to intervene significantly in the economic, political and social life of the occupied territory in the light of the need to conduct populations subject to undemocratic regimes, or in very backward economic conditions, on the road to democracy and economic development; or to the expectations that the Occupying Powers fully implement some core human rights obligations incumbent upon them. However, because of the lack of useful information in the current legal framework of international humanitarian law about the scopes that should legitimately lead the activities of the Occupying Powers, these claims threatens to deprive of legal effect the statement that occupation would not implement any transfer of sovereignty to the occupant (the so called ‘sovereign-based’ approach laid down by Articles 42 and 43 of the Hague IV Regulations). After a brief explanation of the doctrinal foundations of belligerent occupation’s law in the broader picture of the more recent practice of Israel in the occupied Palestinian territories (with specific reference to the 2017 Law for the Regulation of Settlement in Judea and Samaria), the Article will focus on the analysis of the relationship between international human rights law (IHRL) and belligerent occupation’s law – in particular by stressing the risks that could arise when an Occupying Power decides to act in order to implement the right to self-determination of the occupied population. The aim is to investigate not only, form a de lege lata perspective, how the more recent practice of Occupying Powers has been influenced by IHRL but also, from a de lege ferenda perspective, to which extent (if any) human rights norms would contribute to fill the gaps and loopholes of the existing regulatory framework on belligerent occupation.

About this journal

Objective
Global Jurist offers a forum for scholarly cyber-debate on issues of comparative law, law and economics, international law, law and society, and legal anthropology. Edited by an international board of leading comparative law scholars from all the continents, Global Jurist is mindful of globalization and respectful of cultural differences. We will develop a truly international community of legal scholars where linguistic and cultural barriers are overcome and legal issues are finally discussed outside of the narrow limits imposed by positivism, parochialism, ethnocentrism, imperialism and chauvinism in the law. Submission is welcome from all over the world and particularly encouraged from the Global South.

Topics
Global Jurist publishes articles on issues of:

comparative law
law and economics
international law
law and society
legal anthropology
law and humanities

Article formats
Editorials, Forewords, Research articles

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