Search

This paper deals with the question how, if at all, international law influences, or has the potential to influence, national laws on co-parenting, and whether it prescribes, supports or obstructs co-parenting. This question is answered by discussing the relevant provisions of international and European instruments, such as the CRC, the ECHR, the EU Charter and the CEFL Principles, by comparing the different types of instruments with each other; and by highlighting the emerging trends.

By surveying binding law in civil and common law jurisdictions and non-binding law produced by national, regional and international organizations, this article tries to map the international state of affairs with respect to child relocation. Various legal topics that have concerned legislatures are discussed. It appears that - worldwide and more specifically within Europe - great variety exists with respect to child relocation law, which leads to legal uncertainty. As a consequence, parents often do not know how to act in case of child relocation. This might have a negative effect on other issues, such as child abduction. Harmonization of law on child relocation seems necessary to diminish the existing legal uncertainty. It is concluded that the development of a European or international non-binding law instrument that addresses both national and international relocation cases could be a first step in the harmonization process.

In Sturgeon, the European Court of Justice considered that EC Regulation 261/2004 on Air Passenger Rights breaches the principle of equal treatment. It held that air passengers with a delay of three hours or more have a right to compensation, unless the airline can prove that the delay was caused by extraordinary circumstances. After a brief look into how airlines generally perform with regards to their obligations under Regulation 261/2004 (section 1), I will summarize the Sturgeon decision as it was handed down by the European Court (section 2), set out the airlines' response to Sturgeon, which amounts to a boycott of the European Court's decision (section 3), analyse the questions referred to the European Court by the High Court in London in which the airlines challenge the validity of Sturgeon (section 4), and briefly comment on questions referred by the German Federal Court on the application of Sturgeon (section 5). My conclusion (section 6) will be that the European Court cannot but confirm Sturgeon, because the decision is compatible with both the Montreal Convention and the Grand Chamber decision in International Air Transport Association (IATA). This conclusion is in line with the opinion I published in January 2010. This article may be misunderstood as presenting a consumer view on Air Passenger Rights. However, it only aims to predict, from an independent perspective, what the European Court will decide in the pending cases with respect to Sturgeon.

National law is increasingly influenced by European developments in a process characterized by the term 'Europeanization'. This contribution illustrates the magnitude by which this process of Europeanization continues to shape national contract law in the Member States. In particular, the focus is placed on the dynamic and interwoven interaction of legal scholars, legislators and the courts, on both a national and European level and hence they collectively form the driving force behind the process of Europeanization. The author demonstrates that employing a solely national approach is no longer a sustainable preference in the emerging European legal landscape. For this reason, the author calls for all stakeholders to partake in further debate concerning the future of contract law in the Member States.

In analysing 'wrongful life' cases, comparative law is used extensively. This article examines these wrongful life cases, especially in light of the contradicting outcomes in different jurisdictions across the world, with the Dutch Kelly case and the South African decision in Stewart v Botha as its main examples. I will test the hypothesis that it is not so much the outcomes and (more importantly) the arguments found elsewhere through the comparative law method that are decisive in highly debated cases like those concerning wrongful life, but that instead it is something else that decides the issue, something I would define as the cultural background of, or the legal policies within a tort law system.

This contribution deals with the (importance of the) burden of proof, especially in tort cases, and its relationship with procedural law in general, i.e. other devices within procedural law, most notably evidence law. To be more precise: I will analyse the burden of proof in European tort law systems against the background of the use of other procedural devices that might be of importance for the substantive law outcome of specific (liability) cases. Meant are of course such devices as presumptions (be it in the form of “Anscheinsbeweis”, “res ipsa loquitur” or otherwise) or the standard of proof (“Beweismas”), but also procedural duties to supply information, and the like. To phrase my topic in more general terms: what is to be analysed here is the relationship between all these various (procedural) devices, including the burden of proof, when it comes to tort cases.

Interdisciplinary legal research, in which non-legal data are combined with legal data, is a fairly new branch of legal scholarship in the Netherlands. Although it improves the possibilities to measure the effectiveness of legal instruments, it also raises numerous methodological questions, such as a lack of matching empirical data and the translation of legal concepts in socio-empirical terms. Both the pros and cons of the interdisciplinary research method will be addressed and illustrated on the basis of family law research which incorporates socio-empirical data. There are, however, no simple solutions to the pitfalls, but to create awareness of the potential problems may contribute to a better research design and, in the end, to better results.

Although it is not one of its main features, the Principles of European Tort Law (PETL) have devoted some attention to the rules regarding the burden of proof in tort cases, especially to the possibility of a reversal of that burden. Since such a reversal of the burden of proof will be highly relevant for the substantive outcome of a tort case, one needs to be able to justify such a reversal on normative grounds. However, that justification is not always advanced clearly enough in the PETL. At the same time the PETL focus largely on the possible exceptions to the general rule on the burden of proof. As a result, the underlying general rule as such has not been codified. This paper analyses the burden of proof rules in the PETL not only from a more technical point of view, but also from the perspective of the possible influence they might have on the substantive outcome of tort cases. To highlight their content, importance and possible inspirational force for a future ‘European tort law’, these Principles are contrasted with their counterparts under Dutch tort law. The aim is to answer the question whether the choices made in the PETL are justifiable and whether the Dutch tort system can – or maybe even should – seek inspiration from these Principles.

Purpose This paper aims to draw attention to an urgent need for reform of the regulatory framework of the broader export credit system to ensure a new and comprehensive “safe haven” for officially supported export credits. The purpose is to analyse the complex debate on disciplines of the World Trade Organization (WTO) and the Organisation for Economic Co-operation and Development (OECD), creating a point of reference for future analysis of and debates around the “carve-out clause” of the Agreement on Subsidies and Countervailing Measures (ASCM) and a “safe haven” in a broader sense. Design/methodology/approach This paper takes inspiration from legal, economic and political science literature on subsidies and officially supported export credits, as well as on legal documents related to the WTO and the OECD. It examines the WTO subsidy and the OECD export credits framework, focusing on main legal and economic governance aspects. Then, it gives a critical analysis how “safe” a “safe haven” in a broader sense might be, assessing frictions of and solutions for the fundamentally different set of disciplines, limitations, financial instruments not covered by OECD regulations, as well as new challenges related to climate finance. Findings After assessing the challenges regarding the “carve-out clause” of the WTO subsidy framework and two tracks aiming to create a new “safe haven”, requirements for comprehensive disciplines for officially supported export credits are pointed out. Furthermore, several misunderstandings and mistakes appearing in the debate are clarified. Research limitations/implications Desktop research rather than empirical field work. Practical implications This paper creates awareness for governments and exporters how to deal with a complex system of interrelated disciplines. The question, how “safe” a “safe haven” in a broader sense can be, has not been resolved yet. Some authors focus on the WTO disciplines not taking into account the need for an effective matching procedure of the Arrangement on Officially Supported Export Credits (the Arrangement). Furthermore, the introduction of several new pre-export financing programmes and the growing significance of climate finance-related instruments for export credit agencies creates both opportunities and challenges. This paper can serve as a reference point for the academic debate and further research. This paper also offers newcomers to the topic a comprehensive overview. Originality/value Although the “carve-out clause” and the Arrangement have been much discussed, there is limited literature review structuring both existing and new aspects of the debate, assessing (dis)advantages of arguments and interpretations. This paper both adds to the corpus of literature about the ASCM, as well as the Arrangement, and takes this corpus as the object of its analysis.

Models of individual accountability for algorithms' actions fail when a human-algorithm association comes to be viewed as a collective actor. In some situations, human and algorithmic actions are so closely intertwined that there is no longer a linear connection between the emergent collectivity and the complex interactions of humans and algorithms. In such collective decision-making sequences, individual accountability can no longer be attributed. Therefore, a new perspective on human-algorithm associations that captures their emergent properties and organizational qualities is needed to develop appropriate models of collective accountability. This article seeks to answer a number of questions. How can the encounter between humans and algorithms within such a socio-technical configuration be adequately theorized? Can the configuration itself be understood as a hybrid collectivity? Can actions be attributed to the configuration as a personified collective actor? How will accountability be institutionalized for human-algorithm associations - in centralized or distributed collective forms?

Private actors as non-institutional, and therefore often overlooked, participants in EU legal processes – A specific focus on their role as private regulators – Private actors such as companies, contracting parties and industry associations, play a pivotal regulatory role in the EU legal order – Classifying the existing legal research on private regulation – A legal-doctrinal approach towards private regulation also needed – Theoretical background of a novel legal-doctrinal perspective on private actors – Addressing the most pressing practical methodological challenges – Specific focus on the problem of accessibility and the difficulty of understanding and interpreting private regulation doctrinally

Officially supported export credits matter greatly for private contracts: they provide the possibility of large export transactions and contracts which would otherwise not take place. It is therefore important to know how these instruments are regulated on an international level. The international regulation for public European export finance has three levels: rules set by the WTO to curb export subsidies, the Arrangement on Officially Supported Export Credits (which is a gentlemen’s agreement) and the EU state aid framework. Whilst the WTO framework has an official carve-out for the Arrangement, the EU state aid regime does not. Post-Covid, this article looks at the way to proceed with regulating official export credits, and how the different levels of regulation should be applied (and when), concluding that the Arrangement should be the core text of international regulation on export credits.

The European Certificate of Succession is an obligatory form that may be used in cross-border succession cases. The form standardizes the information to be provided to interested parties. Could this standardization be further developed through digitalization, as standardization and digitalization are as closely connected as standardization and the use of forms? Could an e-copy of the certificate, issued by a smart contract running on a blockchain, be stored in the e-wallet which every European citizen might have in the near future, allowing the digital presentation of the copy to, for example, a bank or a land registry, securing Self-Sovereign Identity?

Summary This article focuses on the references (allegations) made by the lawyers in a selected number of cases to Roman and customary law as well as to court decisions when arguing their case. The analysis focuses on three similar civil litigation records from the Court of Friesland from 1716, 1718 and 1720. Network analysis was used to examine whether certain sources were more dominant (i.e. more central) in the network than others and to explore the relationship between the references. The lawyers in the three cases from the Court of Friesland appear to have used some references in common when arguing whether security rights (i.e. mortgages) included a right of pursuit and whether the auctioneer could recover the object if the buyer failed to pay.

This article finds that private and criminal law standards differ greatly – both in terms of evidence and in terms of applicable substantive norms. On the basis of an assessment of the interaction between criminal and private law standards under Dutch arbitration law, it submits that in the private law assessment of allegations of illegality, evidentiary and substantive criminal law standards should play a more prominent part. To this end, it considers arguments of system coherence, legal policy and the rule of law. international arbitration, illegality, corruption, fraud, evidence, public policy

DarkNet markets (DNMs) are flourishing, exploiting cryptocurrencies' pseudo-anonymity feature. To fight the illegal drug trade, it is necessary to understand the factors influencing choices made by DNM consumers. ClearNet forums facilitate interactions among new and experienced DarkNet users, thus serving as an ideal source for investigation and research. The methodology of temporal topic models and sentiment analysis were applied to the ClearNet forum data to explore DNM new drug users’ behavior over time. We inspected the development of major topics from the forum over eight years (2012–19) period to study the evolution in motivations and challenges faced by DNM users. The extracted temporal topic models successfully captured the apparent dynamics of critical events in the crypto world, showing the shift from Bitcoin to Monero. Our analysis demonstrates that the Bitcoin traceability announcement (made public in 2015) did not have a deterrent effect on the usage of Bitcoin, and this declaration instead acted as an advertisement for DNMs. Drug buyers used Bitcoin despite its traceability until Monero became untraceable in 2017 due to its privacy update.

Computer-based communication (CBC) has become an inevitable aspect of our communication infrastructure and a lasting alternative to face-to-face conversations. Yet, CBC (e.g. video conferencing) is not common practice for victim-offender mediation (VOM). Based on eighteen semi-structured interviews with adult victims, offenders and mediators, we provide a heuristic assessment of CBC applicability in VOM. Interviewees associated CBC with higher environmental safety compared to face-to-face mediation, and with richer emotional information compared to indirect VOM (e.g., letter exchange). Risks comprised technical and privacy concerns. Our findings provide insight into stakeholder perceptions of the usability of CBC-VOM and thus directions for effective employment.

Jurisdictions around the world are adjusting their insolvency laws with the aim to offer debtors in financial difficulties instruments that enable them to bring the company to a healthy state as soon as the problems arise. The rationale is that viable companies should have access to procedures that permit them to continue business, in whole or in part, by changing their capital structure as well as carrying out operational changes. Directors’ duties to creditors form a regular part of the laws concerning insolvency and therefore, a change in the insolvency laws will, arguably, have consequences for directors’ duties. In this paper, the impact of new preventive restructuring tools in the Netherlands and the UK on directors’ duties is discussed.

In recent years, a platform economy has emerged that is dominated by undertakings such as Google, Amazon, Facebook, Apple, and Microsoft. They have established a form of private governance vis-à-vis their consumers and customers by means of standard terms that create a risk of exploitation. This trend clashes with the internal market effort of the EU that is predicated on consumer rights and fair competition to address market failures such as market power, information asymmetry, and asymmetrical contractual dependency. In this article we examine how the resulting tensions can be addressed by means of EU competition and contract law. This is based on enforcing fairness by requiring (1) the implementation of proportionality—balancing interests—and (2) respect of the duty of care, in the sense of compliance by design. Jointly this can be seen as an expression of accountability that needs to be made explicit. Apart from pre-existing case law and legislation, we take into account the December 2020 Commission proposals for platform regulation, as well as behavioural insights into consumer behaviour.

This article investigates how various private international law (PIL) instruments relevant in the European context, post-Brexit, deal with questions of jurisdiction, applicable substantive law, and recognition and enforcement pertaining to the contractual liability of arbitrators. Based on an analysis of applicable European Union (EU) case law and the drafting history of, amongst others, the Brussels I (Recast) Regulation and its predecessors, it submits that that the exclusions included in such Regulation with regard to arbitration proceedings do not apply to the Arbitration Contract between the Parties and the Arbitrator or Arbitrators. Second, we submit that the law applicable to a claim for breach of contract by an Arbitrator must be found through the application of Rome I. Rome I provides that the law of the country where the Arbitrator that is alleged to be liable vis-à-vis (one of) the Parties has his or her habitual residence. With respect to enforceability of court judgments pertaining to arbitrator liability, we discuss and assess the Pandora’s Box that Brexit appears to have opened. This assessment leads us to conclude that, whilst the framework put in place by Brussels I (Recast) and the Lugano Convention remains largely in place, on the departure of the United Kingdom from the existing legal frameworks, enforcement and recognition of court judgments between the United Kingdom and the EU will, in the absence of a jurisdiction clause, largely shift to provisions of national law and/or bilateral treaties. Arbitration, International Arbitration, Brussels I (Recast), Rome I, Hague Convention, Lugano Convention, Brexit, Private International Law, Arbitrator, Liability

Originally, private law was considered to be immune from the effect of fundamental rights, the function of which was limited to being individual defences against the vigilant eye of the state. This traditional view, however, has recently been put under pressure as a result of fundamental rights increasingly becoming relevant for private law. The relationships between private parties under private law have started losing their immunity from the effect of fundamental rights. The major question at present is no longer whether fundamental rights may have an impact on private law, but to what extent this will occur, and the answer to this question will determine the future of private law. The primary aim of this article is to establish how fundamental rights and private law (may) relate to each other at present in different legal systems. In light of this, the article considers how fundamental rights (may) affect the relationships between private parties under private law and what consequences this effect has for the relationship between fundamental rights and private law.

Quantitative recidivism risk assessment can be used at the pretrial detention, trial, sentencing, and / or parole stage in the justice system. It has been criticized for what is measured, whether the predictions are more accurate than those made by humans, whether it creates or increases inequality and discrimination, and whether it compromises or violates other aspects of fairness. This criticism becomes even more topical with the arrival of the Artificial Intelligence (AI) Act. This article identifies and applies the relevant rules of the proposed AI Act in relation to quantitative recidivism risk assessment. It does so by focusing on the proposed rules for the quality of the data and the models used, on biases, and on the human oversight. It is concluded that legislation may consider requiring providers of high-risk AI systems to demonstrate that their solution performs significantly better than risk assessments based on simple models, and better than human assessment. Furthermore, there is no single answer to evaluate the performance of quantitative recidivism risk assessment tools that are or may be deployed in practice. Finally, three approaches of human oversight are discussed to correct for the negative effects of quantitative risk assessment: the optional, benchmark, and feedback approach.

La question de la réglementation des responsabilités de l’entreprise en matière de respect des droits de l’homme et de l’environnement figure, quel que soit l’endroit où elle est discutée, en bonne place de l’agenda politique. Les États membres de l’Union européenne sont à l’avant-garde de ce développement. Le présent article offre une vue d’ensemble non seulement des différentes tentatives de réglementation, mais surtout de l’ensemble des questions juridiques qui se posent dans une perspective globale. Les auteurs soutiennent que la réglementation des chaînes de valeur mondiales nécessite de prendre en compte les différents domaines juridiques – droit des sociétés, pratiques commerciales, clauses abusives, vente aux consommateurs, responsabilités contractuelle et délictuelle – et de développer des solutions intégrées qui dépassent la pensée généralement fractionnée en branches du droit.

The field of computational law has increasingly moved into the focus of the scientific community, with recent research analysing its issues and risks. In this article, we seek to draw a structured and comprehensive list of societal issues that the deployment of automatically processable regulation could entail. We do this by systematically exploring attributes of the law that are being challenged through its encoding and by taking stock of what issues current projects in this field raise. This article adds to the current literature not only by providing a needed framework to structure arising issues of computational law but also by bridging the gap between theoretical literature and practical implementation. Key findings of this article are: (1) The primary benefit (efficiency vs. accessibility) sought after when encoding law matters with respect to the issues such an endeavor triggers; (2) Specific characteristics of a project—project type, degree of mediation by computers, and potential for divergence of interests—each impact the overall number of societal issues arising from the implementation of automatically processable regulation.

How insolvency courts handle conflicts is an important aspect of the Directive on preventive restructuring frameworks and it has become more important in the current COVID-19 crisis, as a result of which insolvencies are or will be on the rise. Insolvency courts are one of the key actors that can impact the length and costs of conflicts, and, consequently, the effectiveness and efficiency of insolvency proceedings. However, there is a lack of empirical research that examines when, why and how insolvency courts prevent actual or potential conflicts. This article reports the results of an empirical study that explored the strategies used by insolvency judges in the Netherlands to resolve conflicts and to prevent a dispute from becoming one. The results show that insolvency courts deploy “under the radar” mediation-like strategies to prevent actual and potential conflicts involving insolvency practitioners, enhancing the speed and cost-effectiveness of the winding-up of cases in the perceptions of stakeholders. Consequently, insolvency judges do not only act as adjudicators in court proceedings, but also take on mediation-like roles, at least in some jurisdictions. Limitations and challenges of these roles are discussed. The findings of this study are relevant for determining and regulating the roles and tasks of insolvency judges.

This paper addresses the specific challenges arising from the monetization of political speech on social media, and propose a normative argument to extend consumer disclosures to political speech. Political speech enjoys the highest degree of protection by national constitutions as well as supranational and international charters. Unlike commercial speech which usuallyenjoy less constitutional protection, political speech is the foundation of constitutional democracies. The blurring line between political and commercial speech introduces a new layer of complexity in tackling hidden political advertising. Indeed, political speech is likely to attract commercial speech inside a broader scope of protection with the result that potential limitations of this kind of speech would be required to pass a very strict test through the balance with other constitutional safeguards or legitimate interests according to the criteria of necessity, legitimacy and proportionality. This could also question the scope of other regulation designed to govern commercial speech like advertising. To this end, the paper compares regulatory and judicial interpretations adopted in Europe and the United States, and is structured as follows. In the first part, we explore the content monetization business models (including influencer marketing) used on social media, and we identify three types of influencer ‘personas’ who are prone to engage in political speech. The second part looks into the constitutional differences between commercial and political speech across the Atlantic. The third part provides the normative argument at the intersection between consumer law and freedom of expression, and the fourth part concludes.

Sustainability leads to the construction of more wind turbines on land. This installation is governed by rules of public law. Local residents living in the vicinity of wind turbines fear for their health and for the loss of value of their homes. This contribution examines whether and to what extent Dutch liability law offers the possibility to local residents to receive compensation for this damage. The Principles of European Tort Law are also addressed.

Conference on Roman Law, Palermo

Dissatisfaction with the administration of justice is as old as law proclaimed the distinguished American legal scholar Roscoe Pound in 1906. The system of administration of justice has been under considerable scrutiny in Cyprus following the excessive delays in resolving disputes that are highlighted in reports such as the European Union’s Justice Scoreboard, the World Bank’s Doing Business Reports as well as European Commission papers on Cyprus, urging authorities to modernize the system in order to be able to meet the demands following the financial crisis. For this reason, various experts have been assigned with the task of identifying the problems and coming up with proposals and solutions. The discussions, though, are not new as similar problems have been presented in common law jurisdictions, in particular, but they have been tackled decades ago, with the adoption of reforms that moved the adversarial system of justice closer to civilian stereotypes.

The Egyptian Arbitration Law No. 27/1994 (the ‘Egyptian Arbitration Law’) was enacted without delineating the subject of arbitrability of administrative contracts. This was one of the hottest pre-existing debates preceding the promulgation of the Egyptian Arbitration Law, yet the latter has succinctly mentioned that arbitration is valid between public and private entities. The Legislature did not find such wording sufficient to settle this debate and decided in 1997 to introduce a specific amendment elaborating this issue. The 1997 amendment might have settled the arbitrability of administrative contracts debate, however, it initiated another debate when it required that arbitration agreements under administrative contracts be approved by the competent minister. Until now, there are some unsettled issues concerning this ministerial approval requirement. For instance, which party is liable to procure such ministerial approval: the administrative authority or its private counterparty? Could this ministerial approval be implied? For example, what if the competent minister has attended the contract signing ceremony, would that be enough? Another recurring question is whether such a ministerial approval pertains to public policy or not. This article tries to answer these questions in light of the recent decisions rendered by the Egyptian courts and arbitral tribunals. Ministerial Approval Requirement, Administrative Contracts, State Contracts, Egyptian Arbitration, Public Policy, Annulment of Arbitral Awards, Enforcement of Arbitral Awards, Implied Consent, ex officio, Egyptian State Council

This article aims to discuss the enforcement of foreign collective action and settlement judgments in Canada. More specifically, it investigates the enforceability of the decision by the Amsterdam Court of Appeal declaring binding a class settlement in the Ageas case. The development of the Netherlands into a prime venue for (cross-border) collective settlements – including with respect to claimants and defendants residing across the Atlantic – renders a discussion of the enforceability of court decisions pertaining to the collective settlement of disputes of interest from a Dutch, EU and extra-EU perspective.

Consumer protection directly influences the design of choice of law rules in the EU. Article 6 Rome I Regulation stipulates that the law of the consumer’s habitual place of residence applies, unless another law has been chosen. This choice may not deprive the consumer of certain rules of her “home law”, however. This likely requires a comparison of the involved laws, putting the foreseeability of the parties’ legal rights in jeopardy. Such comparison also raises issues for the public, as it decreases administrability (measured by the amount of work necessary to apply a conflict rule) and hence increases costs for the courts. Through comparative analysis between Article 6 Rome I and the latter’s different interpretations, this article investigates how consumer protection affects the administrability and foreseeability of choice of law rules. It is shown how simple changes to Article 6 Rome I could increase administrability and foreseeability for all involved stakeholders.

The international credit crisis of 2008–2013 changed the legal landscape of mortgage enforcement proceedings in Europe dramatically. The growing influence of the international right to housing, the increasing attention towards homeowner protection, the renewed policies towards mortgage financing and the changes in national legislation, make the study of these proceedings relevant and interesting. Moreover, the phase between default of the mortgage debtor and the actual start of these proceedings is becoming more and more relevant because of these developments. Nonetheless, this phase is quite underresearched, especially from a comparative legal research point of view. Our comparative study therefore takes a different approach than classical comparative studies on mortgage enforcement procedures. With this project, we investigate the approaches of mortgage lenders after the mortgage debtor is in default with his mortgage obligations. These approaches can be based on legislation, self-regulation or agreements with the mortgagor. The aim of this project is to discover how these regulations function in practice. This paper provides an introduction to this emerging legal comparative research project on, what we call, default resolution approaches in Europe. We explain the main interests involved in default resolution approaches and the dimensions that should be taken into account in our study. We then sketch our comparative framework for further research.

Summary During the Second World War Germany and German nationals looted the Netherlands and its nationals of many valuable assets, that were taken to Germany. Often the looting took the form of forced sales. In some cases, the sales price was too low, in other cases the German buyer paid market value or more, but often the buyer paid with guilders looted from the Dutch State. After the liberation of the Netherlands the ‘restoration of rights regime’ enabled victims of forced sales to seek annulment of the sales. This article concentrates on those movable goods that were sold to German buyers and that, after the war, returned from Germany to the Netherlands with the help of the Allied Forces, the so-called recuperation goods. If the seller did not seek annulment before the deadline of July 1951, for example because the price paid was considerable so that he preferred to keep the purchase price, or if his request was rejected, the Dutch State should not be forced to return these goods to their German buyer. Therefore, these goods were first subjected to Royal Decree E 133 which expropriated all German owned property in the Netherlands. Upon return to the Netherlands the recuperation goods became State property, but this measure could be undone by the seller successfully seeking annulment of the sales contract under Royal Decree E 100. However, if no annulment took place, the State remained owner of these goods.

The Directive on better enforcement and modernization of EU consumer protection rules or Omnibus-directive does not acknowledge the deterrence function of private enforcement of EU consumer law. The article demonstrates that the balancing of the principles of effectiveness, proportionality and dissuasiveness requires more attention when it comes to ‘civil remedies’. Indeed, the Court of Justice of the European Union (CJEU) has in recent years put a clear emphasis on the deterrence function of the nonbinding effect of unfair contract terms, a civil sanction imposed by civil courts. These courts, however, are struggling with the implications of this function. They are actively searching for direction by referring new preliminary questions to the CJEU. Empirical research conducted in the Netherlands shows that Dutch district courts largely recognize their role as enforcer of EU consumer law. It also reveals that these courts consider the proportionality and the dissuasiveness of the sanction to be at odds when the gap left after the removal of an unfair contract term is not filled with national law. European consumer law, sanctions, civil law, unfair contract terms, civil courts

This contribution explores the application of data science and artificial intelligence to legal research, more specifically an element that has not received much attention: the research infrastructure required to make such analysis possible. In recent years, EU law has become increasingly digitised and published in online databases such as EUR-Lex and HUDOC. However, the main barrier inhibiting legal scholars from analysing this information is lack of training in data analytics. Legal analytics software can mitigate this problem to an extent. However, current systems are dominated by the commercial sector. In addition, most systems focus on search of legal information but do not facilitate advanced visualisation and analytics. Finally, free to use systems that do provide such features are either too complex to use for general legal scholars, or are not rich enough in their analytics tools. In this paper, we motivate the case for building a software platform that addresses these limitations. Such software can provide a powerful platform for visualising and exploring connections and correlations in EU case law, helping to unravel the “DNA” behind EU legal systems. It will also serve to train researchers and students in schools and universities to analyse legal information using state-of-the-art methods in data science, without requiring technical proficiency in the underlying methods. We also suggest that the software should be powered by a data infrastructure and management paradigm following the seminal FAIR (Findable, Accessible, Interoperable and Reusable) principles.

Two English and two Dutch cases have recently clarified the (potential) liability of parent companies vis-à-vis third parties in relation to damage caused by their subsidiaries. They concern the decisions of the UK Supreme Court in Vedanta v Lungowe and Okpabi v Shell, the Hague Court of Appeal in Oguru v Shell and the Hague District Court in Milieudefensie v Shell (climate change case).

On 16 December 2020, the European Commission delivered on the plans proposed in the European Digital Strategy by publishing two proposals related to the governance of digital services in the European Union: the Digital Services Act (DSA) and the Digital Markets Act (DMA). The much-awaited regulatory reform is often mentioned in the context of content moderation and freedom of expression, market power and competition. It is, however, important to bear in mind the contractual nature of the relationship between users and platforms and the additional contracts concluded on the platform between the users, in particular traders and consumers. Moreover, the monetisation offered by digital platforms has led to new dynamics and economic interests. This paper explores the reform proposed by the European Commission by means of the DSA by touching upon four main themes that will be addressed from the perspective of consumer protection: (1) the internal coherence of European Union law; (2) intermediary liability; (3) the outsourcing of solutions to private parties; and (4) digital enforcement.

Intelligent machines surprise us with unexpected behaviors, giving rise to the question of whether such machines exhibit autonomous judgment. With judgment comes (the allocation of) responsibility. While it can be dangerous or misplaced to shift responsibility from humans to intelligent machines, current frameworks to think about responsible and transparent distribution of responsibility between all involved stakeholders are lacking. A more granular understanding of the autonomy exhibited by intelligent machines is needed to promote a more nuanced public discussion and allow laypersons as well as legal experts to think about, categorize, and differentiate among the capacities of artificial agents when distributing responsibility. To tackle this issue, we propose criteria that would support people in assessing the Machine Capacity of Judgment (MCOJ) of artificial agents. We conceive MCOJ drawing from the use of Human Capacity of Judgment (HCOJ) in the legal discourse, where HCOJ criteria are legal abstractions to assess when decision-making and judgment by humans must lead to legally binding actions or inactions under the law. In this article, we show in what way these criteria can be transferred to machines.

In 2016 the Eastern Cape Local Division in Mthata heard a claim by Mrs Winnie Madikezela-Mandela that, amongst other things, her customary marriage to former President Nelson Mandela continued to exist until his death, despite the dissolution of their civil marriage. Not long thereafter, in 2017, former President Jacob Zuma's daughter made headlines by claiming half of her soon-to-be-ex-husband's multimillion-rand estate despite the couple’s having entered into a valid ante-nuptial contract. The claim was that her preceding customary marriage had not been accompanied by an ante-nuptial contract, and therefore the marriage was in community of property. These high-profile cases raise the fundamental legal question: what effect does a civil marriage between parties have on the parties' customary marriage to each other? Historically the subsequent civil marriage terminated the customary marriage, as such marriages were not legally recognised in South Africa. The Recognition of Customary Marriages Act 120 of 1998 allows for such dual marriages without specifying the consequences thereof. Most commentators have interpreted the provisions to perpetuate the historical position; the civil marriage terminates the customary marriage. While this appears distasteful, the rationale is legal certainty and accords with the recommendations of the South African Law Commission. Furthermore, alternative customary dispute resolution mechanisms are still available to the parties, who are unlikely to suffer prejudice under the interpretation. In addition, given the social reality in which dual marriages are conducted and how they are perceived by parties, parties should be allowed to conclude an ante-nuptial contract after their customary marriage but before their civil marriage to regulate the proprietary consequences of their marriage.

The role of nationality laws and their implementation in underpinning or undermining the modern state in Africa is both important and has received too little attention from policy-makers to date. This is the finding of a comparative analysis of nationality laws across all 54 African states, matched with detailed case studies of the ways in which the law has interacted with politics, especially in countries that have had crises centred on identity. Recommendations call for reform of law and practice to provide a right to a nationality in the country where a person has the closest connections.

Up to now, there has never been a legal approach that indicates in a historical context which rights and duties the Dutch nobility had en still has to a lesser degree. This research fills this gap. When the class society was abolished in 1848, the constitutional meaning of hereditary nobility came to an end. And yet, the archaic inheritance system, that only follows the male family line, continue as a kind of refined right to a name, without conflicting with civil rights that were protected in the constitution and international treaties. In 1983, the institute of nobility entirely disappears from the constitution. The consequence is that in other countries of the kingdom (such as Curacao and Saint Martin) another application of the nobility law appears possible. This legal imperfection can only be rectified by still incorporating nobility in the Charter for the Kingdom of the Netherlands, in which also knighthood is explicitly mentioned.

Recently, two EU instruments relating to business-to-consumer (B2C) relationships have been adopted: a new consumer sales directive and a directive on the supply of digital content. Three further EU instruments are in the pipeline: the so-called Omnibus Directive and a directive on collective redress together known as the ‘New Deal for Consumer’, and a Platform-to-Business regulation (P2B). This editorial aims to give a brief overview and a prima facie evaluation of the content of these instruments and to invite contributions offering a more in-depth analysis of the new rules and their expected impact.

In its efforts to counteract terrorist threats and contain the risks posed by returning foreign fighters, the Netherlands, like several other European states, has enacted legislation introducing denationalisation as a counter-terrorism measure. The Dutch measures target convicted terrorists and foreign fighters alike, the latter without the prior involvement of the judiciary. This practice not only challenges traditional conceptions of citizenship, but also raises several human rights concerns, of which discrimination is the most pressing. This Article therefore examines the measures taken by the Netherlands and analyses their compatibility with Articles 14 and P12-1 of the European Convention on Human Rights, to assess the measures' disproportionate focus on Dutch-Moroccans from a legal perspective. Based on this conclusion of inequality, the Article then ventures beyond purely legal analysis to discuss the Dutch legislation more broadly, before linking the legal argument with normative critiques on the denationalisation of terrorists, and foreign fighters in particular. Taken together, the legal and normative findings establish that denationalisation as a counter-terrorism measure in the Netherlands cannot be reconciled with the legal or normative dimension of the equality principle.

This article considers section 4(2)(b) of the South African Consumer Protection Act 68 of 2008 (hereafter the CPA), which grants a power to courts and the National Consumer Tribunal to make "appropriate orders to give practical effect to the consumer's right of access to redress", including, but not limited to, "any innovative order that better advances, protects, promotes and assures the realisation by consumers of their rights" in terms of the CPA (in addition to any order provided for in the CPA). First, a brief overview of the provisions on interpretation of the CPA is given, to give context to the interpretation of the power of the courts to make innovative orders. Thereafter, instances are discussed where it is undoubtedly clear that innovative orders are needed, that is, where the CPA creates a right without a remedy. Examples are the consumer's right to receive delivery of the goods or performance of the services within a reasonable time where no time for performance was agreed upon, and the consumer's right to assume that "the supplier has the legal right, or the authority of the legal owner", to supply the goods. This part includes analysis and criticism of the only reported decision which discusses the delineation of the power to grant innovative orders, and which unjustifiably refused to grant such an order in respect of the consumer's right that the goods supplied "remain useable and durable for a reasonable time". The article then considers situations where there is no clear gap in the CPA such as a right without a remedy, but the CPA is nevertheless ambiguous and policy considerations call for an innovative order. This part gives an example of a case where the National Consumer Tribunal briefly referred to section 4(2)(b) on innovative orders in support of a new rule on the suspension of prescription (time limitation) not recognised in the text of the CPA. Part 5 of the article considers the types of orders that were probably envisaged by the legislature when drafting section 4(2)(b) on innovative orders, such as publicity and compliance programme orders, which serve to increase the effectiveness and preventative effect of orders on prohibited conduct. This part of the article considers legislation from the United Kingdom on such orders, which is referred to as "enhanced consumer measures".