This research considers the development of the concept of insolvency close-out netting under the laws of England, France and the US, as representative of common law, civil law and eclectic systems... Show moreThis research considers the development of the concept of insolvency close-out netting under the laws of England, France and the US, as representative of common law, civil law and eclectic systems respectively. It concludes that the legal systems of these jurisdictions have influenced the recognition of insolvency close-out netting with varying degrees. English common law has exerted the most influence whilst the French regime is most ready to develop according to market practices notwithstanding the precepts of civil law. The US legal system exerts a more balanced influence. These conclusions are based on preliminary replies to three sub-questions, namely (i) whether the development of close-out netting in these jurisdictions has been influenced by national set-off rules, (ii) whether the recognition given to close-out netting provisions has been affected by the norms of national insolvency laws and state insolvency goals, and (iii) whether, following the global financial crisis of 2008 – 2009, a convergence can be noted in the restrictions imposed on the recognition of close-out netting provisions under their national resolution regimes. The choice of the research question serves to map the national netting regimes of England, France and the US in a global perspective. It seeks to examine from various perspectives the adaptability and amenability of their national law regimes to accommodate this important contractual provision and serves to demystify stereotypes which have come to be associated with certain jurisdictions in their approach and readiness to uphold creditors’ rights. Show less
First introduced in the legal literature, the concept of 'outward appearance' (uiterlijke verschijningsvorm) was recognized by the Supreme Court in 1978. Both in legal literature and in case law,... Show moreFirst introduced in the legal literature, the concept of 'outward appearance' (uiterlijke verschijningsvorm) was recognized by the Supreme Court in 1978. Both in legal literature and in case law, the concept was initially developed within the framework of the doctrine of punishable attempt (regulated in article 45 of the Dutch Criminal Code (DCC)). From 2003 onwards, the concept was transferred to the context of other doctrines, such as those relating to ‘conditional intent’/dolus eventualis (voorwaardelijk opzet) (which has no statutory regulation in the Netherlands), punishable preparatory acts (regulated in article 46 DCC) and self-defence (regulated in article 41 DCC). As this concept is used in the context of doctrines which form the core of substantive criminal law, its use can have substantial consequences for the scope of criminal liability. But what is the concept of 'outward appearance' actually and what are these consequences? By analysing the case law of the Supreme Court this research tries to answer these questions. It shows that the concept is linked with the ‘finality doctrine’ (finale handelingsleer). At the same time, it becomes clear that the Supreme Court has nowhere fully embraced this doctrine. Show less
This dissertation investigated what the legal framework for recognition of foreign bank resolution actions should be. It aims to fulfil the current gap in legislative actions and scholarly research... Show moreThis dissertation investigated what the legal framework for recognition of foreign bank resolution actions should be. It aims to fulfil the current gap in legislative actions and scholarly research on the issue of cross-border bank resolution and attempts to formulate rules that would facilitate resolution actions effective across borders so as to achieve the ultimate goal of a global orderly resolution for banks. This dissertation conducts both normative and positive analysis and compares three jurisdictions, namely, the European Union, the United States and China. Building on the traditional legal doctrines of private international law, financial law and insolvency law, this dissertation proposes ten principles that should apply in recognition of foreign bank resolution actions. Show less
This study on regulatory compliance in the logging sector in Ghana, attempts to understand how and why the key logging actors in the Ghana’s timber industry (i.e., licensed logging firms and... Show moreThis study on regulatory compliance in the logging sector in Ghana, attempts to understand how and why the key logging actors in the Ghana’s timber industry (i.e., licensed logging firms and chainsaw operators) respond to regulations in the sector and the extent to which the Forestry Commission, the main state regulatory institution, enforces these regulations to ensure compliance.For licensed logging firms, the study found that economic gains and societal pressures including demands from the local communities for developmental assistance and illegal activities of chainsaw operators influenced them to violation. Contrary, deterrence from third party non-state actors, particularly the EU market actors and forest certification bodies produced better compliance than the state sanctions. Also, for some firms, it was their religious beliefs including hope in eternal life, rather than deterrence from the state or non-state actors, that motivated them to comply. Regarding chainsaw operators, the violating activity was basically poverty-driven in the sense that it provides them with livelihood support. It also accounts for the bulk of lumber consumed locally and attracts low sanctions when violators are caught. Again, the study found that, the general socio-politico-economic context of the regulated actors and regulators exhibits traits that undermined compliance and enforcement efforts.All these demonstrate that enhancing compliance is a complex phenomenon and not just a straight forward calculation of increasing sanctions to achieve a higher level of compliance, as deterrence theory would like us to believe. More than that, compliance has other dimensions as well including social and normative motivations, and capacity to comply. What is important then for policymakers and practitioners to enhance compliance among various regulated actors is to understand how different actors respond to different compliance motivations under various socio-politico-economic and cultural settings. Show less
This study identifies the human rights of children who live in foster care due to a family supervision order, and analyses the extent to which Dutch laws and regulations protect these rights. The... Show moreThis study identifies the human rights of children who live in foster care due to a family supervision order, and analyses the extent to which Dutch laws and regulations protect these rights. The aim of the research is to provide insight into the rights of foster children regarding four important decisions about their lives. Although the interests of the child are often taken as a starting point for these decisions, this does not do justice to the recognition of children as subjects of rights. After all, individual interpretations of the best interests of the child will inevitably depend on the normative frameworks of the decision-maker. It is argued that by identifying which children's rights can be derived from a human rights framework, children in foster care can be given stronger protection when making decisions about their life. The study concludes that the literal text of Dutch laws and regulations does not usually conflict with children's and human rights. Yet in many cases, foster children have no effective means of invoking their rights. Therefore recommendations are being made to amend the law and regulations to better protect the rights of children in foster care. Show less
International environmental treaties and soft law instruments stress international cooperation as a fundamental principle in the governance of natural resources shared by two or more states.... Show moreInternational environmental treaties and soft law instruments stress international cooperation as a fundamental principle in the governance of natural resources shared by two or more states. However, tensions between national interests and the common interests of the states sharing natural resources can make it difficult for states to cooperate. Meanwhile, the sustainable management of the resource in question and the human rights of the populations involved can be affected. This dissertation examines principles of international law applicable to the governance of resources that are significant to the world’s population, that have the potential to be a source of conflict, and whose governance presents problematic aspects. The selected principles are sovereignty, community of interests, common concern of humankind, public participation and sustainable development. The first two chapters focus on transboundary freshwater resources, underground and surface waters respectively. Chapter 3 and Chapter 4 focus on the atmosphere, addressing atmospheric degradation and climate change respectively. Chapter 5 focuses on marine resources beyond national jurisdiction or ‘ocean global commons’. Each chapter identifies problems concerning the selected principles and their application to shared resource governance, puts forward original and cogent arguments to address said problems, and suggests ways in which the principles could contribute to the sustainable governance of shared natural resources. Show less
Het onderzoek betreft de civielrechtelijke en fiscale aspecten van (testamentair) bewind, certificering en trusts/entiteiten die kwalificeren als afgezonderd particulier vermogen (APV). Vanuit... Show moreHet onderzoek betreft de civielrechtelijke en fiscale aspecten van (testamentair) bewind, certificering en trusts/entiteiten die kwalificeren als afgezonderd particulier vermogen (APV). Vanuit civielrechtelijk perspectief is onderzocht in hoeverre deze figuren kunnen leiden tot een duurzame scheiding van zeggenschap en belang, zowel algemeen als in relatie tot de legitieme portie. Voorts zijn de fiscale gevolgen geanalyseerd, waarbij de focus ligt op de inkomstenbelasting en schenk- en erfbelasting. In geval van geconstateerde fiscale belemmeringen is onderzocht of deze het gevolg zijn van juridische onvolkomenheden in de wetgeving. Voorts is een voorstel gedaan om deze belemmeringen weg te nemen. The research regards the civil law and fiscal aspects of (testamentary) administration, the exchange of assets for depositary receipts and trusts/entities that qualify as separated private estates as defined by the Dutch Income Tax Act 2001. The civil law research focuses on the question to what extent these legal arrangements can be used to create a durable division between control and beneficial ownership, both generally and in relation to the Dutch forced heirship rules. In addition the Dutch fiscal consequences have been analysed, with a focus on personal income tax and gift and inheritance tax. In case of fiscal impediments the analysis includes the question whether these impediments are caused by imperfections in Dutch fiscal law and proposals to remove these impediments have been made. Show less
Collective violence offenders usually do not have a criminal record. In earlier research, the emphasis in explaining collective violence has been on the relationships between the groups involved in... Show moreCollective violence offenders usually do not have a criminal record. In earlier research, the emphasis in explaining collective violence has been on the relationships between the groups involved in collective. This thesis argues that individual characteristics cannot be ignored. A part of collective violence offenders (approximately 10 percent) appear to have come into contact with the police from an early age on due to violence, committed both alone and in groups. Moreover, certain psychological characteristics - such as problems with impulse control, ADHD and aggression regulation problems - are more common in this group than among other collective violence offenders. In short: for some of involved in collective violence, taking part seems to be prompted not only by the situation but also by individual characteristics which manifest themselves in such situations. To date, the role of individual characteristics has only been examined to a limited extent, based on the idea that this does not do justice to the context in which collective violence manifests itself. The findings of this research argue for nuance in the scientific debate. When explaining collective violence, attention should be paid to the mutual relationships between the groups involved, the applicable "values" within specific offender groups (such as hooligans) and individual characteristics. Show less
Land tenure issues in Timor-Leste are complex and deeply shaped by the nation’s history. Taking an insider’s perspective, this socio-legal research studies the development of the Timorese formal... Show moreLand tenure issues in Timor-Leste are complex and deeply shaped by the nation’s history. Taking an insider’s perspective, this socio-legal research studies the development of the Timorese formal land tenure system from independence in 2002 to 2018. It shows how political, legal, and administrative decisions on land administration are made, what and who influences them, which problems and dilemmas politicians and state officials face, and how the formal land tenure system works in practice. It does so through the investigation of five analytical themes: political environment, lawmaking, legal framework, institutional framework, and social relationships and practices. The result is a portrait of a young nation grappling with the enormous task of creating a land tenure system that can address the needs of its citizens in the wake of centuries of socio-political tumult and huge fluctuations in resources, while seeking to find its place on the world stage as a new nation.By studying the development of the Timorese formal land tenure system, this book engages in the larger academic debate about the role of state systems in addressing – but also causing or aggravating – various social problems, such as insecurity, poverty, inequality, destruction of nature, and cultural and social estrangement. Show less
In the multi-level legal order, it is not unusual for a legal relationship between private parties to be governed by multiple Union rules on, for instance, non-discrimination, free movement,... Show moreIn the multi-level legal order, it is not unusual for a legal relationship between private parties to be governed by multiple Union rules on, for instance, non-discrimination, free movement, competition and the internal market more broadly. Nor is it uncommon that, on the face of it, national private law creates rights and duties as well. In such situations of concurrence, the question that arises is whether the interested party may elect the rule of his choice. Is he entitled to choose the rule which appears to him to be the most advantageous?This book offers a scheme of analysis by which this question can be debated and solved. Inspired by the experiences gained from examining several national systems of private law, the book starts from the premise that each rule, however founded, should be realised to the greatest possible extent. In principle, the existence of one rule does not, therefore, affect the scope of application of another rule. The book demonstrates that this principle also runs through the texts adopted by the Union legislature and through the judgments delivered by the Court of Justice of the European Union. It makes a clear case that in situations of concurrence, the substance of the rules should be decisive, and not merely their formal relationship Show less
International law and international relations have experienced the phenomenon on the judicialization of international relations and the subsequent proliferation of international courts and... Show moreInternational law and international relations have experienced the phenomenon on the judicialization of international relations and the subsequent proliferation of international courts and tribunals. One of the most significant aspects of this phenomenon, is the diversity in the institutional settings of each of the international courts and tribunals. These differences in the mandate, jurisdictional and institutional design make each of these judicial institutions unique. Despite these differences, there is one aspect that is common to nearly all the existing international courts and tribunals: the right for judges and arbitrators to append dissenting opinions. Differences exists, however, as to how this right is regulated, designed and exercised across international courts and tribunals. While at some courts and tribunals dissenting opinions should be anonymous, at others their content should be strictly limited to the aspects addressed in the majority judgment. Likewise, judges do not always exercise their right to append dissenting opinions for the same reasons.Based on these differences, the dissertation sets out to investigate whether there are differences in the exercise of the right to append dissenting opinions that can be traced back to differences in the mandate, jurisdictional and institutional design of the international court or tribunal in which they were rendered. This research aim is made through a focus on two courts that are notable for their differences, namely, the International Court of Justice and the Inter-American Court of Human Rights. Show less
The fate of a company and its directors in (near) insolvency situations is for an important part in the hands of financiers and legal professionals. Financiers need to assess the causes of the... Show moreThe fate of a company and its directors in (near) insolvency situations is for an important part in the hands of financiers and legal professionals. Financiers need to assess the causes of the company’s decline as well as its future outlook, in order to establish whether refinancing makes sense or whether liquidation would be more economical. In insolvency proceedings, legal professionals also need to determine the causes of the company’s demise, as company directors risk being held personally liable if mismanagement is considered an important cause of the company’s downfall. Given the potentially adverse consequences of faulty judgments made by these parties, it is of utmost importance that a company’s decline and its directors’ actions are accurately assessed. Importantly, advances in psychological science have pointed out that humans are susceptible to so-called cognitive biases that can obfuscate otherwise sound judgments. This dissertation investigates to what extent cognitive biases cloud financiers' and legal professionals’ judgments and aims to further our understanding of these biases. In this dissertation, evidence is presented showing that both financiers and legal professionals can succumb to a range of biases, and it is suggested that moral judgments can play an important role in causing some of these biases. The dissertation concludes with a discussion on the implication of the findings for legal scholarship and legal practice. Show less
This research is about the actions taken by lawyers in Indonesia to win land rights for corporations. In order to perform these actions, they not only deploy the weaknesses in the law, but their... Show moreThis research is about the actions taken by lawyers in Indonesia to win land rights for corporations. In order to perform these actions, they not only deploy the weaknesses in the law, but their strategies are supplemented with an acquired structural advantage: social capital in the form of loyalty of others they have vetted, such as judges, policemen and prosecutors.The dissertation gives a comprehensive account of the field that makes the strategies possible from multiple angles, such as courts, business actors, the condition of the rules, and then continues to expose the strategies. It is concluded by highlighting the specifications to the condition of the Rule of Law in Indonesia which need special attention and offer suggestions for substantive and sustainable legal reform. Show less
Under international law, the state is generally only responsible for the conduct of public authorities and not of private actors. But when a state loses effective control over part of its territory... Show moreUnder international law, the state is generally only responsible for the conduct of public authorities and not of private actors. But when a state loses effective control over part of its territory, that loss is often accompanied (or even caused) by an enhanced role for private actors, such as armed groups, secessionist entities, or even informal community institutions. Under the current system, these actors cannot be held directly responsible when they commit, for instance, human rights abuses. At the same time, states are rarely completely absent from the picture: the government may try to reassert control or enlist the help of militias; foreign powers may support rebel groups or prop up separatist regimes.Against this backdrop, the dissertation explores when states can be held responsible in connection with private conduct in such situations, and how any remaining accountability gaps can be narrowed in cases where a state is involved. In doing so, it focuses on three bases of responsibility: violating a duty to prevent and/or redress private conduct; complicity in private conduct; and the transformation of private into public conduct, through its attribution to the state. The analysis delves into the work of the International Law Commission and international jurisprudence, including the hitherto largely underexplored case law of regional human rights courts on these issues. To narrow the accountability gap, the dissertation argues that there should be a general rule prohibiting state complicity in the wrongful conduct of private actors; in the meantime, complicity should in certain limited cases form the basis for attribution. Show less
With access to and usage of it increasing dramatically over the past 20 years, the Internet has become an emerging realm for human interaction. With children constituting one-third of Internet... Show moreWith access to and usage of it increasing dramatically over the past 20 years, the Internet has become an emerging realm for human interaction. With children constituting one-third of Internet users worldwide, this realm offers endless opportunities to learn, connect, and interact. At the same time, the Internet facilitates child sexual abuse on a large scale – through the production, dissemination, and accessing of child sexual abuse material.This study aims to critically analyse emerging aspects of the international and national regulation, investigation and prosecution of online child sexual abuse material from a child-rights and rule-of-law-based approach. It investigates emerging aspects of substantive and procedural law which have been little explored in the past, zooming in on complex constitutional aspects by applying a comparative legal analysis approach with a strong focus on the Global South as well as interdisciplinary legal research.In order to solve these complex legal issues, the answer lies in the identification and subsequent navigation of a variety of dichotomies that govern the discourse on online child sexual abuse material. The international and national regulation, investigation and prosecution of emerging aspects of online child sexual abuse material hence require constant identification, reflection and calibration of competing discourses, with a view to developing a cyber-specific yet victim-sensitive response that upholds the rule of law and takes a child-centred approach. Show less
Het Europese non-foodproductveiligheidsrecht bevat productnormen die veelal als publiekrechtelijk worden bestempeld. Bij de harmonisatie gebruikt de Europese wetgever verschillende soorten... Show moreHet Europese non-foodproductveiligheidsrecht bevat productnormen die veelal als publiekrechtelijk worden bestempeld. Bij de harmonisatie gebruikt de Europese wetgever verschillende soorten productnormen, namelijk bindende eisen in richtlijnen en verordeningen en niet-bindende Europese normalisatienormen. De literatuur neemt aan dat Europese productnormen ook invloed kunnen hebben op de privaatrechtelijke normen die gelden in rechtsverhoudingen tussen bijvoorbeeld de eindgebruiker van het product en andere partijen in de handelsketen, alsmede tussen concurrenten. Dit onderzoek beantwoordt de vraag wat de exacte betekenis is van Europese productnormen voor privaatrechtelijke normstelling. Wanneer is een productnorm slechts een van de relevante omstandigheden van het geval bij de formulering van een privaatrechtelijke norm? Wanneer vult een productnorm een privaatrechtelijke norm grotendeels in, in de zin dat de productnorm het uitgangspunt vormt? Van welke omstandigheden en factoren is deze betekenis afhankelijk?Het onderzoek biedt de lezer een nadere introductie in het wat onderbelichte Europese productveiligheidsrecht en beantwoordt de hoofdvraag aan de hand van een Europeesrechtelijk, institutioneel en privaatrechtelijk perspectief. De privaatrechtelijke analyse ziet op de belangrijkste Nederlandse rechtsgronden voor doorwerking van productnormen en bevat rechtsvergelijking met het Engelse en Duitse recht. Bovendien vindt een uitvoerige analyse van Nederlandse feitenrechtspraak plaats om te zien hoe feitenrechters in de praktijk met productnormen bij de invulling van privaatrechtelijke normen omgaan. Het onderzoek besluit met een overzicht van gezichtspunten die behulpzaam kunnen zijn bij het beoordelen van de betekenis van productnormen voor privaatrechtelijke normstelling in concrete gevallen. Show less
The average person spends more than one-third of their life working. Considering that work plays a central role in our lives, many of us are concerned about choosing career paths that are... Show moreThe average person spends more than one-third of their life working. Considering that work plays a central role in our lives, many of us are concerned about choosing career paths that are sustainable. However, as much as we want to, we cannot craft sustainable careers by simply making the right career decisions. Our careers are continuously affected by less controllable aspects in our lives, such as societal changes and the organization we work for. To understand what makes careers sustainable, we need to investigate how the person together with other contextual stakeholders can influence sustainable careers. This dissertation consists of four empirical chapters that study the consequences of a number of contemporary career choices made by the individual, such as working from home and becoming self-employed, and the influence of supervisors and society on sustainable careers. Additionally, this thesis sheds light on the challenges that certain minority group members face in building a sustainable career. The findings demonstrate that contemporary work forms, such as working from home, have the potential to promote sustainable careers but only if supervisors support individuals’ decisions. Moreover, this dissertation shows that women and non-parents may face greater challenges in crafting a sustainable career. Show less
The current body of law governing the conduct of police and prosecution during the investigative phase of criminal proceedings encompasses an enormous amount of rules. At the same time, a... Show moreThe current body of law governing the conduct of police and prosecution during the investigative phase of criminal proceedings encompasses an enormous amount of rules. At the same time, a restrained approach with regard to the judicial supervisory role of investigative propriety is visible in case law while it remains unclear whether and to which extent other institutions have a supervisory role in this respect. This research looks at the current system of supervision on police and prosecutorial conduct in the context of criminal law proceedings from the viewpoint of criminal law standard. After all, creating rules for the conduct of law enforcement entails a certain obligation to ensure rule-compliance. After illustrating the complexity of the current legal framework as well as the complexity of reasons underlying its norms, the study focuses on the supervision of the conduct of police and prosecution. Based on the specific characteristics of the current Dutch criminal procedural law, the study develops a framework for an adequate system of supervision. The study then describes how currently supervision on police and prosecutorial conduct is organised and finally evaluates this in light of the requirements of adequate supervision as set out in previous chapter. Show less
This thesis investigates the extent to which international law provides a normative framework for the management of the Spratly Islands area in the absence of agreed maritime delimitation, with the... Show moreThis thesis investigates the extent to which international law provides a normative framework for the management of the Spratly Islands area in the absence of agreed maritime delimitation, with the aim of maintaining peaceful coexistence of the disputant States and promoting international cooperation. In addition to the introductory and concluding chapters, this thesis consists of two parts: Part I (Coexistence) and Part II (Cooperation). Part I, comprising chapters 2-4, seeks to set out a predictable territorial order and a permissible scope for unilateral behaviours to ensure peaceful coexistence of the disputant States. Part II, including chapters 5-7, outlines international legal frameworks for inter-State cooperation in resource and pollution management concerning the Spratly Islands area. This thesis concludes that the functions of international law in managing this region can be achieved through the interaction between its substantive and procedural elements, despite its limitations resulting from the classic ‘territoriality’ model of jurisdiction. This thesis will hopefully provide a balanced perspective on the roles of international law and advocate a blueprint of cooperation that can be undertaken at a relatively low level of efforts or changes by making use of the existing international instruments or available cooperative mechanisms as much as possible. Show less
The objective of this research was to establish a theoretical method with which legal norms could be distinguished by their content. Extensive research led to the development of a general norm... Show moreThe objective of this research was to establish a theoretical method with which legal norms could be distinguished by their content. Extensive research led to the development of a general norm theory based on norm definitions that allowed for the formulation of a coherent set of legal norms, thus distinguishing between different norms. Consequently, this set is constitutive for the construction of an executable legal system which is demonstrated by applying the theory on the Dutch tax system. The general formula of a norm is given by ∀ε∈E 'imperatief^'φ, in which φ represents in algorithmic form the most recent content. This symbolic form represents all the properties of a norm and may include existing norm theories. Furthermore, it is demonstrated that every legal text can be transformed into this algorithmic form. Show less
