The Experts below are selected from a list of 360 Experts worldwide ranked by ideXlab platform
K A M Henrard - One of the best experts on this subject based on the ideXlab platform.
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the racial equality directive and effective protection against discrimination mismatches between the Substantive Law and its application
Erasmus law review, 2010Co-Authors: Monika Ambrus, Marjolein Busstra, K A M HenrardAbstract:textabstractThe success of the Racial Equality Directive (RED) in terms of effective protection against discrimination depends inter alia on the coherence and correlation between its Substantive and procedural provisions, both in terms of the wording of the Directive and in terms of its interpretation and application. In this article, three ‘mismatches’ between the Substantive Law and its application are identified. Effective protection against discrimination requires that these mismatches are avoided. First of all, a teleological interpretation of a Substantive provision should be matched by corresponding (broad) enforcement provisions. Secondly, the interpretation and application of the definitions of direct and indirect discrimination need to ensure a proper delineation of these Substantive concepts. Thirdly, these Substantive concepts have to be appropriately translated in terms of the enforcement dimension. In this respect, the ECJ has an essential role to play. In view of its special position as ultimate interpreter and guardian of the unity of EU Law, it needs to take up the task of ensuring the ‘match’, while providing adequate guidance to the national courts. Although the ECJ remedied the first mismatch through its generous interpretation of the ‘fLawed’ enforcement provision, it has failed to avoid the two other mismatches and thus has not realised the most effective protection possible against discrimination. It is to be hoped that the willingness to avoid mismatches between Substantive Law and its application will manifest itself more broadly in the future.
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the racial equality directive and effective protection against discrimination mismatches between the Substantive Law and its application
Social Science Research Network, 2010Co-Authors: Monika Ambrus, Marjolein Busstra, K A M HenrardAbstract:The success of the Racial Equality Directive (RED) in terms of effective protection against discrimination depends inter alia on the coherence and correlation between its Substantive and procedural provisions, both in terms of the wording of the Directive and in terms of its interpretation and application. In this article, three, "mismatches," between the Substantive Law and its application are identified. Effective protection against discrimination requires that these mismatches are avoided. First of all, a teleological interpretation of a Substantive provision should be matched by corresponding (broad) enforcement provisions. Secondly, the interpretation and application of the definitions of direct and indirect discrimination need to ensure a proper delineation of these Substantive concepts. Thirdly, these Substantive concepts have to be appropriately translated in terms of the enforcement dimension. In this respect, the ECJ has an essential role to play. In view of its special position as ultimate interpreter and guardian of the unity of EU Law, it needs to take up the task of ensuring the ‘match’, while providing adequate guidance to the national courts. Although the ECJ remedied the first mismatch through its generous interpretation of the, "fLawed," enforcement provision, it has failed to avoid the two other mismatches and thus has not realized the most effective protection possible against discrimination. It is to be hoped that the willingness to avoid mismatches between Substantive Law and its application will manifest itself more broadly in the future.
Ronald A Brand - One of the best experts on this subject based on the ideXlab platform.
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th e evolving private international Law Substantive Law overlap in the european union
Social Science Research Network, 2014Co-Authors: Ronald A BrandAbstract:This chapter, written for the FESTSCHRIFT FUR ULRICH MAGNUS (Sellier European Law Publishers 2014), considers three areas in which, either through legislation or through the decisions of the European Court of Justice, private international Law rules found in the Brussels I Regulation have overlapped with Substantive Law rules to create uncomfortable – and sometimes undesirable – results. These examples arise at the overlap of (1) the CISG Article 31 rules on delivery of goods and the Brussels I Recast Regulation Article 7(1) (original Article 5(1)) contract jurisdiction rules; (2) national rules on contract formation and the Brussels I Recast Regulation Article 25 (original Article 23) rules on choice of court; and (3) consumer protection and the rules of the Brussels I Recast Regulation on jurisdiction in consumer cases. After discussing each of these overlapping areas of Law, the chapter provides comments on how, together, these concerns demonstrate the need to avoid using private international Law rules for the purpose of either implementing Substantive Law goals or for creating new rules that conflict with their Substantive Law counterparts.
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cisg article 31 when Substantive Law rules affect jurisdictional results
Social Science Research Network, 2008Co-Authors: Ronald A BrandAbstract:Judicial application of Article 31 of the U.N. Sales Convention has proved that the determination of the place of performance of the seller's obligation can have implications beyond just the Substantive effect of that obligation. In fact, many of the cases dealing with this article apply its Substantive rules primarily for purposes of determining jurisdictional outcome. This raises important questions of uniformity in the application of the Convention.CISG Article 31 provides four rather specific rules for determining the? place of performance of the seller's delivery obligation, each depending on party choices and the type of contract relationship-involved. These rules are important for both contract formation and dispute resolution purposes. The fact that parties may structure a transaction to avoid the three default rules of Article 31 makes important a clear understanding of the import and effect of these rules.This paper begins with a review of the Substantive rules found in CISG Article 31. It then discusses the cases under the Brussels and Lugano Conventions that rely on Article 31 to help determine the existence of jurisdiction in a court other than a court in the state of the defendant's domicile. This is compared with the approach to jurisdiction in the United States that makes the Article 31 rules less likely to have significance for jurisdictional purposes. Finally, a series of hypothetical cases is used in order to explore these differences and to consider further aspects of the relationship between CISG rules of Substantive Law and rules of jurisdiction. The paper concludes that Article 31 is an example of a CISG provision for which the "homeward trend" will have different impact in differing legal systems, particularly in its application to jurisdictional questions.
Monika Ambrus - One of the best experts on this subject based on the ideXlab platform.
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the racial equality directive and effective protection against discrimination mismatches between the Substantive Law and its application
Erasmus law review, 2010Co-Authors: Monika Ambrus, Marjolein Busstra, K A M HenrardAbstract:textabstractThe success of the Racial Equality Directive (RED) in terms of effective protection against discrimination depends inter alia on the coherence and correlation between its Substantive and procedural provisions, both in terms of the wording of the Directive and in terms of its interpretation and application. In this article, three ‘mismatches’ between the Substantive Law and its application are identified. Effective protection against discrimination requires that these mismatches are avoided. First of all, a teleological interpretation of a Substantive provision should be matched by corresponding (broad) enforcement provisions. Secondly, the interpretation and application of the definitions of direct and indirect discrimination need to ensure a proper delineation of these Substantive concepts. Thirdly, these Substantive concepts have to be appropriately translated in terms of the enforcement dimension. In this respect, the ECJ has an essential role to play. In view of its special position as ultimate interpreter and guardian of the unity of EU Law, it needs to take up the task of ensuring the ‘match’, while providing adequate guidance to the national courts. Although the ECJ remedied the first mismatch through its generous interpretation of the ‘fLawed’ enforcement provision, it has failed to avoid the two other mismatches and thus has not realised the most effective protection possible against discrimination. It is to be hoped that the willingness to avoid mismatches between Substantive Law and its application will manifest itself more broadly in the future.
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the racial equality directive and effective protection against discrimination mismatches between the Substantive Law and its application
Social Science Research Network, 2010Co-Authors: Monika Ambrus, Marjolein Busstra, K A M HenrardAbstract:The success of the Racial Equality Directive (RED) in terms of effective protection against discrimination depends inter alia on the coherence and correlation between its Substantive and procedural provisions, both in terms of the wording of the Directive and in terms of its interpretation and application. In this article, three, "mismatches," between the Substantive Law and its application are identified. Effective protection against discrimination requires that these mismatches are avoided. First of all, a teleological interpretation of a Substantive provision should be matched by corresponding (broad) enforcement provisions. Secondly, the interpretation and application of the definitions of direct and indirect discrimination need to ensure a proper delineation of these Substantive concepts. Thirdly, these Substantive concepts have to be appropriately translated in terms of the enforcement dimension. In this respect, the ECJ has an essential role to play. In view of its special position as ultimate interpreter and guardian of the unity of EU Law, it needs to take up the task of ensuring the ‘match’, while providing adequate guidance to the national courts. Although the ECJ remedied the first mismatch through its generous interpretation of the, "fLawed," enforcement provision, it has failed to avoid the two other mismatches and thus has not realized the most effective protection possible against discrimination. It is to be hoped that the willingness to avoid mismatches between Substantive Law and its application will manifest itself more broadly in the future.
Simona Grossi - One of the best experts on this subject based on the ideXlab platform.
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venezuela v helmerich will formalism win over Substantive Law again
Social Science Research Network, 2016Co-Authors: Simona GrossiAbstract:The essay offers an analysis of Venezuela v. Helmerich & Payne International, a case to be argued before the Supreme Court on November 2. That case involves the interpretation and application of the Foreign Sovereign Immunities Act (FSIA). The question presented is whether, when pleading jurisdiction under the expropriation exception to the FSIA, a higher pleading standard should be employed, one under which it is necessary to show that there “actually is” a claim, essentially requiring the plaintiff to establish something more exacting than the plausibility standard. The Petitioners’ argument in Helmerich presents a classic example of arguing from a conception — sovereign immunity — to an abstract but controlling proposition of Law. A more realistic approach, one that examines the facts, is put to the side in the interest of the conception. This essay resists that approach and promotes a jurisdictional and pleading analysis that is conducive to the evolution of Substantive Law and the enforcement of Substantive rights.
Marjolein Busstra - One of the best experts on this subject based on the ideXlab platform.
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the racial equality directive and effective protection against discrimination mismatches between the Substantive Law and its application
Erasmus law review, 2010Co-Authors: Monika Ambrus, Marjolein Busstra, K A M HenrardAbstract:textabstractThe success of the Racial Equality Directive (RED) in terms of effective protection against discrimination depends inter alia on the coherence and correlation between its Substantive and procedural provisions, both in terms of the wording of the Directive and in terms of its interpretation and application. In this article, three ‘mismatches’ between the Substantive Law and its application are identified. Effective protection against discrimination requires that these mismatches are avoided. First of all, a teleological interpretation of a Substantive provision should be matched by corresponding (broad) enforcement provisions. Secondly, the interpretation and application of the definitions of direct and indirect discrimination need to ensure a proper delineation of these Substantive concepts. Thirdly, these Substantive concepts have to be appropriately translated in terms of the enforcement dimension. In this respect, the ECJ has an essential role to play. In view of its special position as ultimate interpreter and guardian of the unity of EU Law, it needs to take up the task of ensuring the ‘match’, while providing adequate guidance to the national courts. Although the ECJ remedied the first mismatch through its generous interpretation of the ‘fLawed’ enforcement provision, it has failed to avoid the two other mismatches and thus has not realised the most effective protection possible against discrimination. It is to be hoped that the willingness to avoid mismatches between Substantive Law and its application will manifest itself more broadly in the future.
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the racial equality directive and effective protection against discrimination mismatches between the Substantive Law and its application
Social Science Research Network, 2010Co-Authors: Monika Ambrus, Marjolein Busstra, K A M HenrardAbstract:The success of the Racial Equality Directive (RED) in terms of effective protection against discrimination depends inter alia on the coherence and correlation between its Substantive and procedural provisions, both in terms of the wording of the Directive and in terms of its interpretation and application. In this article, three, "mismatches," between the Substantive Law and its application are identified. Effective protection against discrimination requires that these mismatches are avoided. First of all, a teleological interpretation of a Substantive provision should be matched by corresponding (broad) enforcement provisions. Secondly, the interpretation and application of the definitions of direct and indirect discrimination need to ensure a proper delineation of these Substantive concepts. Thirdly, these Substantive concepts have to be appropriately translated in terms of the enforcement dimension. In this respect, the ECJ has an essential role to play. In view of its special position as ultimate interpreter and guardian of the unity of EU Law, it needs to take up the task of ensuring the ‘match’, while providing adequate guidance to the national courts. Although the ECJ remedied the first mismatch through its generous interpretation of the, "fLawed," enforcement provision, it has failed to avoid the two other mismatches and thus has not realized the most effective protection possible against discrimination. It is to be hoped that the willingness to avoid mismatches between Substantive Law and its application will manifest itself more broadly in the future.
