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Adaptive Governance of River Deltas Under Accelerating Environmental Change. Utrecht Law Review Pub Date : 2022-01-01 Mandy Paauw,Murray Scown,Annisa Triyanti,Haomiao DU,Ahjond Garmestani
Many deltas are increasingly threatened by environmental change, including climate change-induced sea-level rise, land subsidence and reduced sediment delivery. Dealing with these challenges is a pressing necessity because deltas are home to many people and are important centres for economic and agricultural development. Successfully adapting to climate change requires a social-ecological system (SES)
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Judicial Change to the Law-in-Action of Constitutional Review of Statutes in Poland Utrecht Law Review Pub Date : 2022-01-01 Piotr Radziewicz
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Party Autonomy Under the New Brussels IIa (Recast) Regulation: Stalemates and Innovation Utrecht Law Review Pub Date : 2022-01-01 Jacqueline Gray
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The Dutch Complaint Procedure: A “Picture-Perfect” Procedure? Utrecht Law Review Pub Date : 2022-01-01 Tessa Van Der Rijst,Pauline Jacobs
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Colonialism, Context and Critical Thinking: First Steps Toward Decolonizing the Dutch Legal Curriculum Utrecht Law Review Pub Date : 2022-01-01 Alison Fischer
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Roadmap on Comparative Law in the Case-Law and Practice of the Supreme Courts of the EU Utrecht Law Review Pub Date : 2021-05-26 Maarten Feteris
This document was developed following research and debates of the Network of Presidents of the Supreme Judicial Courts of the European Union. The document is intended to support the courts in this network in a practical way when considering and implementing the use of comparative law in the decision of a case pending before their court. Without pretention of completeness or scientific reliability,
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Addressing a Crisis through Law: EU Emergency Legislation and its Limits in the Field of Asylum Utrecht Law Review Pub Date : 2021-01-01 Salvatore F. Nicolosi
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The Erosion of Borderless Norden? Practices and Discourses on Nordic Border Restrictions in Finland and Sweden during the Covid-19 Pandemic Utrecht Law Review Pub Date : 2021-01-01 Saila Heinikoski,Tatu Hyttinen
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Crying Wolf Too Many Times: The Impact of the Emergency Narrative on Transparency in FRONTEX Joint Operations Utrecht Law Review Pub Date : 2021-01-01 Mariana Gkliati,Jane Kilpatrick
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Editorial for the Impact of the Covid-19 Pandemic: Shortcomings and Strengths of the EU Legal System in Selected Policy Domains Utrecht Law Review Pub Date : 2021-01-01 Sybe de Vries
This special issue on the Covid-19 Pandemic in European Union: shortcomings and strengths of the EU legal system in selected policy domains begins with two contributions that deal with the uncertain health risks caused by Covid-19, the first one and the application of precautionary principle in practice, and the second one on the growing problem of 'onslaught of health disinformation'. The next two
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Crises, Creditors and Cramdowns: An evaluation of the protection of minority creditors under the WHOA in light of Directive (EU) 2019/1023 Utrecht Law Review Pub Date : 2021-01-01 Hidde Volberda
Covid-19 has severe economic consequences, leading to an increasing amount of businesses facing overwhelming debts. Since the financial crisis of 2008 the European Union has taken on a more rescue-oriented approach towards bankruptcy, resulting in Directive (EU) 2019/1023. This Directive creates a framework for pre-insolvency restructuring, thereby avoiding unnecessary bankruptcies. Accordingly, pre-insolvency
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Models of Solidarity in the EMU. The Impact of COVID-19 After Weiss Utrecht Law Review Pub Date : 2021-01-01 Ton van den Brink,Matteo Gargantini
Right in the middle of the Covid-19 pandemic, the German federal constitutional court (Bundesverfassungsgericht – FCC) issued a ruling that sent massive shockwaves through the continent. Not only did the Court question the legality of the European Central Bank’s bond buying program PSPP (Public Sector Purchase Program), but it also rejected the earlier decision by the CJEU in which this latter had
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The Rule of Law from Below – A Concept Under Development Utrecht Law Review Pub Date : 2021-01-01 Antoine Buyse,Katharine Fortin,Brianne McGonigle Leyh,Julie Fraser
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The Role of Universities and Law Schools in Documenting Serious International Crimes and Advancing the Rule of Law Utrecht Law Review Pub Date : 2021-01-01 Brianne McGonigle Leyh
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‘Mind the (Knowledge) Gap’: Towards a Criminal Duty to Report Child Sexual Abuse? Utrecht Law Review Pub Date : 2021-01-01 Renée Sharon Barbara Kool,Senna Kerssies,Tessa van der Rijst
Over the past few decades, child sexual abuse (‘CSA’) has become recognized as a serious and major problem in modern societies. Consequently, a common denominator in modern government policy is that CSA must be criminalized and pro-actively enforced. However, if national authorities are to be able to enforce, knowledge about the abuse is essential. Yet the disclosing of information to the authorities
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Role of the Industry in the Enforcement of the Tobacco Policy Utrecht Law Review Pub Date : 2021-01-01 Stanisław Tosza
Tobacco products are heavily regulated because, in particular, of their acknowledged harmfulness to health, with highly elevated prices as one of the most important means of discouraging consumption. One of the most serious threats to the effectiveness of the tobacco policy comes from the trafficking of illicit tobacco, which is much cheaper, often of lower quality, and which reduces state and EU revenues
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Mobility in a European Post-Crisis Scenario: Law-Making Dynamics and Law-Enforcement Challenges Utrecht Law Review Pub Date : 2021-01-01 Veronika Nagy,Salvatore F. Nicolosi
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Fundamental Social Rights Protection and Covid-19 in the EU: Constraints & Possibilities Utrecht Law Review Pub Date : 2021-01-01 Barbara Safradin,Sybe de Vries,Simona de Heer
The Covid-19 pandemic has had major socio-economic consequences, particularly for critical workers such as healthcare workers, seasonal workers and platform workers in their social rights enjoyment. This article analyses how EU law could protect social rights in times of Covid-19, with a specific focus on the possibilities and limits of the EU Charter in times of crisis for these certain categories
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Competition Law and the COVID-19 Pandemic – Towards More Room for Public Interest Objectives? Utrecht Law Review Pub Date : 2021-01-01 Małgorzata Kozak
The article aims at analysing activities of the European Commission and the national competition authorities of the Member States of the European Union in response to the Covid-19 outbreak. This analysis is carried out in the light of the objectives of EU competition law. The specific research question of this article is whether the competition law framework is sufficiently resilient to the current
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Of Interactionality and Legal Universes: A Bottom-Up Approach to the Rule of Law in Armed Group Territory Utrecht Law Review Pub Date : 2021-01-01 Katharine Fortin
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The Role of Civil Society in Protecting Judicial Independence in Times of Rule of Law Backsliding in Poland Utrecht Law Review Pub Date : 2021-01-01 Barbara Grabowska-Moroz,Olga Śniadach
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UN Peace Operations and the Role of the Local in (Re)Building the Rule of Law Utrecht Law Review Pub Date : 2021-01-01 Alexander Gilder
UN peace operations undertake a broad array of rule of law activities aiming to rebuild the justice system and end impunity. Rule of law activities in UN peace operations have matured over the last 20 years since the UN experiments with statebuilding in Kosovo and East Timor. Today, rule of law activities can often clearly be seen to advance the broader goal of establishing the host state as the legitimate
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The Role of Civil Society in Monitoring the Executive in the Case-Law of the European Court of Human Rights: Recasting the Rule of Law Utrecht Law Review Pub Date : 2021-01-01 Aikaterini Tsampi
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Travelling with Judges: Brief Reflections on the Roadmap on Comparative Law Developed by the Network of Presidents of the Supreme Judicial Courts of the European Union Utrecht Law Review Pub Date : 2021-01-01 Elaine Mak
This article accompanies a Roadmap on the judicial use of comparative law, which was developed by judges from different European supreme courts. This document is published in this issue of Utrecht Law Review. Brief reflections on relevant scholarly aspects help the reader to appreciate the meaning and value of this Roadmap for contemporary judicial functioning in Member States of the European Union
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Non-Retroactivity as a General Principle of Law Utrecht Law Review Pub Date : 2021-01-01 Yarik Kryvoi,Shaun Matos
This article examines the principle of non-retroactive application of law, which prohibits the application of law to events that took place before the law was introduced. The application of this principle has become particularly controversial as states adopt stricter regulations to tackle climate change with retroactive effect, and investors challenge such regulations before international courts and
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Regulation of EU Labour Migration: At a Crossroads after the New Pact on Migration and Asylum? Utrecht Law Review Pub Date : 2021-01-01 Paul Minderhoud
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Cross-Border Police Cooperation and ‘Secondary Movements’. On Reconfigurations in Enforcing Differential Mobility Rights within the Spatial-Legal Schengen Space Utrecht Law Review Pub Date : 2021-01-01 Monika Weissensteiner
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The Administrative Precautionary Approach at the Time of Covid-19: The Law of Uncertain Science and the Italian Answer to Emergency Utrecht Law Review Pub Date : 2021-01-01 Emiliano Frediani
The health emergency linked to Covid-19 brought to the fore the problem of the usefulness and correct application of the precautionary principle. In the paper proposed for the call, the topic will be analyzed starting from the foundations of the precautionary principle, to see consequently how it must be ‘handled’ in practice when the Administration (in the Italian fight against the pandemic, the Government
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Stopping a Virus from Moving Freely: Border Controls and Travel Restrictions in Times of Corona Utrecht Law Review Pub Date : 2021-01-01 H. van Eijken,J.J. Rijpma
One year down the road, this article evaluates the travel restrictions imposed in response to the Covid-19 pandemic, first, in the light of the rules of the Schengen acquis (controls at the internal and external borders) and, second, under the provisions on the free movement of EU citizens. It will be argued that, as often is times of crisis, the existing legal framework has proven inadequate to respond
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Will Requirements for Last Wills Remain as They Are? The ‘Physical Presence Requirement’ of Witnesses and Notaries in the Light of the COVID-19 Interim Measures and the EU Freedom of (Notarial) Services Utrecht Law Review Pub Date : 2021-01-01 J. W. A. Biemans
The COVID-19-crisis has exposed the shortcomings of formal requirements for legal acts which involve the physical presence of others. This is in particular true with regard to last wills which require the physical presence of a notary and/or witnesses, who have to authenticate and/or attest to the last will of the testator. In such cases, the physical presence requirement imposes an outright obstruction
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EU Solidarity, Illustrated by the Covid-19 Crisis Utrecht Law Review Pub Date : 2021-01-01 Anne Joppe
Solidarity between the Member States of the EU is mostly called upon during times of crisis, as also now during the Covid-19 pandemic. In this article, the definition and importance of solidarity is studied with a focus on the internal market. It appears that solidarity does not have one unequivocal meaning, but that its importance and value depend per EU policy area. Yet, it is noteworthy that elements
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The Historical and Present-Day Role of Non-Governmental Organisations before the Inter-American Human Rights System in Documenting Serious Human Rights Violations and Protecting Human Rights and the Rule of Law Through Ensuring Accountability Utrecht Law Review Pub Date : 2021-01-01 Clara Burbano Herrera,Yves Haeck
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The Platform for the Protection of Journalists: A Mechanism for Cooperation between Non-Governmental Organisations and the Council of Europe Utrecht Law Review Pub Date : 2021-01-01 Ana Gascón Marcén
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A Right to Have One’s Case Heard within a Reasonable Time before the Czech and the Polish Supreme Administrative Courts – Standards, the Reality and Proposals for the Future Utrecht Law Review Pub Date : 2021-01-01 Wojciech Piątek,Lukáš Potěšil
The right to have one’s case heard within reasonable time constitutes one component of an effective judicial protection. The aim of this paper is to establish the reasons for delays in proceedings before the Supreme Administrative Courts in the Czech Republic and in Poland, to analyze why they exist, and to formulate proposals on how the structural and procedural activity of these courts could be organized
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Constitutionalising a Human Right to Water in the Southern African Development Community Utrecht Law Review Pub Date : 2020-01-01 Michelle Barnard
At present no binding human rights instrument referring to an explicit right to water exists within the Southern African Development Community’s (SADC) human rights legal framework. There are, however, implicit references to such a right within a number of SADC policy documents, and three Constitutions of SADC member states (South Africa, Zimbabwe and the Democratic Republic of the Congo) explicitly
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Exploring the Road to Justiciability of the Human Right to Water in Suriname Utrecht Law Review Pub Date : 2020-01-01 Daphina Misiedjan
In Suriname, the national percentage of population with access to safe drinking water is 72.6 percent and shows that even though Suriname has great wealth in water resources, not everyone is benefiting from it. From a human rights perspective, states carry the responsibility for realizing the human right to water and follow the authoritative interpretation by ensuring that everyone has ‘sufficient
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The Impact of a Human Right to Water on the Sustainable Balance of Water Uses under the UN Watercourses Convention Utrecht Law Review Pub Date : 2020-01-01 Antoinette Hildering
This article sets the global scene for the regional and local levels elaborated upon by articles later in this special issue by addressing the following research question: What is the impact of a human right to water on the sustainable balance of water uses under the customary international water law principle of equitable and reasonable utilization as codified in the UN Watercourses Convention? In
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The Sustainable Human Right to Water as Reflected in the Sustainable Development Goals Utrecht Law Review Pub Date : 2020-01-01 Otto Spijkers
In Sustainable Development Goal 6 (SDG6), also known as the ‘water goal’, one finds various (implicit) references to the internationally recognized human right to water. The aim of this paper is to further explore those linkages. More specifically, the main research question is the following: in what way does SDG6 facilitate local level implementation of the international human right to water, and
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Localizing the Human Right to Water in Lagos State, Nigeria Utrecht Law Review Pub Date : 2020-01-01 Pedi Obani
Nigeria’s water sector is characterised by abysmal network coverage despite significant natural water resources potential. Most of the water sector reforms across the country encourage private sector participation in service delivery, to improve quality and efficiency. Early attempts at water privatization in Lagos State, a pioneer for water sector reforms in Nigeria, have met with stiff opposition
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The Right of Access to Water in the Context of Investment Disputes in Argentina: Urbaser and Beyond Utrecht Law Review Pub Date : 2020-01-01 Yulia Levashova
The privatisation of water through foreign investment has become a common occurrence throughout the world. In developing economies like Argentina, many people depend on their water supply from private companies, including foreign investors. Using Argentina as a case study, this article analyses of how the human right of access to water is applied and interpreted in international investment law. To
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Participation in the Implementation of the Human Right to Water in Tunisia Utrecht Law Review Pub Date : 2020-01-01 Tobias Schmitz,Bas Rensen
This article analyses the implementation of the human right to water in Tunisia, focusing on the procedural indicator on ‘participation’. The article looks at the functioning of local Water User Associations as the lowest institutional level of water management and reviews theperformance criteria for participation within these associations as applied by the Tunisian government against the background
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Human Right to Water in the Helmand Basin: Setting a Path for the Conflict Settlement between Afghanistan and Iran Utrecht Law Review Pub Date : 2020-01-01 Farnaz Shirani Bidabadi,Ladan Afshari
There is a long-standing dispute between Iran and Afghanistan over the Helmand River. In recent years, between 2002 and 2013, the access to water of the population living in the river basin in Iran has been adversely affected. As the human right to water is recognized at the international level, this paper aims to study the national implementation of the human right to water in both countries. It analyzes
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Realising the Human Right to Water in Costa Rica through Social Movements Utrecht Law Review Pub Date : 2020-01-01 Gabriela Cuadrado-Quesada
This article examines human rights from the perspective of social constructions and as the result of historical processes. This means that human rights, as we know them today, are the result of dynamic and historical struggles. This is no different with regard to the human right to water. In particular, this article addresses the following research question: how interwoven are social movements with
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Editorial for Localising the Sustainable Human Right to Water Utrecht Law Review Pub Date : 2020-01-01 Otto Spijkers,Daphina Misiedjan,Candice Foot,Marleen van Rijswick
This Special Issue on Localising the Sustainable Human Right to Water begins with contributions focused on a global and more general perspective. These contributions provide a general introduction to the topic of the sustainable human right to water. It then shifts perspective to provide regional contributions, and finally zooms in to contributions focused on the implementation of this right at the
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The Special Rapporteur on the Human Rights to Safe Drinking Water and Sanitation: An Assessment of Its First Dozen Years Utrecht Law Review Pub Date : 2020-01-01 Henry F. Carey
The Special Rapporteur for Safe Drinking Water and Sanitation is a norm entrepreneur, both as a norm monitor and clarifier, as well as an advocate for reparative action for victims. Two incumbents have identified fundamental principles of these two human rights and many implementation requirements for their protection. Appropriate attention has been placed on various vulnerable groups that require
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How the European Citizens’ Initiative ‘Water and Sanitation is a Human Right!’ Changed EU Discourse on Water Services Provision Utrecht Law Review Pub Date : 2020-01-01 Jerry van den Berge,Rutgerd Boelens,Jeroen Vos
In 2010 the United Nations General Assembly recognized the human right to water and sanitation in what is seen as a historical vote by water activists. Implementation of the right to water is imperative to achieve sustainable development. In 2011 the regulation for a European Citizens’ Initiative (ECI) entered into force in the European Union. With such an initiative it is possible to propose an issue
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The Human Right to Water and the Realisation of Water Rights in the Occupied Palestinian Territory Utrecht Law Review Pub Date : 2020-01-01 Ahmed Beshtawi
This article seeks to assess the role of the human right to water in realising water rights in the scenario of the Occupied Palestinian Territory (OPT). In particular, it seeks to answer the question of the extent to which the human right to water protects Palestinians’ water rights in the OPT. In doing so, the article will start by analysing the human right to water and the related obligation it imposes
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The use of non-domestic legal sources in Supreme Court of Canada judgments: Is this the judicial slowbalization of the court? Utrecht Law Review Pub Date : 2020-01-01 Klodian Rado
Observed from the perspective of citation of foreign judgments, the Supreme Court of Canada (SCC) is often considered one of the world’s most cosmopolitan and proactive actors in transnational judicial conversation. However, there are also other forms of non-domestic legal sources that Courts engage with, such as: foreign law, international case law, and international treaties. Hence, the ‘globalist’
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An intuitive approach to hard cases Utrecht Law Review Pub Date : 2020-01-01 Tomasz J. G. Zygmunt
The article proposes an intuitive approach to the so-called ‘hard cases’ in law as an alternative to traditional legal-theoretical accounts of this phenomenon. The main thesis of the intuitive approach is that all judgments and decisions made in a legal setting – including both legal practice and legal theory – are intuition-based. Hence, conceptualizations of legal phenomena can be made more accurate
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Is revision of the council of Europe guidelines on electronic evidence already needed? Utrecht Law Review Pub Date : 2020-01-01 Remigijus Jokubauskas, Marek Świerczyński
On 30 January 2019 the Council of Europe adopted the first guidelines on electronic evidence in civil and administrative proceedings (hereinafter also ‘Guidelines’).1 The authors question if the Guidelines already require some revisions. They also consider, whether the revised Guidelines should provide more practical advice to courts and legal practitioners related to electronic evidence. Several aspects
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Importance of judicial decisions as a perceived level of relevance Utrecht Law Review Pub Date : 2020-01-01 Terezie Smejkalová
Studies employing network analysis to reveal hidden mechanisms in judicial decision making, both in common law as well as civil law countries often use rather vague concepts of ‘importance’ of judicial decisions, concepts that are not always thoroughly explained, tend towards certain relativity and are used together with other similar words [(legal) relevance, (legal) significance…], with or without
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Clear skies or turbulence ahead? The international civil aviation organization’s obligation to mitigate climate change Utrecht Law Review Pub Date : 2020-01-01 Baine P. Kerr
The International Civil Aviation Organization (ICAO) set a cap for international aviation’s greenhouse gas (GHG) emissions at its 2020 level and established a market-based mechanism to help achieve that cap. Against that backdrop, this article identifies ICAO’s legal obligation to mitigate climate change by examining the international climate change treaties, ICAO’s constituent treaty, the Chicago
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Divided but harmonious? The interpretations and applications of article 31(3)(c) of the vienna convention on the law of treaties Utrecht Law Review Pub Date : 2020-01-01 Ivo Tarik de Vries-Zou
In response to an anxiety about the multiplication of special regimes, international lawyers looked towards Article 31(3)(c) of the Vienna Convention of the Law of Treaties to help sustain the unity of international law. Suppose though that the provision is as susceptible to fragmentation as any other rule; its interpretation and application may fall victim to the narrow interests of the regimes it
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The Application of Sharīʿah Finance Rules in International Commercial Arbitration Utrecht Law Review Pub Date : 2020-01-01 Ahmad Q. Farah, Rasha M. Hattab
Due to its flexibility, speed and confidentiality, arbitration becomes the most attractive method for contracting parties to resolve their commercial disputes. This method of choice has developed gradually in the modern legal system of Islamic Countries (ICs) over the last three decades. Thus, many of individual countries have enacted their own arbitration regulations and ratified the relevant international
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Experimental legal methods in the classroom Utrecht Law Review Pub Date : 2020-01-01 Arthur Dyevre, Michal Ovádek
As legal research and scholarship are increasingly turning to interdisciplinary approaches, the question arises as to how to introduce quantitative research techniques to a student population usually unfamiliar with empirical methods. We argue that classroom experiments form an effective — and, from the perspective of students, attractive — way to teach law students the logic of empirical inquiry.
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Environmental Criminal Enforcement in Poland and Russia: Meeting Current Challenges Utrecht Law Review Pub Date : 2020-01-01 Denis Solodov, Elżbieta Zębek
Environmental criminal law provides for measures targeting the most serious environmental offences and improving the enforceability of environmental provisions. In the article, environmental criminal law provisions in Poland and Russia are analyzed and compared. The changes introduced by the Council Directive 2008/99/EC on the protection of the environment through criminal law have a significant impact
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Equal Treatment of Mobile Persons in the Context of a Social Market Economy Utrecht Law Review Pub Date : 2019-09-04 Catherine Jacqueson, Frans Pennings
Free movement of persons is a fundamental freedom and equal treatment its necessary corollary. Yet, both principles have come under pressure in the past decades. This article investigates three forms of mobility within the European Union (EU): workers, economically inactive persons and posted workers. In respect of all three categories, there is a tension between social and market interests, which
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The Relevance of the Concept of the Social Market Economy: Concluding Observations on the Contributions in this Special Issue Utrecht Law Review Pub Date : 2019-09-04 Frans Pennings
This article discusses the contributions of this Special Issue on the relationship between social and economic values and rights. It shows that the contributions are illustrative of the various ways in which the social market economy concept is, and could be, approached. In preparation for this Special Issue, several meetings and a work conference were organised, in which drafts of the contributions