Rob van Gestel

Loopholes, Risks and Ambivalences in International Lawmaking : The Case of a Framework Convention on Victims' Rights

The core document so far in the field of the protection of victims rights is the “Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power”, adopted in 1985 by the UN General Assembly. Starting from the notion that this is a declaration ‘only’, it was suggested by some to develop a victims rights convention, aiming to improve the legal status of the rights concerned. Following that suggestion, the initiative was taken by independent experts to draft the “UN Convention on Justice and Support for Victims of Crime and Abuse of Power”. nThis article firstly discusses the legal status of the 1985 Declaration, including the question what parts might have reached the status of international customary law. This analysis is followed by the question of what can be learned from todays academic discussions on characterising international legal standards – hard alongside soft law, etc. – and from recent debates on lawmaking in the international legal field (inter alia, communicative lawmaking and co-regulation). The article addresses some major risks, when embarking on the route of a possible victims rights convention, including experiences to be drawn from other policy areas. Having done this, it comes up with the instrument of a framework convention, combining the benefits of legal bindingness with the flexibility and ‘stepping-stone character’ of successful soft law documents. It is seen as a way out of the problems discussed in the article. After having presented some further thoughts on monitoring procedures, the article finally takes a careful look at the previously mentioned Draft Convention.

Putting evidence-based law making to the test: judicial review of legislative rationality

Both at the European and at the Member State level, evidence-based law making is on the rise. So far, the attention has mostly gone to methods of ex ante evaluation used by the legislature. In this...ABSTRACT Both at the European and at the Member State level, evidence-based law making is on the rise. So far, the attention has mostly gone to methods of ex ante evaluation used by the legislature. In this article, we argue that more attention should be paid to the role of courts as regulatory watchdogs. The CJEU seems to move in this direction by increasingly conducting a procedural (proportionality) review of legislation. However, the CJEU does not yet scrutinise the underlying data or the scientific evidence on which consultations, impact assessments and other forms of ex ante evaluation rest. This means that when these evaluations are based on poor quality data, this will also affect the CJEU’s judgement. For Dutch courts, the situation is different. They are so far unwilling to include ex ante evaluations or empirical data in a proportionality review of legislation, although the Advisory Division of the Council of State emphasises the principles of subsidiarity and proportionality in its policy-analytical review of draft legislation. This raises the question: why do courts avoid assessing the reliability of (scientific) evidence used by legislators and regulators? Here they might learn something from the US, where the Supreme Court developed its Daubert doctrine in order to guide courts in filtering out ‘junk science’ from the law-making process.

Enforcement by the New European Supervisory Agencies : Quis Custodiet Ipsos Custodes?

The financial crisis enabled the EU to move forward in terms of centralised supervision of financial institutions by moving away from the Lamfalussy committees towards a new regime of European agencies, the ESAs. Despite the newfound powers these agencies enjoy, there are several flaws in the system of supervision remaining. This contribution addresses three of these flaws: (1) the double role of national supervisory authorities as both addressees of the oversight by the ESAs and as their watchdogs; (2) the reliance on soft law with uncertain legal consequences; (3) the obscure constitutional embedding of the ESAs in the system of the TFEU and the case law of the ECJ. In order to overcome the half-way house situations the ESAs are in right now, the ESAs should be given a more independent position. Instead of deriving their legitimacy from the EU legislature via the Commission, we suggest to cut-through this ‘transmission belt’ but at the same time increase the accountability of the ESAs by codifying procedural rules with regard to stakeholder participation, consultation, and judicial review for those affected by the rules and decisions of regulatory agencies.

Evaluating the Quality of Dutch Academic Legal Publications: Results from a Survey

In the Netherlands, law as an academic discipline seems to be moving from the humanities towards the social sciences. This transition has an impact on how the quality of legal research is perceived and assessed. Legal scholars appear to have different epistemic and strategic agendas with regard to what counts as an academic or professional publication, whether law journals and legal publishers should opt for peer review or the use of metrics to evaluate the quality of legal research, and what the purpose of research evaluation by law schools should be. Behind this are long-term developments that have an impact on legal scholarship, such as a movement from national-oriented research towards a more European and international focus, a shift in focus from monodisciplinarity to multi- and interdisciplinarity in legal research, and a potential shift from financing legal research via lump sum budgeting towards more competition for research funding. These developments are important for the identity of Dutch academic legal research. This is the reason why we undertook a survey among Dutch legal scholars in order to ask them how they feel about the quality of research in general and publications in particular, as well as how this quality should be valued and assessed.

Introduction – contract and regulation: changing paradigms: A Handbook on New Methods of Law Making in Private Law

The purpose of this Research Handbook is not to expound the law of contract or to debate nice doctrinal points that arise within that body of law. Rather, this Handbook is provoked by a number of questions arising from, first, public regulatory projects that seemingly rework and repurpose the (private) law of contract and, secondly, the extensive private regulation of both transactors and transactions. With regard to the latter, we need to understand more about the ways in which business communities organise and order their transactions in the shadow of the law of contract but also we need to pay critical attention to the use of contracting power by multinational corporations who can rival nation states in setting the terms of production and trade for their suppliers. With regard to the former, we need to reflect on the co-opting of private law in the service of public purposes and, in particular, the development of a regulatory mindset that views the law of contract as a tool to be shaped and applied for such purposes. To the extent that commentaries on the law of contract ignore these questions, they neglect the actuality of transactional practices with which the law is intended to engage; they neglect the norms that actually guide contractors; they neglect the regulatory role played by some contractors; and they neglect the changing role that the law of contract plays in the regulatory environment. Such commentaries are like guidebooks that give detailed historic descriptions of city centres that are either no longer where we find the commercial and cultural life of the metropolis or that are in the process of being redeveloped for new futures.

Globalisation and Regulation: (Where) do they Meet?

Globalisation is the new buzz word in legal education, but nobody really seems to know what ‘global law’ entails and to what extent legal practice is waiting for global lawyers. What is needed is a better understanding of how globalisation affects the market for legal practitioners. Does the current law school curriculum meet the demands of legal practice in the 21st century? The argument in this contribution is that this is not the case. The law school curriculum is still dominated by the role model of the judge and the advocate, whereas the rise of the regulatory state has hardly led to serious curriculum changes. One of the changes that is necessary is the introduction of courses in legislation and regulation, at the bachelor level, to teach students what it means to translate policy goals into legal rules. This would not only serve the demands of legal practice, but also open up the law school programme to new theories and methodologies of legal research.