Is it possible to avoid a conflict between EU and national law that would result in a national court disapplying the conflicting national provision? Under certain circumstances, the duty of consistent interpretation can offer a solution. For example: two individuals conclude a sales contract, which one subsequently claims is void under EU law whereas the other replies that it is a valid contract under national law. If the dispute comes before a national court, it can resolve this issue by interpreting the provision prescribing the validity of the contract in conformity with the EU law provision. But how do judges determine whether such an interpretation is possible? They will have to take into account requirements imposed by the duty of consistent interpretation, but also the discretion that is available to them under national rules of interpretation. Do existing theories on the relationship between EU and national law, i.e. primacy, national constitutionalism and constitutional pluralism, adequately explain the interaction between EU and national law in the context of the duty of consistent interpretation? In this blog, I offer three important lessons for answering this question. This is based on the full analysis of the question in my PhD thesis The EU law duty of consistent interpretation in German, Irish and Dutch courts.Continue reading
The dynamics of contemporary conflicts reveal the difficulties inherent in countries transitioning from conflict to peace and has given birth to transitional justice. The latter is the field of study where justice is not relegated to criminal or retributive justice only but to a holistic range of processes, the ambit of which includes accountability, truth recovery and reconciliatory processes. Kofi Anan former UN Secretary General defines transitional justice as the “ full set of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuse, in order to secure accountability, serve justice and achieve reconciliation.” In keeping within these processes and within this framework, particularly with regard to Africa, there has been resurgence in the use of traditional or local justice mechanisms. In this blog I will thus briefly attempt to highlight the political contingencies that certain states face, which catalyze the use of traditional justice mechanisms and make it so popular within the African transitional justice landscape. I will contend that in some instances traditional mechanisms can adequately address massive human rights violations and establish peace and reconciliation in post-conflict settings. I suggest that the value of traditional justice within politically laden contexts is that they act as catalysts for the promotion of unity. They draw on cultural and religious linkages of interconnectedness that are of value to many African societies, such as the way in which ubuntu was ingrained in the TRC process and the traditional strands of Gacaca conformed into a modern version of Gacaca. This therefore, arguably creates a more “culturally familiar and socially secure” space for people to participate in. Continue reading
Again, as a result of the recent terrorist attack in London, members of the Muslim community are increasingly being portrayed as ‘different’: they are painted as religious fundamentalists who cannot separate politics from religion; who treat women as being inferior to men; and who offer the cold shoulder to LGBT. There are calls for the banning of certain orthodox Muslim religious organisations; the exclusion of religious symbols from public life; the constitutional entrenchment of ‘our values’; and the active ‘integration’ of Muslims into mainstream society. During his 2011 speech before the Munich Security Conference then Prime Minister Cameron called for replacing the passive tolerance of recent years by a much more active, muscular liberalism: “A passively tolerant society says to its citizens: as long as you obey the law, we will leave you alone. It stands neutral between different values. A genuinely liberal country does much more. It believes in certain values and actively promotes them.” Continue reading
Radicalization and associated issues such as extremism and terrorism are important problems in our world. Various radical belief systems are associated with the problems of radicalization, extremism, and terrorism. These belief systems include extreme Muslim beliefs as well as radical right-wing and left-wing beliefs. Due to its importance and complexity, I am currently writing a book on why people radicalize. The book, to be published in 2018 by Oxford University Press, aims to provide an accessible, advanced, and up-to-date assessment of what is going on inside people’s heads with respect to fairness issues and radicalization. The book reviews several instances of radicalization and theories of radicalization. The book also introduces a framework to understand radicalization. In developing this framework I propose that perceived unfairness is a key antecedent of various radicalization processes, especially when these perceptions are combined with uncertainty or other threats and with insufficient correction of self-centered impulses. Continue reading
China has undergone great transformation in the turbulent years since the establishment of the new government in 1949. New practices have been woven with old traditions into a complicated social background. This has many implications, including for the living status of migrant women working as domestic helpers in China. According to estimates, there are more than 270 million migrant workers with rural living registration (Hukou) working in urban areas, who are therefore excluded from various public services and social benefits supported by urban governments. With an increasing number of women in China entering the labour market, gender discrimination, the gender pay gap, and occupation segregation are still conspicuous in practice. With the economic boost and labour expansion, millions of domestic workers are in need throughout China, yet their basic human and labour rights are not guaranteed by law. An extreme illustrative case about the poor working situation is that of Cai Minmin, a rural migrant girl working as a domestic servant who was abused for five years by her host, which perhaps reveals the tip of an Iceberg. Continue reading
Writing something about the Urgenda judgement (Rechtbank Den Haag 24 June 2015, ECLI:NL:RBDHA:2015:7145) might seem abundant at this point. After all, a lot of literature about the judgement has already been published. Is the judgement really so special? That can, with good reason, not be denied.
The Urgenda Foundation is the organisation for sustainability and innovation which aims to together with companies, governments, civil organisations and individuals, make the Netherlands sustainable more quickly. This foundation has filed a civil case against the State, because according the foundation while the government has recognized the urgency of the climate problems, it has taken insufficient action to prevent dangerous climate change. In the Urgenda judgement the State, on the basis of the standard of due care observed in society as set out in article 6:162 of the Dutch Civil Code, is subject to a periodic penalty payment ordered to reduce the annual greenhouse gas emissions by 2010 by at least 25 percent compared to the 1990 levels. The relevant international provisions for the case cannot be relied on at law at the national judge, in the sense that they are unsuitable to be directly applicable as positive law in the national legal system and they are therefore not binding on all persons as provided in articles 93 and 94 of the Dutch Constitutions. However, the court applies the so-called consequential effect. The latter means that the court, in applying the national open standards, such as the standard of due care observed in society, takes into account international provisions that are not binding on all persons as provided in articles 93 and 94 of the Dutch Constitution.
Earlier this year, the Council for the Judiciary released a plan to establish a Netherlands Commercial Court (NCC). In the plan it was stated that the NCC would start on the 1st of January 2017. By now, a starting date of July 1st, 2017 seems more realistic. The upcoming Brexit makes this, in itself already stimulating, plan even more interesting. Will this boost the chances for this special provision for international commercial cases in Amsterdam? In this blog I will discuss the reasons for this initiative, the innovative aspects of it and its chances of success in light of the Brexit. Continue reading
International criminal justice has a reputation for being slow and progressing at a ‘glacial’ pace. For example, it took the International Criminal Court (ICC) ten years before it handed down its first judgment in the Lubanga case after it started operating in 2002. Similarly, the International Criminal Tribunal for the former Yugoslavia (ICTY) has a reputation for slowness; particularly after some trials lasted longer than six or more years. Court watchers are all too aware of the slow, sporadic developments coming out of these courts, and often eagerly await judgments. That is why the months of March and April 2016 were so anticipated, as they provided a windfall of developments within international criminal justice. The old expression is true: when it rains, it pours! Continue reading
Under the headline ‘The claim industry’, the Volkskrant on Saturday the 27th of February devoted attention to the increase in the number of collective redress procedures in the Netherlands. The figures presented by the newspaper are clear: organisations who allegedly represent half a million people, have in total claimed 1.6 billion euros in damages from businesses and institutions. Yet this message will not have surprised the average newspaper reader. The media regularly reports about new collective redress procedures and many people will have asked themselves whether they should not have also joined the proceedings. Who does not have an insurance policy which appeared to have excessive charges, drive a car with rigged software, play the State Lottery or regularly take the NS train during rush hour? Only a few people would consider litigating for themselves to recover these kinds of damages. The amounts of losses are too low and the costs and risks of litigation are too high. One speaks here of ‘scattered damage’. However, if the claims are combined in a collective claim for damages, it suddenly involves significant amounts and it becomes a very different matter. Continue reading
In the NRC Handelsblad a piece written by my colleagues Grootelaar and Van den Bos was recently published on the new mediation legislation. Apart from this article the public debate concerning mediation appears to be at a standstill for some time. The lull before the storm, I suppose. Although the private member’s bills submitted by the (then) member of the second chamber Ard van der Steur Wet bevordering van mediation in het burgerlijk recht, Wet registermediation and Wet mediation in het bestuursrecht are recently withdrawn, the Dutch government has indicated to come up with a bil of its own. This will likely lead to a new stream of articles in newspapers and legal journals. A recurring theme will presumably be the ‘personal responsibility’ and ‘self-reliance’ of citizens. But actually, as I argue in this blog, the obvious ambiguity of these concepts will force us to reflect on the access to mediation. Continue reading