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7719 results in Intersentia

Page 302 of 386

  • Chapter 5 - Child Recruitment and Reparatory Justice: Recovery and Reintegration of War-Affected Children

  • Bo Viktor Nylund
  • Book:
    Child Soldiers and Transitional Justice
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    21 March 2016, pp 135-162

  • Summary

    “When we first came back, the people did not want us. But now it is OK. Now it is good. They like the projects we are doing for the village.”

    INTRODUCTION

    Reparatory justice is an integral part of transitional justice and builds on the obligation of states to make restitution whenever international legal obligations have been violated. The Basic Principles and Guidelines on the Right to a Remedy and Reparation, adopted by the UN General Assembly in 2006, form the basis of what today is considered a framework for reparations – defining that victims of human rights and humanitarian law violations have the right to “adequate, effective, prompt and appropriate remedies, including reparation.”

    In addition:

    Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one's place of residence, restoration of employment and return of property.

    The Basic Principles and Guidelines further state that compensation should consider the circumstances for each case and be provided in proportion to the severity of the violation.

    Reparatory justice includes many dimensions and forms: reparations, services, damages, remedies, redress, restitution, compensation, rehabilitation, official apology, tribute. In transitional contexts, reparatory justice enables recognition of individual rights violations and the harm that followed, and the fact that someone did wrong, in addition to a commitment for non-repetition of the crime. This element looks back at what the violations were, and even if it is not the same actor who repairs, the obligation remains. It also looks forward in a political and transitional sense, repairing so as to be able to move forward.

    Key legal questions that are covered in this chapter include:

  • – What does reparatory justice mean in the context of recruitment and use of children in armed conflicts? How can we ensure that reparations are in the best interests of the child?

  • – What legal protection is accorded to children ensuring that this element of transitional justice is accorded the necessary importance?

  • – What lessons have been learned from reparatory justice processes relevant to the recruitment and use of children, and how can those inform how this element fits into a broader transitional justice approach?

  • – Who repairs?

  • Chapter 3 - Child Recruitment and Criminal Justice: the Lubanga Case

  • Bo Viktor Nylund
  • Book:
    Child Soldiers and Transitional Justice
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    21 March 2016, pp 69-108

  • Summary

    “I want to take my baby home. I want my parents to help me with him, but am not sure what will happen when I get home.”

    INTRODUCTION

    The criminal justice element of transitional justice is a call to punish leaders of previous regimes and individuals for their wrongdoing. Criminal justice is oft en what people immediately relate to when speaking of transitional justice. Prosecutions aim to ensure that those responsible for committing crimes are tried in accordance with international standards of fair trial and, where appropriate, punished for crimes carried out.

    Key legal questions that are considered in chapter 3 include:

  • – Considering the current state of the art in turning the conscriptions (“forced”) and enlistment (“voluntary”) of children for use to participate actively in hostilities into an international crime, what are some of the implications of the recent Lubanga judgement?

  • – What is the role of criminal justice more broadly in bringing about change in the situation of children who are being conscripted and enlisted?

    • This chapter focuses on international criminal justice because it is the arena where the most detailed developments have taken place with respect to case law. International criminal justice from a post-conflict perspective has its roots in the Nuremberg trials, which brought about a substantial change in considerations of accountability, moving from collective to individual justice and from national to international processes. This was not to prioritize one method over another, but it was a new phenomenon at the time.

    A critical aspect of criminal justice is the concept of the presumption of innocence and a crime having been committed “beyond reasonable doubt.” Criminal justice in any jurisdiction is not just about the rights of the victim, but also about the rights of the alleged perpetrator; hence, this chapter aims to carefully consider the different perspectives and prudently weigh the arguments. This is also why it is so important that criminal law is predictable and specific, and that those who are in place to implement that law are well prepared to do so.

  • Chapter 4 - Child Recruitment and Historical Justice: the Security Council Mechanism on Monitoring and Reporting

  • Bo Viktor Nylund
  • Book:
    Child Soldiers and Transitional Justice
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    21 March 2016, pp 109-134

  • Summary

    “Could you please write a letter to Mr. Tamil Selvan [head of political wing in the LTTE] to tell him that he had made a mistake. He says all the children have come home, but he has forgotten my child. Please tell him to find my child and send her home.”

    INTRODUCTION

    Historical justice is about establishing the facts of what has occurred in the past in order to promote the most effective application of justice in the present. This element of transitional justice is oft en understood to relate to truth commissions, but it draws on several other activities, including those of the criminal justice processes for establishing the facts, distinct fact-finding exercises, and human rights investigations of diverse kinds.

    Chapter 4 primarily considers the outcome of the Security Council thematic focus on children and armed conflict as a contribution to historical justice. At the time of the establishment of the monitoring and reporting mechanism of the Security Council in resolution 1612 (2005), it was emphasized that the mechanism was established in order “to collect and provide timely, objective, accurate and reliable information on the recruitment and use of child soldiers in violation of applicable international law and on other violations and abuses committed against children affected by armed conflict.” This chapter offers an analysis of the value added by the information gathered through the mechanism and the subsequent conclusions made by the Security Council Working Group (SCWG) on children and armed conflict, as well as action plans developed with armed groups and forces for the release and reintegration of children within the international legal framework for the protection of children during armed conflicts. While the mechanism does much more than gather information, its ultimate purpose is to pave the way for informed action and political transformation in a context of transitional justice.

    While there are many options for how to establish the facts, the way that the facts are established and who is behind the fact finding make a great difference.

  • Chapter 8 - Conclusions: Transitional Justice and the Potential for Stronger Protection of the Rights of Children Involved in Armed Conflicts

  • Bo Viktor Nylund
  • Book:
    Child Soldiers and Transitional Justice
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    21 March 2016, pp 213-230

  • Summary

    “I hope my family wants me back.”

    INTRODUCTION

    The number of child soldiers appears to have decreased slightly during the past several years, due to solutions in some long-term conflicts and significant releases of children. This is no doubt partly the result of the consistent advocacy and action taken by actors in the different spheres of transitional justice. Recently escalating conflicts, however, have generated significant reports of new recruitments of children under varying degrees of coercion to be used by armed forces and groups to wage war. There is still significant work to be done: the 2014 report includes the listing of eight government forces and 51 armed groups.

    Approaching the issue of child recruitment from the perspective of transitional justice provides a fresh perspective on ways to prevent and redress this grave violation of children's rights. This approach aims to systematize the law, knowledge, and practice across a wide range of legal fields. It allows for a synthesis of legal debate, a greater understanding of the established law and principles, and a more informed basis for practical engagement with transitional justice mechanisms.

    This concluding chapter focuses on two main streams: (1) it undertakes a final legal analysis of the law related to child recruitment, and (2) it makes suggestions about the way forward and how the different aspects of transitional justice can more successfully come together.

    ANALYSING INTERNATIONAL LAW RELEVANT TO CHILD RECRUITMENT THROUGH THE TRANSITIONAL JUSTICE FRAMEWORK

    This section brings together the lessons from having used the transitional justice framework as the point of departure. It begins with an exploration of the outcomes of having used the framework and then considers the conclusions that can be made on the state of the art with respect to international law related to child recruitment.

    ADVANTAGES OF AN OVERALL FRAMEWORK

    The key advantage of looking at children's issues through the lens of transitional justice rather than a single area of law is that it is possible to consider the entire “life cycle” of the event of child recruitment, from root causes and prevention to the nature of the violation itself, along with the options and solutions to address the violation.

Child Soldiers and Transitional Justice
  • Protecting the Rights of Children Involved in Armed Conflicts
  • Bo Viktor Nylund
  • Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    21 March 2016
  • In a political climate that holds limited promise for addressing the issue of child recruitment, Child Soldiers and Transitional Justice: Protecting the Rights of Children Involved in Armed Conflicts challenges the trend towards a narrow focus on recruitment and use of the child, and seeks to contribute to more effective prevention and responses that offer the child a chance of recovery, reconciliation and reintegration. This book adapts existing theoretical frameworks of transitional justice in order to analyse child recruitment, with a view to demonstrating how a society can address the issue in a holistic way. It systematises relevant knowledge across a wide range of legal fields to allow for greater understanding of the law and principles, and a more informed basis for practical engagement with transitional justice mechanisms.Delving deep into the travaux préparatoires of each of the fundamental legal instruments, the author analyses their evolution, spanning humanitarian law, human rights law, criminal law, and other aspects of public law, including peace agreements and action plans developed with armed groups and forces. He provides a particular focus on and in-depth analysis of the Lubanga case, and its implications for other components of transitional justice. The findings highlight arguments for placing child recruitment firmly on the transitional justice agenda. By considering child recruitment against a transitional justice framework, the book allows a detailed understanding of the distinct but complementary components - rule of law, criminal justice, historical justice, reparatory justice, institutional justice, and participatory justice - and reveals the untapped potential in interactions between different areas of transitional justice.About the authorBo Viktor Nylund is a protection and legal practitioner who has focused on state and non-state actor responsibility and accountability throughout his career. Bo Viktor has Masters degrees in law and political science from Columbia University Law School and Abo Akademi University and a PhD in international law from the Geneva Graduate Institute for International Studies. He has served UNHCR, UNICEF and OHCHR and is currently UNICEF's Representative in Burundi.

  • Chapter 6 - Child Recruitment and Institutional Justice

  • Bo Viktor Nylund
  • Book:
    Child Soldiers and Transitional Justice
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    21 March 2016, pp 163-186

  • Summary

    If I were the president, I would talk to the rebel group leaders and build peace amongst the different ethnic groups. It does not make sense to fight this war.”

    INTRODUCTION

    Institutional justice considers reform of “public institutions that helped perpetuate conflict or repressive rule.” The laws and policies implemented through institutions at various levels are themselves the engine of change. Law can help distribute power more effectively and build or reform fair and efficient public institutions.

    While criminal sanctions are generally predicated on individual criminal responsibility, civil sanctions of an administrative nature are based on exclusionary conditions, chiefly of political loyalty, which, for example, systematically disqualifies certain groups of people from participation in the new government. But changes of an institutional and administrative nature may also be part of an overall effort to change the way institutions operate and interrelate. In the Secretary-General's report taking stock of progress made in the rule of law and transitional justice arenas, emphasis is placed on institution building that provides for greater levels of national ownership, more concerted efforts at sector-wide approaches, and more emphasis on initiatives to facilitate access to justice.

    Key legal questions that are considered in this chapter include:

  • – What does institutional justice signify in the context of the recruitment and use of children? What institutions are most important to safeguarding their rights?

  • – What areas of law in current contexts of child recruitment have developed during recent years, and how have they evolved?

  • – What role could business play in respecting and supporting children's rights within a context of child recruitment and transitional justice?

  • – What are the entry points in this otherwise big-picture area of transitional justice for issues related to children?

    • Much of what is implemented as part of institutional justice oft en has its beginning in early parts of the peace process, including ceasefire and peace agreements. An example of this type of transformation is the signing, in 2006, of the peace agreement for Darfur, where the Sudan Liberation Army leader became a vice-president as part of the peace agreement discussions.

  • Chapter 2 - Child Recruitment and the Rule of Law: International Law and the Prohibition against Recruiting and Using Children to Take Direct Part in Hostilities

  • Bo Viktor Nylund
  • Book:
    Child Soldiers and Transitional Justice
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    21 March 2016, pp 33-68

  • Summary

    I asked: “What were your duties as a child soldier in the movement?”

    He said: “I led some of the boys in the armed group who prepared tea and food, washed the cars, and carried our belongings.”

    I asked him: “What happened if those boys did not do what you told them to?”

    He replied: “You hit him with the Kalashnikov.”

    I asked him: “Would the commander do the same to you if he found out?”

    He replied: “Nobody asks and nobody would report on you. You hit him so hard that the others will not be impolite again.”

    I asked him: “If somebody older than you, like a commander, ordered you to do something you do not like, what do you do?”

    He replied: “If he is a senior commander, I will obey him; but if he is an ordinary person, I hold a Kalashnikov and he holds a Kalashnikov and the one who fires first will defeat the other.”

    INTRODUCTION

    The rule of law implies that there is a high predictability as to how known rules will be applied, as opposed to arbitrary action by government or non-state actors. The situations where child recruitment and use take place are inherently unstable, however, underscoring the considerable need to promote the overall elements of the rule of law in order to strengthen this aspect of transitional justice. This can present both challenges and opportunities, as there is scope to introduce new ways of looking at the issues.

    One great challenge is to determine what law prevails in a situation where there could be several options. In this regard, both ex post facto legislation and differences in application of the law due to the nature of the conflict or the actor involved in carrying out the violation must be taken into consideration – recognizing that the law of a previous regime may have shortcomings or there may be no law in place on the issue of concern.

    Chapter 2 considers the circumstances of the child's participation during a conflict and extends the focus to encompass the end result for the child, as well as the aim of prohibiting and redressing the act itself – regardless of the situation on the ground.

  • Chapter 1 - Objective, Scope, and Transitional Justice as an Analytical Framework

  • Bo Viktor Nylund
  • Book:
    Child Soldiers and Transitional Justice
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    21 March 2016, pp 1-32

  • Summary

    “I am opposed to the recruitment of any person under 18. I think it is dangerous for children like myself to join a movement or even government forces if you end up taking part in military operations. I believe that school is the natural place for any child, and when I get back home, I will pursue my education once again.”

    INTRODUCTION

    Following the first codification of the prohibition against child recruitment in international law in the late 1970s, the global debate about the recruitment and use of children in armed conflicts took on a new level of importance two decades later. The 1990s marked the first decade of implementation of programmes to “rehabilitate” children who had been involved in armed conflicts.

    The use of child soldiers is not a new phenomenon. Children have historically suffered disproportionately during war, and armed groups and forces have recruited children to serve in armed conflicts. But as international responses to providing for the recovery and reintegration needs of former child soldiers increased, the flow of information and awareness of this issue as a child rights violation led to a great deal of attention. As the focus intensified, approaches to ending the use of child soldiers evolved and diverged into separate actions by varying actors, not always consistently pulling in the same direction, yet all with the same aim in mind.

    This book offers an approach to establishing a coherent synthesis that will contribute to further protection of the rights of children in armed conflicts, building on developments through the spring of 2015. Chapter 1 outlines the overall objectives and scope, and the framework of analysis, and provides an introduction to the issue of child recruitment and how it entered the international legal and political debates.

    OBJECTIVE AND SCOPE

    Transitional justice is the organizing framework for this work on child soldiers, and an overall objective is to identify ways to enhance the response to address child recruitment.

    Since the 1980s, judicial and non-judicial approaches associated with a society's eff orts to come to terms with a legacy of abuses – the transitional justice mechanisms – have sought to address accountability, truth-seeking, institution building, and reconciliation and recovery among war-affected populations.

  • Chapter 7 - Children Involved in Armed Conflict and Participatory Justice: Balancing Rights and Responsibilities

  • Bo Viktor Nylund
  • Book:
    Child Soldiers and Transitional Justice
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    21 March 2016, pp 187-212

  • Summary

    “They made you chop off an arm or kill someone in your family, then they gave you drugs to make you feel better, and then you did not care and you killed many more people.”

    INTRODUCTION

    Participatory justice is an area of transitional justice that includes elements of administrative and constitutional justice, but it has recently been viewed as a distinct field deserving focused attention. Although this field could be seen as a cross-cutting theme in transitional justice settings, participatory justice requires separate consideration in the context of child recruitment.

    Participatory justice offers an opportunity for children to make a significant contribution to the various processes related to transitional justice. It is every child's right to be heard and to express her or his views and opinions, but participatory justice not only conveys rights to an individual child, it confers responsibilities.

    The topic of child recruitment offers a particularly interesting paradox in the field of transitional justice: while child recruitment is defined as a war crime, children themselves may perpetrate human rights violations while serving as child soldiers.

    Key legal questions that are considered in this chapter include:

  • – What does the law provide for more generally that can be applied to support children's participation in justice processes in a transitional justice context?

  • – What is the situation of children who have participated in the conflict and who may have carried out crimes while in the ranks of an armed group or force?

  • – In both those instances, what approaches are in the best interests of children and society as a whole, inclusive of protecting the rights of children while also considering their responsibilities?

    • It is critical to be clear about the objectives in the processes of participatory justice. Are we seeking ways and means through which children can recover and reintegrate, or looking for ways to hold children accountable? Do we want to warn future child soldiers against participating in armed conflicts? Or do we want to achieve all of the above? It is in the best interests of the child and the wider society that justice is approached with a view to restore and recover so that child soldiers are able to reintegrate.

  • Critical Remarks on the ADR Directive

  • from Part II - Norm-Setting and Enforcement
  • Edited by Caroline Cauffman, Jan M. Smits
  • Book:
    The Citizen in European Private Law
    Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    18 March 2016, pp 155-160

  • Summary

    Introduction: The Aims of the ADR Directive

    The Alternative Dispute Resolution Directive (the ADR Directive) aims to increase the consumer's access to justice. This is of course an honourable aim. The EU has a vast track record of creating directives which oblige Member States to offer a certain minimum level of consumer protection. Recently, it has moved to adopt consumer directives that introduce full harmonization as well as directly applicable regulations. This should ensure an identical level of consumer protection for consumers throughout the EU. When the mechanisms available to enforce these rights are not available to consumers because of high cost or complicated procedures, these consumers’ rights however remain highly theoretical. In the past, the EU already tried to overcome this problem through the Injunctions Directive under which Member States need to appoint institutions or organisations capable of bringing actions aimed at the cessation of illegal conduct towards consumers. However, these cessation actions only have a preventative aim: preventing future illegal conduct towards consumers. They provide no solution for the ex post resolution of disputes between an individual seller and an individual consumer.

    In this context, the ADR Directive aims to provide individuals and traders with access to a simple, fast and low-cost method of dispute resolution. This should result in a high level of consumer protection boosting consumers’ confidence in the internal market and should contribute to the proper functioning thereof. Whether it will reach these aims remains to be seen. Some of the weaknesses of the ADR Directive will be discussed below.

    The Weaknesses of the ADR Directive

    A first weakness of the ADR Directive is that it leaves it to the Member States to determine whether the participation of traders in ADR procedures is mandatory. This has the potential to undermine the envisaged level playing field for traders and is not conducive for consumer confidence in cross-border trade, which may ultimately be harmful for the internal market, contrary to the aims of the Directive.

    Secondly, the ADR Directive allows Member States to choose between ADR entities which propose or impose a solution or bring parties together with the aim of facilitating an amicable solution or a combination of these mechanisms. This too may lead to an uneven level playing field within the internal market.

The Citizen in European Private Law
  • Norm-setting, Enforcement and Choice
  • Volume 146
  • Edited by Caroline Cauffman, Jan M. Smits
  • Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    18 March 2016
  • In numerous fields of law, ranging from family law to company law, private actors increasingly set their own rules, revert to private enforcement of those rules and choose the applicable law. Within each field this tendency has already been scrutinised. Until now, however, few attempts have been made to look at these phenomena together with a view to arriving at conclusions that go beyond one specific field. This book is a first attempt to fill this gap. It is relevant for scholars and practitioners working in the individual fields of law covered (private international law, company law, family law, consumer law and commercial law) as well as for scholars and policy makers trying to grasp the overall nature of the increasing privatisation of the law.

  • Normative Frameworks in Commercial Dispute Resolution: The Role of Legal and Non-legal Norms in Mediation and Adjudication

  • from Part II - Norm-Setting and Enforcement
  • Edited by Caroline Cauffman, Jan M. Smits
  • Book:
    The Citizen in European Private Law
    Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    18 March 2016, pp 161-184

  • Summary

    Introduction

    When commercial actors enter into a transaction they aim to align their interests to achieve a mutually beneficial result. When a problem subsequently occurs in the performance of their transaction they will seek to resolve it with a view to maximising the value of the relationship. In the first place, they will seek resolution through cooperation in line with ordinary commercial practices and common-sense. If the parties are unable to resolve their conflicting interests together through negotiation, they may turn to other dispute resolution mechanisms that involve a neutral third party who will either assist the parties in creating a commercially-oriented solution, for instance through mediation, or who will decide on the dispute for the parties by enforcing legal rights, for instance through adjudication in the form of arbitration or litigation. These two forms of dispute resolution differ in nature and purpose. In mediation, a neutral third party – the mediator – intervenes to assist the parties in their attempt to reach a settlement agreement that preserves their transaction, salvages their on-going business relationship, and avoids escalation of their conflict into a legal dispute. In contrast, when parties pursue resolution of their dispute through adjudication, they seek strict enforcement of their legal rights laid down in their contract. The court or arbitral tribunal will assess the relative strength of the conflicting legal positions on the basis of an application of the legal norms applicable to the contractual relation. Although adjudication will lead to a resolution of the dispute, it will often have a destructive effect on the on-going business relationship between the parties.

    From this brief introduction, it can be seen that these two approaches to dispute resolution have different objectives. Whereas mediation aims at a solution that meets the parties’ commercial interests and expectations; adjudication leads to the settlement of a legal dispute. Due to their different nature and function, they therefore tend to give priority to different normative frameworks. Adjudication occurs entirely on the basis of the legal framework constituted by the law and the contract, while mediation, as a problem-solving process, allows a broader range of considerations to shape the outcome and thus incorporates norms and practices from other, non-legal frameworks.

  • Preface

  • Edited by Caroline Cauffman, Jan M. Smits
  • Book:
    The Citizen in European Private Law
    Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    18 March 2016, pp xv-xvi

  • Summary

    It is not a particularly surprising revelation that the citizens of the European Union are often not aware of the rights that they have, nor of the possibilities to enforce these rights. This was a reason for the European Commission to declare 2013 the ‘European Year of Citizens.’ The explicit aim of both the Commission and the European Parliament was – twenty years after the establishment of European Union citizenship under the Maastricht Treaty – to boost the idea of EU citizenship and to develop strategies to better inform European citizens about their rights. It was in this context that the Faculty of Law of Maastricht University decided to initiate a number of events around this ‘Year of Citizens.’ One of these events was devoted to the role of private actors (meaning: citizens, consumers and companies) in normsetting, enforcement and choice of law. It took the form of a conference entitled ‘The Citizen in European Private Law’, organised on 18 October 2013 in cooperation between the Maastricht European Private Law Institute (MEPLI) and the Maastricht Institute for Corporate Law, Governance and Innovation Policies (ICGI). Caroline Cauffman, Mieke Olaerts and Jan Smits were able to take care of the practical organisation thanks to the highly proficient help of Marina Jodogne and Marjo Mullers. Damla Cavusoglu and Lotte Meurkens wrote an elaborate report on the conference that was published in the European Review of Private Law 22 (2014), p. 469-480.

    This volume contains most of the contributions that were presented at the conference, together with some new articles. Its structure reflects the wish of the editors to look at citizen empowerment from a thematic perspective and not from the viewpoint of separate fields of law. Thus, part I looks at choice and regulatory competition in both company law and family law, while part II considers norm setting and enforcement in consumer law, commercial law and family law. The introduction to this volume explains the set-up in more detail.

    We would like to thank Marina Jodogne, Eve Meurgey, Alina Anapyanova and Christopher Mondschein for essential help in preparing this volume. We also acknowledge the financial support received from the University Fund Limburg/SWOL and from the Faculty of Law of Maastricht University to organise the conference.

  • Corporate Mobility in the European Union – An Analysis of Ringe's Empirical Research on the Success of Law Making and Regulatory Competition

  • from Part I - Choice and Regulatory Competition
  • Edited by Caroline Cauffman, Jan M. Smits
  • Book:
    The Citizen in European Private Law
    Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    18 March 2016, pp 91-96

  • Summary

    Introduction

    Freedom of establishment as enshrined in Articles 49 and 54 TFEU entails the right to set up companies and firms, as may subsidiaries and branches throughout the European Union. Since a number of cases having resulted in preliminary CJEU rulings entrepreneurs in the EU are free to select ‘foreign’ legal business formats to govern their company affairs. Thus, a legal person may be set up according to the laws of EU Member State A, the company's headquarters (and, usually, the main, or as it may occur, even all economic activities) however being established in EU Member State B (e.g. a German business entrepreneur incorporating a UK Ltd., the headquarters of that Ltd. residing in German territory).

    Ringe's research concentrates on English company law ‘formats’, notably the UK private limited liability company (Ltd.), being preferred over German company types (‘regulatory competition’) by German start-ups over the past decade and the effects of the ‘response’ thereto by German legislator (‘law making’). Ringe starts his empirical research by observing that pursuant to CJEU judicature English limited companies were indeed very popular with German entrepreneurs in the first few years of the last decade but experienced a sharp decline from early 2006 onwards. In his view this temporal fixation casts justified doubts over the so far nevertheless hardly contested claim that the posterior German company law reform (November 2008) ‘successfully fought off’ the use of foreign company forms. He further notices that Austria shows a parallel development – the rise and fall of popularity of foreign, notably English private limited liability companies – quite remarkably a company law reform in Austria however being absent. Ringe perceives that there must be other, possibly complementary explanations for the paralleled and rather striking developments in both Germany and Austria. His findings are highly intriguing and give rise to a few side comments.

    Side Comments

    As a more or less preliminary remark: any attempt to trace motives underlying businessmen's preference to make use of a UK Ltd. rather than of a ‘domestic’ limited liability company type might be blurred by ‘non-rational’ and therefore concealed incentives that become known to the outer world on the off-chance only. In the ECJ Segers case, for instance, a Dutch businessman still opted for a UK ‘Ltd.’ to ‘impress’ the outer world (‘fashionable’), as was shown by documents (e.g. the Opinion of AG Darmon) underlying this case.

  • Enchained Marriages: Is there a Way out?

  • from Part II - Norm-Setting and Enforcement
  • Edited by Caroline Cauffman, Jan M. Smits
  • Book:
    The Citizen in European Private Law
    Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    18 March 2016, pp 133-140

  • Summary

    Introduction

    In October 2013, many were surprised by the news that two American rabbis forced at least 50 men at gunpoint to divorce their wives. As such, this is not an unusual behaviour: gunpoint marriages and gunpoint divorces are well known throughout American legal history. But seemingly not only in the United States, in July of that year a Karachi Muslim claimed that his in-laws forced him at gunpoint to divorce his wife by talāq.

    Why do people use criminal acts to force somebody to perform certain acts of family law? Is in their opinion such a family act of greater importance than noncriminal behaviour?

    According to Jewish law, divorce is realised by the handing over of a divorce letter, the get, which the man ‘by his own free will’ has to transmit in the hands of his wife. According to Jewish law ‘by his own free will’ does not mean: ‘at his own discretion’, but ‘obeying the Torah’. But as the Torah leaves the man wide discretion in the choice of whether or not to divorce his wife, it often means that for a long time the wife will be caged in a de facto dead marriage. Such a Jewish wife is called an agunah, an enchained woman. She is, in my view and that of many others, in a morally unacceptable position, especially since according to the Torah she, from her side, has barely any opportunity to end her marriage.

    In Islamic law, divorce law is less uniform. Shari'a divorce law differs between the different schools of Islamic law, in which the Islamic world is divided intellectually and geographically. As in many if not all religions, in Islam men are much better off than women. Although all Shari'a schools allow a man to dissolve his marriage unilaterally by talāq, and fully at the man's discretion, many schools include a number of grounds for divorce that are open to the wife while others schools of Islam, like the Hanafi school that prevails in e.g. Pakistan, are really very restrictive in their options for women to divorce.

    But why should we, as members of a secular society, make a fuss about religious law? The French revolution introduced the secular state principle with its separation of state and church. Since then state law should not interfere with religious law nor be bothered by religious law.

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