De werkrechtersraad van beroep van Gent

Pro Memorie ◽  
2021 ◽  
Vol 23 (2) ◽  
pp. 149-179
Author(s):  
Jasper Van de Woestijne
Keyword(s):  
Case Law ◽  
Labour Law ◽  
Content Type ◽  
Administration Of Justice ◽  
Labour Legislation

Abstract In Belgium, the administration of justice with regard to labour law is in the hands of specialised courts, staffed by a combination of professional and lay judges. This has historical roots. An important step in the evolution of these courts is the establishment of the ‘werkrechtersraden van beroep’ (‘conseils de prud’hommes d’appel’). From their creation in 1913 until their reform in 1967, these councils were the highest authority in Belgium to settle disputes on the work floor and consequently the highest interpreter of labour legislation. The institution constantly balanced on the remarkable interface between law and labour. In this contribution, a fact check is carried out to see how this balance worked in practice. An exceptional episode are the periods in which this system was placed under tension. Therefore, this contribution pays special attention to the case law pronounced by the werkrechtersraad van beroep of Ghent in the crisis-ridden period 1935-1950.

Labour Law

1990 ◽  
Vol 24 (3-4) ◽  
pp. 696-701
Author(s):  
Itzhak Eliasoff
Keyword(s):  
Social Security ◽  
Case Law ◽  
International Community ◽  
The State ◽  
International Norms ◽  
The Political ◽  
Labour Law ◽  
Labour Legislation

Anyone wishing to survey and evaluate the principal developments in Israeli labour law since the establishment of the State must relate both to the whole range of labour legislation, including legislation in the area of social security, and to the case law which has grown up alongside this legislation, which has interpreted it, and has completed and developed norms lacking in the legislation.Labour legislation in Israel, particularly in its initial stages, as Prof. Raday mentioned, was the outcome of a planned initiative. The legislation was designed to express the political and social independence of the State, to adopt the accepted international norms in this area, and to integrate Israel into the international community.

Can housing rights be applied to modern housing systems?

2010 ◽  
Vol 2 (2) ◽  
pp. 103-117 ◽  
Author(s):  
Padraic Kenna
Keyword(s):  
International Law ◽  
Case Law ◽  
Epistemic Communities ◽  
Policy Makers ◽  
Content Type ◽  
Housing Systems ◽  
Effective Implementation ◽  
Housing Rights ◽  
The World ◽  
Effective Translation

PurposeThe purpose of this paper is to outline and examine the growing corpus of housing rights and assess their relevance and applicability to complex contemporary housing systems across the world.Design/methodology/approachThe paper sets out the principal instruments and commentaries on housing rights developed by the United Nations, regional and other bodies. It assesses their relevance in the context of contemporary analysis of housing systems, organized and directed by networks of legal and other professionals within particular domains.FindingsHousing rights instruments are accepted by all States across the world at the level of international law, national constitutions and laws. The findings suggest that there are significant gaps in the international law conception and framework of housing rights, and indeed, human rights generally, which create major obstacles for the effective implementation of these rights. There is a preoccupation with one element of housing systems, that of subsidized or social housing. However, effective housing rights implementation requires application at meso‐, micro‐ and macro‐levels of modern, dynamic housing systems as a whole. Epistemic communities of professionals develop and shape housing law and policy within these domains. The housing rights paradigm must be further fashioned for effective translation into contemporary housing systems.Research limitations/implicationsThe development of housing rights precedents, both within international and national law, is leading to a wide and diffuse corpus of legislation and case law. More research is needed on specific examples of effective coupling between housing rights and elements of housing systems.Originality/valueThis paper offers housing policy makers and lawyers an avenue into the extensive jurisprudence and writings on housing rights, which will inevitably become part of the lexicon of housing law across the world. It also highlights the limitations of housing rights implementation, but offers some new perspectives on more effective application of these rights.

scholarly journals The emergence of coercive federal Australian labour law, 1901–2020

2021 ◽  
pp. 002218562110039
Author(s):  
Eugene Schofield-Georgeson
Keyword(s):  
Industrial Relations ◽  
High Volume ◽  
Union Power ◽  
Labour Law ◽  
Industrial Environment ◽  
The Past ◽  
Low Levels ◽  
Labour Legislation ◽  
Employment Legislation

Over the past two decades, industrial relations scholarship has observed a trend towards an increasingly punitive industrial environment along with the ‘re-regulation’ of labour law. Absent from much of this literature, however, has been an empirical and historical measurement or comparison of the scale and quality of this systemic change. By surveying coercive and penal federal industrial legislation over the period 1901–2020, this study shows empirically that over the last 40 years, there has been a steep increase in the amount of coercive federal labour legislation in Australia. It further measures and compares the volume of coercive labour legislation enacted specifically against ‘labour’ and ‘capital’ or both throughout the same period (1901–2020). Analysis reveals a correlation between a high volume of coercive labour legislation with low levels of trade union power and organisation. Argued here is that coercive labour legislation has been crucial to transitioning from a liberal conciliation and arbitration model of Australian industrial relations towards a neoliberal framework of employment legislation. In the former, regulation was more collective, informal and egalitarian (embodied by the sociological concept of ‘associative democracy’). Under a neoliberal framework, regulation is now more individualised, technical, punitive and rarely enforced, resulting in less equal material outcomes.

Medical treatment and best interests: judicial interpretation of values, wishes and beliefs under the Mental Capacity Act 2005

2020 ◽  
Vol 22 (3) ◽  
pp. 165-173
Author(s):  
Owen P. O'Sullivan
Keyword(s):  
Medical Treatment ◽  
Clinical Decision ◽  
Case Law ◽  
Decision Makers ◽  
Best Interests ◽  
Content Type ◽  
The Supreme Court ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act ◽  
The Uk

Purpose The prominence of the best interests principle in the Mental Capacity Act 2005 represented an important transition to a more resolutely patient-centred model regarding decision-making for incapable adults (“P”). This paper aims to examine the courts’ consideration of P’s values, wishes and beliefs in the context of medical treatment, reflect on whether this has resulted in a wide interpretation of the best interests standard and consider how this impacts clinical decision makers. Design/methodology/approach A particular focus will be on case law from the Court of Protection of England and Wales and the Supreme Court of the UK. Cases have been selected for discussion on the basis of the significance of their judgements for the field, the range of issues they illustrate and the extent of commentary and attention they have received in the literature. They are presented as a narrative review and are non-exhaustive. Findings With respect to values, wishes and beliefs, the best interests standard’s interpretation in the courts has been widely varied. Opposing tensions and thematic conflicts have emerged from this case law and were analysed from the perspective of the clinical decision maker. Originality/value This review illustrates the complexity and gravity of decisions of the clinical decision makers and the courts have considered in the context of best interests determinations for incapacitated adults undergoing medical treatment. Subsequent to the first such case before the Supreme Court of the UK, emerging case law trends relating to capacity legislation are considered.

Formation of contracts for the international sale of goods under Korean law and the CISG

2017 ◽  
Vol 21 (3) ◽  
pp. 208-223
Author(s):  
Byung Mun Lee
Keyword(s):  
Comparative Study ◽  
Design Methodology ◽  
Case Law ◽  
The Other ◽  
Basic Question ◽  
Content Type ◽  
International Sale Of Goods ◽  
The Comparative Study ◽  
International Sales ◽  
Insight Into

Purpose The purpose of this paper is to describe and analyze the rules on the formation of contracts under Korean law and the Contracts for the International Sale of Goods (CISG) in a comparative way and introduce the relevant proposed rules under the Amendment Draft of the Korean Civil Code (KCC). In addition, it attempts to compare and evaluate them in light of the discipline of comparative law. Design/methodology/approach In order to achieve the purposes of the study, it executes a comparative study of the rules as to the formation of contracts of the CISG, Korean law and the Amendment Draft of the KCC. The basic question for this comparative study is placed on whether a solution from one jurisdiction is more logical than the others and to what extent each jurisdiction has responded to protect the reasonable expectations of the parties in the rules as to the formation of contracts. Findings The comparative study finds that most of the rules under the CISG are quite plausible and logical and they are more or less well reflected in the proposals advanced by the KCC amendment committee. On the other hand, the other rules under the CISG which have brought criticisms in terms of their complexity and inconsistent case law invite us their revision or consistent interpretation. The drawbacks of the CISG have also been well responded in the Amendment Draft of the KCC. Nevertheless, it is quite unfortunate that the Amendment Draft of the KCC still has a rule that regards any purported performance with non-material alteration of the terms of an offer as an acceptance. Originality/value This study may provide legal and practical advice to both the seller and the buyer when they enter into a contract for international sales of goods. In addition, it may render us an insight into newly developed or developing rules in this area and show us how they interact with each other. Furthermore, it may be particularly useful in Korea where there is an ongoing discussion for revision of the KCC.

scholarly journals L'inconstitutionnalité des pouvoirs du protonotaire spécial

2005 ◽  
Vol 22 (2) ◽  
pp. 429-454
Author(s):  
Serge Bouchard ◽  
Marie-Michèle Lavigne ◽  
Pascal Renauld
Keyword(s):  
Case Law ◽  
Civil Procedure ◽  
District Court ◽  
Privy Council ◽  
Labour Relations ◽  
Court Judge ◽  
Administration Of Justice

The office of special prothonotary was created in 1975 by an amendment to the Code of Civil Procedure. The main purpose of the change was to ease the administration of justice before the courts. For this reason, the special prothonotary received many assignments which were reserved until then to a judge sitting in chambers and even to the court itself. Such transfer of duties and powers may conflict with section 96 of the BNA Act, which acts as a bar to prevent the withdrawal of judicial functions from a superior, county or district court. This paper deals with the interferences between various sections of the Code of Civil Procedure and section 96 of the BNA Act. The first part of the paper deals with the approach adopted by the courts. The true test, according to the case-law, is to determine the nature of the function involved. Since only judicial functions are protected by section 96, it is intravires the Legislature of Quebec to confer on a board or tribunal administrative or ministerial powers. If the transfer involves judicial functions, the courts will use the test adopted by the Privy Council in Labour Relations Board of Saskatchewan v. John East Iron Works and by Sir Lyman Duff in In re Adoption Act, and examine whether the transferee is analogous to a superior, district or county court. The courts will also have to apply the « 1867 statute books test » : was the particular function conferred to the prothonotary before 1867 ? If the results of each of the two tests are affirmative, then the function is one protected by section 96 of the BNA Act and its transfer is ultra vires the provincial Legislature. If the results are negative, the courts will examine if the provisions involved have the effect of vesting in the special prothonotary the powers of a superior court judge. If the courts conclude that it is so, then, the assignment is ultra vires the powers of the provincial Legislature. The second part deals with each of the assignments transferred to the special prothonotary. These are threefold in nature: 1. Actions by default to appear or by default to plead under article 195 C.C.P. ; 2. Jurisdiction under article 44.1(1) C.C.P. ; 3. Interlocutory or incidental proceedings, contested or not, but, if so, with the consent of the parties. The paper concludes that most of the provisions dealing with the duties and powers of the special prothonotary are unconstitutional

scholarly journals Getting it right: directors’ assessment of information

2015 ◽  
Vol 30 (2) ◽  
pp. 117-131
Author(s):  
Kerri O’Donnell ◽  
Barry Hicks ◽  
John Streeter ◽  
Paul Shantapriyan
Keyword(s):  
Case Law ◽  
Duty Of Care ◽  
Executive Directors ◽  
Due Diligence ◽  
Content Type ◽  
Regulatory Guidance ◽  
Statutory Duty ◽  
Conceptual Paper ◽  
Practical Implications ◽  
Individual Interpretation

Purpose – The purpose of this paper is to explore the increasing expectation against two concepts, information and process scepticism. In light of the Centro case judgement, directors’ decisions are held to increasing standards of due care and diligence. Design/methodology/approach – This is a conceptual paper, drawing upon archival material, including statute law, case law, regulatory guidance material and media releases in Australasia. The authors review the statutory duty of care, skill and diligence expected of non-executive directors. Findings – Whether a director has exercised an appropriate level of reasonable care and skill and/or due diligence has been a matter for the courts to decide. Such retrospective analysis leaves directors vulnerable to the uncertainty of whether their individual interpretation of diligence matches up to that of the presiding judge. The authors provide directors with a framework to apply scepticism to information and processes provided by those on whom the directors may rely. Research limitations/implications – Two concepts are identified: reasonable reliance on others and the business judgement rule. The authors present arguments that challenge us to understand reasonable reliance, judgement and actions of directors in light of processing and information scepticism. Practical implications – Directors do have a different role to that of auditors; incorporating scepticism can enable directors to fulfil their responsibility towards shareholders. By applying information and process scepticism, directors of companies can reduce the likelihood and magnitude of litigation costs and out-of-court settlements. Originality/value – This paper provides a framework to apply scepticism to information and processes provided by people on whom the directors may rely.

ON and DP v. Russian Federation

2021 ◽  
Vol 194 ◽  
pp. 463-486
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Russian Federation ◽  
Gender Stereotypes ◽  
Case Law ◽  
Due Diligence ◽  
Lesbian Women ◽  
Content Type ◽  
Rule Application ◽  
United Nations Convention

463Human rights — Women’s rights — Elimination of discrimination against women — Sexual orientation — Exhaustion of domestic remedies — Due diligence obligations — Obligation to investigate — Requirement of prompt and impartial investigation — Protection of lesbian women from violence — Gender stereotypes — Committee case law and general recommendations — Remedies — Whether Russian Federation violating Articles 1, 2 and 5 of United Nations Convention on the Elimination of All Forms of Discrimination against Women, 1979International tribunals — Jurisdiction and admissibility — United Nations Committee on the Elimination of Discrimination against Women — Local remedies rule — Application in light of time bar under national law

scholarly journals Clients, clinics and social justice

2018 ◽  
Vol 8 (3) ◽  
pp. 323-336 ◽  
Author(s):  
Robert Collinson ◽  
Alice Diver ◽  
Sharon McAvoy
Keyword(s):  
Human Rights ◽  
Social Justice ◽  
Case Law ◽  
Legal Practice ◽  
Law Schools ◽  
Legal Ethics ◽  
Global Compact ◽  
Un Global Compact ◽  
Content Type

PurposeThe purpose of this paper is to present a case study of an innovative, three-module pathway designed by the Department of Law and Criminology at Edge Hill University (England) in 2014. In addition to supporting the work of its campus pro-bono law clinic, the first-two modules aim to enhance and evidence the legal skills of EHU’s undergraduate LLB students, to embed a deeper awareness of the (legal) ethics needed for sustainable legal practice (within PRME), and to highlight the increasing need for socially responsible advocates, able to defend the rights of marginalised, vulnerable clients.Design/methodology/approachThe critical analysis of the content and scope of an innovative, work-based learning LLB module pathway, which furthers the aim of the UN Global Compact and the PRME, and ties them firmly to socio-legal issues and advocacy involving recent jurisprudence.FindingsThe case law used within the modules, and the practical work of the students in the campus law clinic, are relevant to social justice issues and to the promotion of PRME values—they promote awareness of human rights principles, highlight the importance of access to legal services and provide students with knowledge of legal ethics. Enhanced employability skills flow from this.Research limitations/implicationsThis is a narrow case study but still provides a useful analysis of an innovative, PRME relevant module pathway. The model mirrors international trends in clinical legal education and also offers a template for other law schools keen to promote the concept of ethical, just legal practice.Practical implicationsThe paper posits that enhanced employability can flow from real world tasks such as advocacy for marginalised or disadvantaged groups and presents an exemplar for other law schools wishing to embed ethics/clinical law practice into their curriculum.Social implicationsThe paper highlights how the campus law clinic serves the public in a deprived region—it raises awareness of human rights and of social justice issues. It has the potential to feed into litigation on social welfare issues (housing, social security, child welfare, etc.).Originality/valueThe discussion of the human rights case law that is used in the Year 2 “bridging module” (which prepares students for working in the law clinic in their final year) is particularly relevant and is analysed in detail, highlighting how this module pathway is aimed at promoting PRME and UN Global Compact principles.

Barriers to Arab female academics’ career development

2017 ◽  
Vol 40 (10) ◽  
pp. 1058-1080 ◽  
Author(s):  
Waed Ensour ◽  
Hadeel Al Maaitah ◽  
Radwan Kharabsheh
Keyword(s):  
Career Development ◽  
National Culture ◽  
Design Methodology ◽  
Social Economic ◽  
Academic Career ◽  
Document Analysis ◽  
Labour Law ◽  
Content Type ◽  
Hrm Practices

Purpose Arab female academics struggle to advance within their universities in both academic and managerial ranks. Accordingly, this study aims to investigate the factors hindering Arab women’s academic career development through studying the case of Jordanian academic women. Design/methodology/approach Data were gathered through document analysis (Jordan constitution, Jordanian Labour Law and its amendments, higher education and scientific research law, Jordanian universities’ law and universities’ HR policies and regulations), interviews with 20 female academics and a focus group with 13 female academics (members of the Association of Jordanian Female Academics). Findings The results indicate female academics as tokens facing many interconnected and interrelated barriers embodied in cultural, social, economic and legal factors. The findings support the general argument proposed in human resource management (HRM) literature regarding the influence of culture on HRM practices and also propose that the influence of culture extends to having an impact on HR policies’ formulation as well as the formal legal system. Originality/value The influence of culture on women’s career development and various HR practices is well established in HR literature. But the findings of this study present a further pressure of culture. HR policies and other regulations were found to be formulated in the crucible of national culture. Legalizing discriminatory issues deepens the stereotypical pictures of women, emphasizing the domestic role of women and making it harder to break the glass ceiling and old-boy network.

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