By Dr. Julieta Marotta, Deputy Academic Director, MPP, UNU-MERIT/MGSoG
We approach the judicial system when facing problems. We assume that legal provisions and state organizations will serve us to find remedies to our problems. Violence against women is a global challenge. UNWomen estimates that 35% of women have experienced gender violence while less than 40% seek for help. For example, in the city of Buenos Aires (Argentina), a larger number of domestic violence complaints are being submitted daily by women.
Yet, how does access to justice legally empower victims of domestic violence? Legal empowerment uses the law as a tool for individual development, and affects legal provisions, providers, and victims. Qualitative empirical legal research is used to understand this given reality from the voices of actors.read more
Maryam Salehijam is a European Law School (Faculty of Law, Maastricht University) alumna who is currently doing her PhD research at the Transnational Law Centre of the University of Ghent under the supervision of Maud Piers. Maryam is undertaking research on the familiarity of legal professionals (including lawyers and third-party neutrals) with dispute resolution clauses which provide for non-binding ADR mechanisms such as mediation and conciliation. Her research focuses on legal professionals from the following jurisdictions: Austria, Australia, England & Wales, Germany, Singapore, the Netherlands, and the United States.
For her research, Maryam is gathering data by means of a short questionnaire which can be accessed here and which Maryam elaborates on below. Should you have any expertise in the relevant jurisdictions and would like to contribute to her research, we kindly invite you to have a look at the questionnaire or contact Maryam directly.
By Maryam Salehijam:
Call to Participate in a Questionnaire on Dispute Resolution Clauses
There is a lack of clarity regarding the obligations that arise from dispute resolution agreements with a mediation/conciliation component. In order to reduce this uncertainty, a chapter of the BOF funded PhD research of Maryam Salehijam (supervisor: Professor Maud Piers) from the Transnational Law Center at the University of Ghent focuses on the question “What are the parties’ obligations under an ADR agreement?”
To answer this question, the research is divided into two stages: the first stage involves a questionnaire that assesses the familiarity of legal professionals –including lawyers and third-party neutrals- in selected jurisdictions (Austria, Australia, England & Wales, Germany, Singapore, the Netherlands, and the United States) with dispute resolution clauses calling for non-binding ADR mechanisms such as mediation/conciliation. Moreover, the questionnaire provides willing participants the opportunity to copy and paste a model or previously utilized dispute resolution clause. In the second stage, the clauses gathered as well as clauses extracted from other sources will be content coded using the software NVivo in order to determine which obligations tend to be reoccurring in the majority of the clauses under analysis.
The questionnaire targets individuals who have experience with commercial dispute resolution. The participation in the short questionnaire will require minimum effort, as most questions only require a simple mouse-click. Please note that the information entered in the survey is kept anonymous unless indicated to the contrary by the participants. Moreover, as the analysis takes place on an aggregated level, the findings will not disclose personally identifiable information. Accordingly, the information provided will only serve scientific purposes.
To complete the questionnaire, please click here to access the survey. The closing date of the survey is 29th April 2017.
If you wish to provide the model/previously used dispute resolution clauses without completing the questionnaire, please email Maryam Salehijam at email@example.com
In the light of the upcoming general elections in the Netherlands, a lot of citizens are questioning the membership of the country in the European Union. What are the consequences of a possible NEXIT and what are the pros and cons thereof?
In this KNAW symposium in Maastricht four KNAW-members, including M-EPLI’s Jan Smits, will cover what will happen after the Netherlands leave the EU. A special focus will be laid on the areas of criminal law, private law, and economics. This event will be held in Dutch.
Time: 9th March 2017, 7pm till 9.15pm
Location: Maastricht University Hoofdgebouw, Aula, Minderbroedersberg 4-6, 6211 LK Maastricht
- Arnoud Boot, full professor of economics at Amsterdam University
- André Klip, full professor of criminal law at Maastricht University
- Corien Prins, full professor of law and computerisation at Tilburg University and soon chairwoman of WRR
- Jan Smits, full professor of private law at Maastricht University
This symposium and the debate will be moderated by Corien Prins.
Free registration is required. Please click here.read more
On 8 February I had the pleasure to accompany Jan Smits for a visit to Pavia, where we gave a presentation titled ‘Innovating Private Law: On Law and Technology’, on the third day of the Innovating Legal Studies and Practice Winter School 2017.
Stichting ConsumentenClaim has announced to start legal proceedings against Dutch Railways on behalf of a passenger. The question that the court will essentially need to answer is whether overcrowdedness in trains resulting in passengers frequently not having seating constitutes a breach of contract.
To determine whether such a claim will be successful, several legal questions need to be answered: does Dutch Railways have an obligation to perform?, does it merely have a best efforts obligation, and if so, what should be understood under ‘best efforts’?, when can a passenger reasonably expect a place to sit on the train?, how do passengers prove they have suffered a loss?, and what losses does a passenger exactly suffer? Some argue that passengers’ claims do not stand a chance. Others see such claims as society becoming more litigious and may condemn passengers of overcrowded trains who file a claim. One may even see them as despicable money-grabbing plaintiffs.
Qualifications like these are likely unjustified. Empirical research has demonstrated what victims need in case they suffered a harm or loss. They do not primarily or not only seek monetary compensation, but (also) tend to seek recognition, an apology, disclosure (what happened, and why), closure, and prevention. A train passenger is not likely to seek money, but a place to sit.
It is also known that once frustration builds, there will be individuals who seek legal enforcement to have their needs met. This could explain why train passengers are now willing to join StichtingConsumentenclaim in a battle against Dutch Railways. They may hope or expect that a claim will provide incentives to Dutch Railways to solve the issue of overcrowded trains, or at least reduce the issue.
The problem, however, is that the solution that contract law and tort law provide, the law of damages in particular, is rather one-dimensional. Even though most jurisdictions allow for different types of relief, monetary compensation is by far the most popular tool in the legal toolbox. This explains why train passengers resort to monetary compensation: the legal system forces them to. The emphasis (or: fixation) on monetary compensation is so strong that it becomes difficult to consider alternatives. This not only, partly or predominantly, explains why train passengers file claims against Dutch Railways, but also why they claim against physicians who have erred or against Malaysian Airlines after the downing of the MH17 plane.
As a result, claims such as the one against Dutch Railways expose the inability of contract law and tort law, the law of damages in particular, to properly address victims’ needs. They reveal the limitations of the monetary perspective that dominates the law. The real challenge for the legal community is therefore not to formulate an answer to questions such as ‘Did the train passenger suffer a loss?’, but to find an alternative to the dominant monetary perspective.read more
By Professor Michael G. Faure
Recently it was brought in the news that families of Americans killed by ISIS in Belgium and France sued twitter for allegedly failing to keep members of the terrorist organisation of its platform. It was a typical case whereby American victims were killed in Europe but lawsuits are brought in the United States, probably on the basis of the nationality of the victims and their relatives, but maybe also on the link between twitter and the US. This lawsuit raises a number of interesting and legal questions. From a legal perspective the first question which obviously arises in such a tort suit is whether one can hold that the defendant, in this particular case twitter, has acted wrongfully. Were such a case not brought in the US but in any of the EU Member States, the question would arise whether the behaviour of twitter would have violated a standard of care or could be considered a fault. According to the newsflashes the plaintiffs argue in court that twitter violated the Anti-terrorism Act. If that were the case in most European legal systems such a violation of an explicit statutory obligation would almost automatically be considered wrongfulness. But the question would of course arise whether that violation of a statutory duty is as clear as the plaintiffs argue. In addition to wrongfulness plaintiffs would have to show damage, which unfortunately, would in this particular case not be the most difficult aspect of the suit. But probably the most complicated requirement from the plaintiffs’ perspective is that they would also have to show a causal link between any wrongfulness by twitter (assuming that there is) and the damage they have suffered. Most legal systems would at least require that plaintiffs show that but for the wrongfulness of twitter the damage would not have occurred. In other words, it would have to be clear (and proven by the plaintiffs) that without the wrongfulness by twitter (in presumably not preventing ISIS to use its platform) the damage would not have emerged or not in the same way. In legal terms: the wrongfulness by twitter would have to be the conditio sine qua non (CSQN) for the damage. But even if plaintiffs would be able to prove that most legal systems would hold that in addition to this physical CSQN connection (often considered as causality) plaintiffs should also show legal causation in order to make twitter liable. Depending upon the formulation in the legal system it usually means that even when the wrongfulness is considered CSQN plaintiffs would still have to show that the contribution was sufficiently important, in other words adequate to cause the damage. The defendant twitter in this particular case would undoubtedly hold that other factors about which twitter has no control whatsoever were much more important in the emergence of the damage.
In addition to those legal issues one could equally ask the question which social goals these types of lawsuits serve. From a victim’s perspective the goal is obviously compensation. In order to seek compensation victims often sue others than primary tortfeasors, especially when the primary tortfeasors (like terrorists) are insolvent and therefore “judgment proof”. That has brought about a tendency in tort law to bring lawsuits against a variety of gatekeepers, varying from banks lending money, auditors or related corporations. Twitter is yet another (gatekeeper) in the long list of “indirect tortfeasors” where victims who cannot claim against direct tortfeasor seem redress. As a compensation tool tort law always has its limits. The factual and legal barriers to obtain compensation via tort law are often high. That is why in many legal systems (both in the US and in Europe) alternative compensation mechanisms have been worked out to compensate victims of terrorism, for example via first party (victim) insurance, supported through a reinsurance by the state (via the Terrorism-risk Insurance Act – TRIA in the US). However, tort suits do not only have a compensatory function (although that may be the primary interest for the victim). Tort law equally provides incentives to prevention to both direct and indirect tortfeasors and thereby tort law also has an important social function. Even when the plaintiffs in New York may not be successful in obtaining compensation, the lawsuit provides an important signal to twitter (and obviously also to similar providers of internet services to terrorist networks), being that they need to be increasingly alert to whom they provide those services and for which they are specifically used. An exposure to tort liability may hence exercise an important preventive function. If that succeeds and providers of internet services more critically screen the use and users of their services, this could in the end reduce terrorism risk. If that were the case tort law would have exercised its preventive function.
Read more: Faure, M.G., “Attribution of Liability: An Economic Analysis of Various Cases”, Chicago-Kent Law Review, 2016, Vol. 91(2), 603-635.read more