bluuebunny/crossref_metadata_2025 huggingface dataset:
Analysis of Halal Literacy Level on Halal Awareness and Use of Halal Products
Authors: Maryam Andi , Sumar’in Sumar’in
Published: April 2022

Sambas Regency is a district that has the most extensive Muslim population distribution in West Kalimantan. This research took the research setting in Teluk Keramat District, one of the sub-districts in Sambas Regency, considering the distribution of the Muslim population. The percentage level of Muslims and non-Muslims is also the largest in Teluk Keramat District, reaching 97.30% of the population is Muslim. Teluk Keramat is a sub-district that is considered the "golden triangle" in the economic sector. This research uses an associative explanatory method or correlational study with a quantitative approach. The population in this study were all Muslim communities in the Teluk Keramat District, amounting to 72,470 people. This study found that the halal literacy variable will only have a significant positive effect on the use of halal products if it is through the halal awareness variable. In other words, halal literacy will have a significant positive impact in increasing the use of halal products if halal awareness is well established. But if Halal Literacy cannot increase halal awareness, then halal literacy will not significantly impact the use of halal products.
Cross-border water pollution: two paradigmatic Dutch cases
Authors: Betlem Gerrit
Published: April 2022

Trans-boundary water pollution disputes before civil courts raise complex questions of substantive tort law, of standing for public interest groups and of private international law. As for the international jurisdiction of Dutch courts with respect to most European-based defendants, the EC 1968 Brussels Convention applies. This instrument provides for competence of the Dutch courts at the place(s) where the harmful event has occurred (the forum delicti). To date, the European Court of Justice has not yet decided whether the forum delicti also applies in situations of threatened wrong. Regarding Dutch substantive tort law, the applicable law in the two dispute this article focuses on, Dutch-based environmental protection groups have successfully sued foreign defendants on the basis of breach of statutory duty, whereas they are facing judicial reluctance when suing on the basis of breach of unwritten law.
Die Entwicklung des europäischen Privatversicherungsrechts
Authors: Matusche-Beckmann Annemarie
Published: April 2022

Because of considerable differences among Member States as to the legal rules governing both contracts of insurance and the supervision of insurance institutions, the creation of a Single European market in insurance faces particular difficulties. The following contribution charts the most important steps that have been taken towards European integration in this field.
Constitutional review of Disproportionately Different Periods of Limitation of Actions (Prescription)
Authors: Storme Matthias E. , Pozzo Barbara , McGee Andrew
Published: April 2022

The different treatment of victims, in relation to limitation of civil actions for damages, depending on whether the fault causing the damage constitutes a criminal offence or not (Art 26 Preliminary Title of the Code of Criminal procedure), has the effect that a party who has suffered damage is in a fundamentally less favourable situation when the damage is caused by a fault constituting a criminal offence as compared to the case where the fault does not constitute a criminal offence.

In those cases where the damage only becomes apparent after a long period of time, this

leads to a serious limitation of the rights of the victim, out of all proportion with the interests which the legislator of 1878 and 1961 sought to protect, namely the right of the tortfeasor to put his past behind him, legal certainty and the public interest in avoiding a new disturbance of social peace and order where it has been restored in the meantime. These preoccupations justify specific periods of limitation for penal actions, according to the gravity of the offence. They do not, however, justify the position where the limitation period for a civil action for damages caused by these facts is five years — even taking into account the amendments which have been effected by legislation and case law — when compensation for damage caused by fault, which does not constitute a criminal offence, can be claimed for a period of thirty years. There is thus no reasonable proportionality between the measure and its effects on the victims of criminal offences.
ECJ case-law as a means of unification of private law?
Authors: van Gerven Walter
Published: April 2022

The author emphasizes that the ECJ's case-law may be bold, or even audacious, when it relates to the interpretation of basic Treaty provisions, particularly when the legal protection of the Community rights of individuals is concerned. That is normally not the case, however, where the interpretation of provisions of secondary law, such as directives, is concerned. The observation is important because it explains why, in the view of the author, the ECJ's case-law will have a more substantial impact in the area of extra-contractual liability, i.e. tort law, than in the area of contracts law. For indeed, tort liability is regarded by the ECJ as a crucial remedy for individuals to enforce their rights against Community institutions before the ECJ (Art. 215 EC) as well as, and more importantly so, against all branches or organs of Member States (so-called Francovich-liability) before national courts. The author develops this point in sections B and C of his article, mentioning that sooner or later Francovich-liability might be broadened by the ECJ to include also liability of individuals for breaches of Community law. In the last part of his article the author then assesses the present and possible future impact of the ECJ case law on domestic contracts law in the light of the Uniform Consumer Contract Terms Directive. As said before, he is of the opinion that in the area of contracts law the impact of the ECJ's case-law will be much less important because contractual liability is, under Community law, far from being a remedy of the same significance as tort liability.
The Common Core of European Private Law: Third General Meeting, Trento 17-19 July 1997
Authors: Kötz Hein
Published: April 2022

There are two different types of legal academic scholarship that are needed to lay the foundations for the gradual development of a Europe-wide system of private law. On the one hand, it is necessary to write books, articles and case books that deal with their subject from a European standpoint and therefore represent the rules of national legal orders as merely local variations on a uniform European theme. An alternative approach is to develop, for certain fields of law, rules that are accepted in all European states. This latter approach is that of the Trento Project. Its particular strength lies in the fact that it selects specific conflicts of interest as its starting point and for each of these conflicts investigates whether they are resolved by the European legal systems in similar or different ways. From one example taken from contract law (the good faith clause) it is shown not only that differences may exist between the various European legal systems, but also why that should be so.
BGH, Urteil vom 2. Juli 1996, BGH - Zur Reichweite des Vertrages mit Schutzwirkung zugunsten Dritter
Authors: Doris Philippos , Stoll Hans , Probst Thomas
Published: April 2022

The German Federal Supreme Court took this judgment as an opportunity to state its position on the scope of application of the contract with protective effects towards third parties once again. The judgment was based on the following set of facts: A firm G, which was not itself a party to the dispute, dealt in the business of tempering items made of steel and other metals. The tempering process took place in a so-called nitration oven. The parties to the dispute were customers of G and on one occasion the products of both parties destined for nitration were placed in G's oven at the same time. Some time after the start of the nitration process there was an explostion, which caused large sections of the oven to fly into the air. According to the plaintiff, the product delivered for nitration by the defendant was not in accordance with G's regulations and because of the explosion caused as a result the product delivered for nitration by the plaintiff were destroyed. The District Court approached at first instance allowed the plaintiff's claim to the fullest extent and assessed damages on the basis that § 823 (1) of the Civil Code applied. On an appeal by the defendant, the Appeal Court confirmed the findings of fact made by the District Court, but decided the appeal in accordance with the principles of the contract with protective effects towards third parties.

The further appeal on a point of law led to this decision being quashed and referred back to the Appeal Court. The Supreme Court in its judgment first of all rehearsed - in a passage that is well worth reading - the development of the contract with protective effects towards third parties, and stressed that it had always been a concern of the case law to avoid an endless extention of the the range of persons falling within the field of protection. In the present case there was an absence of certain decisive criteria, which previous cases had insisted must exist before a contract with protective effects towards third parties could be recognised. The plaintiff lacked the necessary closeness to the unperformed obligation because the parties had concluded independent and unrelated contracts with G, and the plaintiff had no connection at all with the defendant's principle obligation, namely payment of the agreed fee. Furthermore, the plaintiff had no need to be protected by being drawn within the field of protection of the contract between the defendant and G, because the plaintiff had its own warranty claim against G arising out of the contract entered into between G and itself.

The authors examine the decision from the point of view of German (Stoll), Swiss (Probst) and Greek (Doris) law and subject the contract with protective effects towards third parties as a legal institution to a critical evaluation.
The Gentleman's Agreement in Legal Theory and in Modern Practice
Authors: Rudden Bernard
Published: April 2022

This paper is a general comparative report on the responses of fifteen national reporters to an issue rarely touched by caselaw or doctrine: the problems arising for the legal order when honest and competent parties deliberately agree to ust the law from their elationship. It first examines the issues of legal theory posed by such an agreement, including its overlap with other well-known legal doctrines, and uses the gentleman's agreement as a touchstone to distinguish different visions of the proper function of private law. It then examines the practical use of such agreements in various fields of trade and commerce. A version was presented at the 1998 Bristol Congress of the International Acadamy of Comparative Law.
Service of Documents in the European Union: The Brussels Convention of 1997
Authors: Meijknecht Paul
Published: April 2022

This article deals with the recent Convention on the service in the Member States of the European Union of judicial and extra-judicial documents in civil or commercial matters, signed in Brussels in 1997. Firstly a brief analysis is given of problems which may occur whenever a legal document concerning civil litigation or enforcement of a judgment has to be formally served in another country. This introduction is followed by an overview of how the Hague Convention on Service Abroad of 1965 has dealt with these problems. Although generally speaking successful in solving some of the major problems, the Hague Convention appeared to be often too cumbersome for the traffic of documents between neighbouring States participants in an Internal Market. Therefore especially for this Internal Market a new Convention was developed in the framework of the judicial co-operation in civil matters, referred to in the Maastricht Treaty. The article focuses on this new Convention. Its main result was the establishment of direct transmission between decentralised agencies of the documents concerned. Also in some other aspects such as the use of modern technical means of transmission, use of languages, short deadlines, the new Convention is an important further step towards more efficiency in this area, although the final result of the negotiations showed also some insufficiencies. It is up to legal practice to make the new provisions really work.
Europeanisation of European Law Adjudication — A Comment
Authors: Feiden Sonia
Published: April 2022

This paper seeks to explore the workability of the idea of interactive adjudication in the field of European primary law. It sets out some of the problems of so-called negative integration through ECJ jurisprudence on the fundamental economic freedoms, and argues that co-operation between the different levels of governance in the EC is required to provide the regulatory framework indispensable for transnational economic activity. Strengthening the European Union, it is submitted, will not necessarily mean 'more Brussels and Luxembourg'. To support this opinion, the De Agostini and TV-Shop case is examined in this light.
Notes on Family Guarantees in English and Scottish Law — A Comment
Authors: Geary David
Published: April 2022

This comment takes the example of the Dietzinger case and considers it from the perspective of the law in the UK, where the case has received virtually no attention. The credit guarantee issues raised by the Dietzinger case are resolved in the UK by reference to common law and equitable principles, notably concerned with undue influence. By contrast the avenue that has been explored to resolve these issues in German literature and case law if the application of the Doorstep Selling Directive. While the approach of the courts in the UK is not in itself problematic - particularly as many cases deal with the guarantee of business loans, which the European Court of Justice has confirmed are not covered by the Directive - the potential impact of the Directive on private law should not be ignored.
On European Freedoms and National Mandatory Rules: The Dutch Judiciary and the European Convention on Human Rights
Authors: Hartkamp Arthur
Published: April 2022

1. Introduction. Delimitation of the subject: the paper is restricted to human
General Clauses in European Private Law and 'Stricter' National Standards: The Unfair Terms Directive
Authors: Klauer Irene
Published: April 2022

This article deals with the tension between general clauses in European Private Law and the minimum provision which allows member states to adopt or retain stricter national law. Several private law directives contain general clauses, such as the standard of 'good faith' in the Unfair Terms Directive, which introduce a very broadly defined common standard into the private law of the member States. Further examples are the 'likelihood of confusion' in the Trademark Directive and the Community Trademark Regulation, the 'conformity with the contract' under the Consumer Goods Directive or the definition of misleading advertising in the Directive on Misleading Advertising. The author argues that it is up to the Court of Justice to give a common, european interpretation of such general clauses and to provide the national courts with the respective guidance. The freedom of the member states to adopt or retain stricter national law, does not mean that the national courts are free to develop and apply a different standard from the Court of Justice — even if this leads to 'stricter' results. As a precedent in favour of this approach, the author cites the Nissan case of 1992, where the Court held that a certain slogan could not be qualified as misleading advertising under the directive, even though the referring national court proposed to treat it as such and advocated a stricter solution.
Patrimony Not Equity: the trust in Scotland
Authors: Reid Kenneth G.C.
Published: April 2022

While the distinction between legal and equitable ownership is of central importance to the historical development of the trust in England, the idea of trust does not depend on such a distinction. In the mixed legal systems, of which Scotland is an example, there is a fully developed doctrine of trust, but no corresponding doctrine of equity. This suggests that equity is not, after all, the main organising feature of the law of trusts. The argument of this paper is that the fundamental characteristic of the trust is not dual ownership, but dual patrimony. In the normal case a single person has only a single patrimony. But in a trust there are two patrimonies, for, in addition to his private patrimony, the trustee holds a trust patrimony consisting of all the assets and liabilities of the trust. The patrimonies are distinct in law, so that the assets of the trust patrimony cannot be used to meet the liabilities of the personal patrimony. This idea of dual patrimony explains much in the law of trusts that is otherwise puzzling. In particular it explains the substitution of assets when trust property is bought and sold, the protection given to the trust beneficiary against the personal insolvency of the trustee, and the identity of the trust in a manner distinct from those who, for the time being, are its trustees and beneficiaries.
Case Note - BGH 11 November 1997
Authors: Halliday Samantha
Published: April 2022

The decision of the German Federal Supreme Court adds to its jurisprudence on the circumstances in which a tortfeasor can be made liable for psychological damage to the injured party (compare on this point also the case notes published in this journal on the leading decision of the Supreme Court (BGHZ 132, 341 = JZ 1996, 1080 (note Schlosser), ERPL 1998, 249 ff.). For the facts of the case, reference is made to the first paragraph of the attached case comment, which examines the problem from the point of view of English law. In its reasoning, the Supreme Court deals, inter alia, with liability in relation to a nervous condition and with the issues identified in the statements of principle:

Statements of principle:

a) The answer to the question whether a harmful event can be so minor that under the principles of the Supreme Court decision BGHZ| 132, 341 ff. liability for psychological harm can be excluded depends on the primary injury suffered by the injured party.

b) If the unfitness for work asserted by the injured party arises from a psychological inability to deal with the harmful event, the tortfeasor may be obliged to compensate for the length and amount of any loss of income that may come into consideration, if the prognosis is that serious risks to the development of the injured party's future career because of the aforementioned psychological difficulties exist with a sufficient probability to statisfy §287 of the German Code of Civil Procedure.
Regionalist Challenges to the EU Decision-Making System
Authors: Evans Andrew
Published: April 2022

Regionalism involves an increasing tendency for regions to identify and pursue interests divergent from those expressed in international and European organizations by the central institutions of their state. The divergence reflects the diminishing capacity of the state, in the face of growing global interdependence, to act as a coherent entity whose collective interests can be represented as expressed by central institutions. The constitutional implications of this divergence for the role of Member States within the European Union are considered in the present article. The essential question considered is whether, at least as regards matters of particular interest to certain regions, the need is implied for the Union to develop a more pluralist decision-making system than the present one. The question will be considered having regard to the relationship between the legal concept of state sovereignty and the political science literature on the `coupling' of decision-making arenas.
OGH vom 27.1.1999, 3 Ob 225/98d, JBL 1999, 470 Zur Verzinsung eines Schadensersatzanspruches beim Schuldnerverzug
Authors: Pahlke Anne-Kathrin , de Temmermann Bart , Christodoulou Kostas N.
Published: April 2022

The following set of facts formed the basis of the decision of the Austrian OGH: The parties were land owners. Jn 1992 excavation work at the defendant's premises caused damage to the claimant's neighbouring house because inadequate precautions were taken. The amount of the damage (repair costs, reduction in value etc.) came to more than 1.85 million Austrian Schillings. The claimant did not allow the repairs until the day of the decision of the OGII, and also did not claim any advance on the costs from the defendant. He worked from October 1993 with a bank loan, that exceeded the amount of the damages, which attracted interest at a rate higher than the legal rate. In his claim, the claimant sought compensation for his aforementioned damage including the full amount of interest that had accumulated through the delay in payment. The lower courts awarded the claimant his aforementioned damage, but only allowed his claim for interest at the legal rate of 4%. In his application for Revision the claimant sought reimbursement of the sum constituting the difference between the legal rate of interest and the rate that he claimed to have paid.

According to the OGII, a claimant's claim for interest is justified in so far as he has been able to show that he has actually suffered damage in the form of interest payments of the amount claimed during the relevant time period. The issue is one of damage resulting from delay, irrespective of whether the person responsible for payment of compensation was approached for an advance of the costs involved in repairing the damage before credit was obtained or not. This head of damages — which is not limited by § 1333 AGBG — can also be claimed when the person responsible for compensation is liable to pay for the "positive damage" caused by the slight negligence of the tortfeasor. According to § 1298 AGBG it is the defendant who has the burden of pleading and proof of the absence of fault. It is irrelevant whether the claimant has incurred the amount claimed solely in repair costs. A claim is however excluded, because of the disqualification of fictitious repair costs, if it is established that no attempt to repair the damage will (or can) be made at all.

The following authors investigate the issues raised by the decision from the point of view of Austrian, German (Pahlke, Christodoulon), Belgian (Temmerman), and Greek (Christodoulou) law, as well as with reference to the Principles of European Contract Law, the CISG, the Unidroit Principles and the European Parliament and Council Regulation on the Combauing of Late Payments in Commercial Transactions of 29.6.2000.
The Role of Competition Policy in the Promotion of Competitiveness and Development in Latin America
Authors: de León Ignacio
Published: April 2022

"It is a task of a contemporary social theory of law to study the fate of law in periods of revolutionary change, not so much in order to examine the rapid substitution of new laws for old but rather in order to examine the ways in which foundations are or are not laid for a stable and just legal order in the future, after the revolution has settled down."
A Juridical Approach to the Notion of Independent Labour. A Critical Study of the French and the German Systems
Authors: Schneider Marc
Published: April 2022

The French Government and its German counterpart changed their legislation about independent employment almost simultaneously. In Germany the Law concerning the encouragement to independence, retroactive until 1.1.1999 (BGBL I 2000, 2), changed the rules about social insurance (§ 7 SGB IV) and instituted the obligation of retirement contributions for pseudo-independents (§ 2 Nr. 9 SGB IV), together with an official request for information concerning the statute. In France the ‘Aubry II Law’ struck off the first two paragraphs from the L 120-3 C.trav ‘ancien’ Law, so called ‘Madelin Law’, striking any legal definition of labour. The aim of this article is to show the advantages and disadvantages of both laws by comparing the different criticisms.
Union Exclusivity Arrangements: A Comparative Overview
Authors: Miller Kenneth
Published: April 2022

The purpose of this article is to compare the new British trade union recognition procedures with those of Canada and the United States. The article considers how the new legal framework in Britain affects the collective bargaining process and contrasts this with North American arrangements. It is argued that the British legal position involves a much lower level of interference with the administration of collective agreements and a much higher level of autonomy and independence given to workers to negotiate their own terms and conditions of employment than is the case in Canada or the United States. The article also examines the level of statutory and judicial support given to union security arrangements in Canada and the United States and compares this with the British position where no change has been made to the extensive range of statutory protections given to the non-union worker.
Environmental Risk: A Comparative Law and Economics Approach to Liability and Insurance
Authors: Monti Alberto
Published: April 2022

The first part of the paper explores the factors that make up an efficient mechanism for ensuring that industries internalise the costs of environmental damage. In particular, the author considers the insurability of environmental risk and the possibility of using highly individualised insurance policies to cover that risk and at the same time to provide incentives to invest in safe technology and practices. He concludes that the most appropriate way forward would be to use an institutional structure in which strict liability both for damages suffered by private parties, and for restoration of impaired natural resources is imposed. Liability should be non-retroactive, individual and proportionate - assisting the potential tortfeasor to perform a costs-benefits analysis. Regulation should work hand in hand with insurance. Regulators should set minimum safety standards as pre-requisites for the operation of certain types of industrial plant on the basis of the information provided by insurers as to the nature of insurable risks. Any plant authorised to operate should therefore be able to obtain insurance coverage. Such a system would provide for environmental liability which is limited to the extent necessary to make it insurable. The need would therefore remain for a tax based compensation fund to cover uninsured damage.

The second and third parts of the paper go on to examine how far national legal systems and EU law respectively measure up against the proposed model. Monti concludes that the suggested model would be in keeping with and useful to the further development of environmental policy in the EU.
Österreichische OGH, Urteil vom 2.7.1998 - Zur Haftung für die Beschädigung eines "gefälligkeitshalber" gelenkten fremden PKWs
Authors: Theodorou Heleni
Published: April 2022

The decision of the OGH was based on the following set of facts: the parties met through a common acquaintance. At the suggestion of the defendant they decided to go to a bar, along with some others. Since the claimant had already had some alcohol, and did not have a driving licence with him, the parties agreed that the defendant should drive to the bar in the claimant's car. It was not possible to establish whether there had been any further discussion about what should happen in the case of an accident, and in particular whether the question of liability in such a case had been raised. On the way to the bar, the defendant was responsible for causing an accident through bad driving, and the claimant's car was a write off.

The lower courts allowed the claim for compensation in principle. The defendant's appeal in revision was also unsuccessful. The OGH left open the question whether the parties had entered into a contract. In such a case the defendant was responsible for returning the borrowed item intact. If there was no contract, the same result would be reached through a tort claim based on negligent damage to property under §§ 1295 ff. ABGB, since the accident was the result of driver error and this error - because of the dangerous nature of the activity undertaken - indicated the existence of an objective lack of care sufficient to make the defendant's action unlawful, as well as a subjective fault element. The claim thus identified existed even when the owner of the property allowed the defendant at his suggestion to drive a car on a shared journey.

The following contributions examine the judgment from the standpoint of German and Greek law.
Labour Reform in Argentina: A Double Course of Action Change
Authors: Ackerman Mario E.
Published: April 2022

The recent legislative reform made in Argentina intends to promote stable employment and collective contracts. In the latter issue it aims not only to overcome the present virtual bargaining paralysis, but also to break with the traditional model characterized by intense centralization. In these terms, it deals with an ambitious and double novelty. The policy of temporary employment promotion encouraged in the 90's is abandoned in individual contracts, but the challenge in the collective field even greater, because one of the typical issues of the Argentine system of labour relations is being questioned.
Equal Treatment of Employees and Self-Employed Workers
Authors: Engblom Samuel
Published: April 2022

Developments in the organisation of work make it necessary to question the traditional personal scope of labour law. Many self-employed workers share sufficiently many characteristics with employees to make a strong case for their inclusion in the personal scope of labour law. Genuinely self-employed workers are, however, not just workers, but commercial enterprises as well. A balance thus has to be struck between the conflicting regimes of labour law and commercial law, granting sufficient social protection to the self-employed workers while not destroying the competitiveness of his or her enterprise.
European Collective Bargaining, New Prospects or Much Ado about Little?
Authors: Voynnet-Fourboul Catherine , Rojot Jacques , Le Flanchec Alice
Published: April 2022

This paper deals with the prospects for European collective bargaining. The major changes that occurred during the two last decases on that matter are reviewed. Though these changes have a new steps towards the building of a social dialogue at the European level, numerous obstacles remain before achieving actual true European collective bargaining. The nature of these obstacles is described in detail. In particular, the paper focuses on the role and impact of European Works Councils and illustrates the analysis through original empirical work and case studies.
The Structure of European Contract Law
Authors: Grundmann Stefan
Published: April 2022

The internal market and the fundamental freedoms aim at extending party autonomy across borders. The instrument of party autonomy is the contract. The basic concepts and the legal measures on which EC contract law is based are recent. However, from both a conceptual and an empirical point of view, EC contract law has become indispensable. That applies even in purely domestic cases. Contract law is the core area of private law, EC contract law influences already more than half of all contracts, also domestic, and two thirds of all cross border transactions of the member states are now with other member states. EC contract law can be defined as covering all EC rules concerning the formation, the content and the termination of contracts.

EC contract law emerging over the last decade focuses on a specific type of transaction, and also of a particular regulatory approach. It focuses on transactions which typically concern large volumes and that are not only domestic. It is mainly obstacles to these transactions which are overcome and it is primarily the risks of these transactions which are regulated. European contract law has to be conceived both as broader and as narrower than national contract law. Broader because it includes all rules pertaining to contracts, also public good regulation. Narrower because it includes only rules which take away obstacles. National rules only constitute obstacles when internationally enforced.

The key structural issue in European contract law is the division between on the one hand rules that are internationally enforced according to articles 5–7 of the Rome Convention on the law applicable to contractual obligations. On the other hand are the rules that the parties can choose according to article 3 of the Convention. Only rules internationally enforced are subject to scrutiny on the basis of the fundamental freedoms of EC law. Both areas are further developed in specific sections of this article: There is virtually no harmonization where parties can choose the law applicable. There is intense harmonization for rules that are internationally enforced. There are in fact only very few national rules which are not harmonized in this area. It is argued that the major aim of harmonization here is to remedy two forms of market failure: restrictions of competition and (certain) information asymmetries.

In the section concerning the policy decisions inherent to the structure it is argued that the instruments used are such that both over regulation and state failure tend to be avoided. The policy is not restricted to a laissez faire approach either. The framework and mechanisms adjust the intensity of regulation near to an optimal level. This framework deserves more truly international and interdisciplinary discussion than it has received so far.
A Fair Hearing Before EC Institutions
Authors: Drabek Libor
Published: April 2022

This paper discusses the protection of private parties within the framework of administrative implementation of European Community law. It analyses the procedural guarantees of private parties and in particular the right to a fair hearing. In this context the relevant rules established by Article 6 of the European Convention on Human Rights are also considered.

The author tries to determine the legal basis of the right to a fair hearing and the conditions under which it has been applied by the EC institutions. A particular attention is drawn to the rules on competition and state aids where the development in the case law and the relevant legislative framework are discussed. Once the content and the applicability of the right to a fair hearing are defined, the author goes on to discuss the specific aspects of the right to a fair hearing, such as privilege against self-incrimination and reasonable length of proceedings.

Finally, the question is raised as to whether the fairness in the proceedings can be effectively enforced by the individuals before the European Community courts. In this regard a locus standi of the private parties before the European Community courts is examined in the area of competition and state aids.
General Features of Collective Bargaining in Portugal
Authors: Leitão Maria Josefina Menezes
Published: April 2022

Collective bargaining is facing several problems. In a democratic society, social partners are forced to deal with issues which have never been dealt with before. Representation by trade unions and employers' associations is declining therefore causing the decision making of enterprises to be a bit less democratic. The problems facing not only Portugal but all industrialised countries, is how to maintain the role of collective bargaining and the new issues which plague it. It is important that the social partners handle their relationship in a democratic manner.
Individual Labour Contracts in People's Republic of China Enterprises
Authors: Zhu Ying , Campbell Iain
Published: April 2022

Individual labour contracts have been widely introduced within enterprises in the People's Republic of China (PRC). Their development and generalisation have been a key element in a more general project of economic reform, aimed at replacing the traditional system of employment relations with a new system consonant with the notion of a 'socialist market economy'. This paper draws on fieldwork research conducted in mid-1999, including interviews with managers in seven enterprises in Beijing, Shanghai and Zhejiang provinces, in order to examine the practice of the labour contract system at the enterprise level. It focuses on the extent and significance of the varied forms of labour contract, their content, how they are negotiated and used at enterprise level, and their impact on employment relations. Labour contracts are designed by management in accordance with statutory requirements and templates supplied by the local Labour Bureaus. Our research confirms that labour contracts are indeed widespread. However, it also suggests that the form of the labour contract provides few clues to the practice within the enterprise. This undercuts the expectations — whether in hope or fear — that the labour contracts might be used as a lever for re-defining rights and benefits at the enterprise level.
‘Outflow’ Rigidity and Flexibility in Italian Employment Law
Authors: Carinci Franco
Published: April 2022

According to international surveys and lawyer opinions the Italian employment protection system is one of the most rigid in Europe. During recent years this rigidity has been significantly reduced in matters of contract initiation but as far as the legal termination of such contracts are concerned, this is much easier said than done. This article highlights first of all the reasons for such inflexibility and its effect on employment especially regarding already established means for terminating a contract legally.
Has the Problem Concerning the Delimitation of the Community’s Competence been Resolved since the Maastricht Judgment of the Bundesverfassungsgericht?
Authors: Tolias Yiannos S.
Published: April 2022

Since the Maastricht judgment the Bundesverfassungsgericht appears to have adopted a more conciliatory approach towards the process of European integration (Alcan, Banana and 9 January 2001 judgments). Similarly, from the Maastricht ruling, the European Court of Justice appears to be more cautious with the issue of the limits of the Community’s competence (Opinion 2/94 and Tobacco Advertising Case). However, the problem concerning the limits of the Community’s competence has not been resolved as shown in Case 285/98 (Tanja Kreil). The principle of flexibility could play a role to the solution of the competence problem. It would prevent a constitutional clash within the Member States and at the same time allow integration to proceed.
Cross-Border Torts in EC Courts – A Response to the Proposed “Rome II” Regulation
Authors: Dickinson Andrew
Published: April 2022

On 3 May 2002, the European Commission launched a consultation on its preliminary draft proposal for a Council regulation which aims at harmonising the rules with respect to the law applicable to non-contractual obligations. The consultation closed on 15 September 2002, and the Commission’s response is awaited. This note critically examines the Commission’s proposal and asks whether a sufficient case has been made out for Community wide legislation in this field, suggesting that the Commission’s resources might be better deployed in other directions.
The Convention of Cape Town on International Interests in Mobile Equipment: The Solution of Specific European Property Law Problems
Authors: Honnebier B. Patrick
Published: April 2022

In November 2001 the Convention on Interests in Mobile Equipment (CIME) and the Aircraft Equipment Protocol (AEP) have been concluded. The CIME is a framework convention incorporating general provisions. The regime relates only to certain categories of mobile equipment, which are defined in separate protocols. The AEP is the first protocol that has been introduced. It relates exclusively to aircraft, aircraft engines and helicopters. The Railway Rolling Stock Protocol and Space Assets Protocol are to follow in due course. Furthermore, protocols for oilrigs, containers and trucks may follow. The CIME/AEP is an ambitious project from a legal point of view. This document contains uniform substantive provisions relating to property law. Furthermore, it introduces rules in respect of the enforcement and priority of interests in aircraft objects in case of and outside the bankruptcy of the debtor. Previous attempts at codifying these areas of the law at the international level have been unsuccessful. Particularly, the complexity and diversity of European property rights account for this fact. The creation of uniform law regarding security interests in movables requires by far the most drastic change in European national laws. The past has proved how extremely difficult it is to transcend the parochialism that exists in the property regimes of European states. The CIME/AEP provides for the creation of an international interest. Furthermore, the convention establishes an International Registry at which an international interest may be entered. Additionally the CIME/AEP regime lays down the remedies of the holder of an international interest. Following international registration, and depending on its priority status the holder can exercise its international interest in respect of the debtor in any contracting state. Finally, the CIME provides that a Regional Economic Integration Organisation also may sign it. Consequently, if the European Union accepts the convention, it has the rights and obligations of a contracting state.
Planning, Building and Environmental Law After the Recent Italian Devolution
Authors: Ferrari Erminio
Published: April 2022

In this article, Professor Erminio Ferrari examines the impact of the recent Italian devolution on the system of building and planning regulation in Italy. These recent developments have taken place in the context of a constitutional reform which has altered the nature of devolved government in Italy. However, the revision failed to attend to many matters of detail, with consequential problems for interpretation and application.
The German Law of Planning: An Overview
Authors: Hermes Georg
Published: April 2022

In this article, the author describes the essential features of planning law and the controls on development as they operate at the various tiers of government in Germany. The article describes how a balance is achieved between the control of development and the rights of property owners and other parties. In spite of the system's apparent technicality, a great deal of flexibility is present in its operation
Public Law Litigation and the Belfast Agreement
Authors: Anthony Gordon
Published: April 2022

This article examines the approach that Northern Ireland courts have taken to the resolution of judicial review applications arising from the implementation of the Belfast Agreement of 1998. Focusing on the insights offered into the relationship between law and politics, and referring the court decisions to academic debates about the need for the adoption of revised juridical techniques in the light of constitutional change, the article suggests that the jurisprudence reflects a tension between more novel and orthodox modes of judicial reasoning. The tension, which has been most apparent in the context of approaches to statutory interpretation, is argued to have led to the Belfast Agreement having only a very limited impact on the outcome of some cases. While the limited impact can be said to be consonant with constitutional orthodoxy, the article suggests that orthodoxy is apt to diminish the significance of the wider process of change ongoing in Northern Ireland. The Belfast Agreement is structured around a number of unique institutional understandings and relations, and it is argued that these demand the adoption of more responsive juridical techniques. Thus the article concludes by identifying those aspects of the jurisprudence that might be said to provide the more appropriate means for the resolution of some Belfast Agreement disputes.
No Risk, No Fun? Should Spouses be Advised before Committing to Guarantees? A Comparative Analysis
Authors: Siems Mathias M.
Published: April 2022

The following paper will deal with the question of whether a spouse who grants a security for the business debts of the other spouse can escape liability because he or she has not been properly advised by the creditor. After an introduction into this topic (1), I will outline the legal position in English, Scots and German law (2). As for English and Scots Law, I will focus on the decisions of the House of Lords in Barclays Bank plc. v. O'Brien and Smith v. Bank of Scotland, and, as for German law, I will deal with the reasoning of a duty to advise and the decisions of the Bundesgerichtshof (German Supreme Court). In the second part of this essay the similarities and differences of these legal systems will be compared and interpreted (3). In particular, I will consider the practical results as well as the existing and lacking legal concepts of each legal system. In the last part I will expound my own opinion (4). In this context, it will be discussed whether the principles of good faith and culpa in contrahendo are sound and whether a duty to advise keeps the balance between the interests of guarantors and creditors. As a result, it is submitted that the answer to these questions is in the affirmative.
The Role of Judges in the Implementation of Social Policies
Authors: Adler Stephen
Published: April 2022

This article, based upon the author's general report to the 9th Meeting of European Labour Court Judges (ILO, Geneva, December 2001), discusses the role of Labour Court judges and Labour Courts in the implementation and development of social policy. After surveying the legal sources of social policy and a number of Labour Court ‘models’, comparative experience in various national systems is described and commented upon. The author contends that judges play an important role in the development of social policy, and suggests that, when dealing with issues in this field, Labour Court judges adhere to an agenda which differs from that of judges in the general courts. It is argued that the personal values, beliefs and experiences of judges influence their decisions regarding social policy issues, so that it is important for judges to recognize and articulate the factors influencing their decisions on such matters. To assist with this, the influence of the judge on social policy should be considered when individuals are appointed and trained to exercise their judicial role. The author further argues that Labour Courts can only make a significant contribution to the development of social policy if there is reasonable access to those courts, and that among the factors capable of furthering such access are the efficiency of, and the attitudes displayed by, Labour Court judges themselves. Finally, it is observed that, in an era of decreasing union density, Labour Courts increasingly provide the principal route for workers to enforce their rights, thereby underlining the key role of Labour Court judges in developing social law and furthering access to industrial justice as an important means for the protection of rights at work.
Implementation of EC Directives in Denmark
Authors: Nielsen Ruth
Published: April 2022

Denmark has made more use of the possibilities for implementing EC directives by means of collective agreements than most other EU countries. In this article the author discusses the Danish concept of a collective agreement in a comparative perspective and the lawfulness under Community law of the models for implementing EC directives that have been used in Denmark.