Showing papers in "Oslo Law Review in 2017"

Vulnerability and Inevitable Inequality

Abstract: The abstract legal subject of liberal Western democracies fails to reflect the fundamental reality of the human condition, which is vulnerability. While it is universal and constant, vulnerability is manifested differently in individuals, often resulting in significant differences in position and circumstance. In spite of such differences, political theory positions equality as the foundation for law and policy, and privileges autonomy, independence, and self-sufficiency. This article traces the origins and development of a critical legal theory that brings human vulnerability to the fore in assessing individual and state responsibility and redefining the parameters of social justice. The theory arose in the context of struggling with the limitations of equality in situations I will refer to as examples of ‘inescapable’ inequality. Some paired social relationships, such as parent/child or employer/employee are inherently, even desirably, unequal relationships. In recognition of that fact, the law creates different levels of responsibility, accepting disparate levels of authority, privilege, and power. Those laws, and the norms and rules they reflect, must carefully define the limits of those relationships, while also being attentive to how the social institutions in which they exist and operate (i.e. the family and the marketplace) are structured and functioning.

Data Protection by Design and by Default : Deciphering the EU’s Legislative Requirements

Abstract: In this paper, a critical examination is conducted of Article 25 of the European Union’s General Data Protection Regulation (Regulation 2016/679). Bearing the title ‘data protection by design and by default’, Article 25 requires that core data protection principles be integrated into the design and development of systems for processing personal data. The paper outlines the rationale and legal heritage of Article 25, and shows how its provisions proffer considerably stronger support for data protection by design and by default than is the case under the 1995 Data Protection Directive (Directive 95/46/EC). The paper further shows that this strengthening of support is in keeping with jurisprudence of the European Court of Human Rights and the Court of Justice of the European Union. Nonetheless, it is herein argued that Article 25 suffers from multiple flaws, in particular a lack of clarity over the parameters and methodologies for achieving its goals, a failure to communicate clearly and directly with those engaged in the engineering of information systems, and a failure to provide the necessary incentives to spur the ‘hardwiring’ of privacy-related interests. Taken together, these flaws will likely hinder the traction of Article 25 requirements on information systems development.

The Swedish Sex Purchase Act : Where Does it Stand?

Abstract: In this article, we present and discuss the intended and unintended effects of the Swedish Sex Purchase Act, which criminalises the purchase of sex within a context where the sale of sex is legal. ...

Bringing Law into the Political Sociology of Humanitarianism

Abstract: Over the past few years, the study of humanitarianism has emerged as an interdisciplinary subfield in international political sociology. This article maps out some preliminary ideas about the role of legal sociology in this project. The study of international humanitarian law has overwhelmingly been the terrain of doctrinal legal scholars, while the apparent lack of other law has meant that, until recently, legal sociologists have paid little attention to the humanitarian sector. There has also been little scholarly concern regarding the consequences of not asking questions about the role of law in the humanitarian project. We argue that legal sociology helps us understand how rules, standards and norms shape and are shaped by practices and interactions within and across humanitarian spaces globally, and how law contributes to humanitarian governance.

Legally Flawed but Politically Sound? Digital Exhaustion of Copyright in Europe after UsedSoft

Abstract: The principle of exhaustion, or the first sale doctrine (US), in copyright means that once a copy of a work is put on the market with the consent of the right holder he or she will not be entitled to control the further distribution of the copy. It is well settled that the exhaustion rule applies to the distribution of tangible copies (books, CDs, DVDs etc), but its application to the online context is controversial. In the UsedSoft case (case C-128/11) the Court of Justice of the European Union nevertheless applied the exhaustion rule of the Computer Software Directive to a situation where ‘used licenses’ of computer software were passed on to third parties enabling them to download the software from the right holder’s website. The article discusses the legal premises and the policy implications of the decision, contrasting it also to the ReDigi decision of the US District Court of the Southern District of New York.

The Legal Treatment of Muslim Minority Women under the Rule of Islamic Law in Greek Thrace

Abstract: The treatment of women in the frame of Islam has become subject to lively debate, lately concentrated in domains of the West where Islamic law seeks recognition without Islam being the prevailing creed. The discussions often are focused on concerns whether Muslim women are confronted with discriminative treatment and impediments to their access to justice. In this context, Greece occupies a unique position. Greece constitutes the only European State that recognises officially a special Islamic jurisdiction. In Thrace, Mufti tribunals are considered the cornerstone of application of Islamic law and administration of Islamic justice. However, this regime has been repeatedly criticised for failing to safeguard Muslim women’s rights. This article engages with the legal treatment of the women who belong to the Muslim Minority of Western Thrace. It examines the ways in which this religious normative regime affects their access to justice and the potential impacts that are generated from their subjection to the authority of the system thereof. The analysis is based on a methodology that combines the study of domestic and international legal scholarship with insights that were drawn from the study on representative case law of the local Sharia courts and of the competent civil courts.

The Crime against Humanity of Apartheid in a Post-Apartheid World

Abstract: The crime against humanity of apartheid has been widely neglected: jurisprudence is non-existent and the academic discourse modest. The International Criminal Court (ICC) is the first international criminal tribunal to include the crime against humanity of apartheid in its statute, notwithstanding the controversy of this crime. According to critics the crime is a South African phenomenon that has not reached the status of customary law. The provision on apartheid in the Rome Statute of the ICC builds on the Apartheid Convention, which is highly contentious and not signed by any Western State. All the more, it is surprising that apartheid was included in the Statute. Despite the fact that the crime of apartheid has never been prosecuted, this article argues that its inclusion into the Rome Statute raises some unique and interesting questions. It shows the international community’s belief in the deterrent effect of this crime, as well as its continued importance. This article will scrutinise the elements of the crime and reveal definitional challenges. It will, in particular, discuss potential contemporary situations of apartheid. The ICC Prosecutor will have to release apartheid from its historical connection in order to bring to justice perpetrators of systematic racial oppression.

Competition law through an Ordoliberal Lens

Abstract: Ordoliberalism is a German school of economic thought that advocates regulation of the free market economy based on a set of state-imposed rules guaranteed by the economic constitution, to impose a competitive order in society. It proposes an alternative method to pure laissez-faire and state-planned economy for the better regulation of the market economy, where the goals are the protection of the competitive process and individual freedom. In this paper I submit that ordoliberalism, an indigenous European competition policy, is an adequate economic and analytical tool upon which to base the practice and decision-making of competition law. My aim is twofold: to contribute to the discussion on what ordoliberalism is, in general, and in particular concerning competition policy , and offer a fresh perspective on an ordoliberal-oriented competition policy.

Inscribing Islamic Shari‘a in Egyptian Divorce Law

Abstract: As with other family law regimes, Muslim family law in Egypt plays an important role in shaping gender norms. In this article, I discuss adjudication by family courts during the period 2008-2013. I argue that the most important developments in this regard are: (1) standardisation of the way in which court rulings are written down, which contributed to a normalisation of the male-dominated nuclear family; and (2) the significant inclusion of Islamic sources in court rulings. A central question in this regard is how judges without a background in classical Islamic jurisprudence have applied the modern legal codes derived from shari‘a. I argue that a move towards greater standardisation of practice has taken place through a closer union between law and religious morality, with Quranic verses and the Sunna being used by judges in creative ways. Thus, shari‘a is continuously reinscribed in state law and its meaning construed in ways which differ from classical Islamic jurisprudence (fiqh). I also highlight the importance of key contextual factors, such as judicial training, time pressure, and the influence of computer technology, behind these developments.

Limitless Borderless Forgetfulness? Limiting the Geographical Reach of the ‘Right to be Forgotten’

Abstract: In Google Spain , the Court of Justice of the European Union ruled that, in certain circumstances, the operator of a search engine is obliged to remove search results from the list of results displayed following a search made on the basis of a person’s name. In respect of implementation of this ‘right to be forgotten’ – or more accurately ‘right to delisting’ – one of the most important issues relates to the geographical scope of the delisting; that is, once it is decided that certain search results should be delisted, what is the appropriate geographical scope of the delisting? Google is currently only delisting in relation to EU domains such as .es, .nl and .de. However, in sharp contrast, the EU’s Article 29 Working Party on data protection wants global blocking so as to ensure that EU law is not ‘circumvented’. This article canvasses the contours of this issue and attempts to advance its resolution by proposing a Model Code for Determining the Geographical Scope of Delisting Under the Right To Delisting . While the Model is presented in the EU context, it can easily be transplanted into other jurisdictions as well.

Enforcement of Security Rights in Residential Immovable Property and Consumer Protection: An Assessment of Estonian and Norwegian Law

Abstract: This article concentrates on certain consumer protection issues in Estonian and Norwegian law in proceedings for the enforcement of security rights in residential immovable property. These issues are discussed in the context of European Union (EU) law as the recent Aziz case of the Court of Justice of the European Union (CJEU)and the new Mortgage Credit Directive (MCD) have begun to set new standards for enforcement proceedings which Member States must follow. The authors conclude that no legislative amendments are currently required in either of the two countries: the Estonian and Norwegian rules on acceleration and default interest clauses, as well as on enforcement proceedings, seem to be well in line with the requirements set by Azizand by the MCD. Some of the national provisions allow for rather wide discretion, however, and it is possible that the future case law of the CJEU regarding the Unfair Terms Directive, the MCD and the Charter of Fundamental Rights will continue to create new standards for the effective protection of consumers in the enforcement of security rights. The current wave of developments seems to include a growing fundamental rights aspect as the individual’s right to housing is being increasingly promoted through consumer protection norms.

Legal Pluralism and Human Rights in the Idea of Climate Justice

Abstract: State-centric law appears ill equipped to meet human rights’ emancipatory promise in an increasingly pluralistic, unequal world facing climate change. ‘Climate justice’ has become a counterpoint to hegemonic statist, neoliberal climate approaches. However, few studies address the confluence of competing norms (including rights), power relations and multiple actors in shaping, contesting and reinterpreting climate justice in specific contexts, despite burgeoning human rights and legal pluralism research. This article explores legal pluralism’s potential for understanding rights’ roles in climate justice through examining Norway. Legal pluralism reveals how Norwegian ‘translators’ vernacularise transnational climate justice aspects, including international climate law and policy, into relevant movement frames, but within unequal power relations and hegemonic processes. These translators balance encouragement and critique of Norway’s high-profile international climate positioning, finding spaces within hegemonic discourses where movements can turn prevalent global, statist frames inward, decentering climate discourses by highlighting Norway’s structural links to climate injustice, particularly its petroleum industry. Rights are used in varying ways in both disaggregating diagnostic frames and stressing more prognostic, transformative visions. Increasingly, climate justice and Norwegian ‘ klimarettferdighet ’ [climate justice] discourses move from a focus on countering international, statist discourses to domestic distribution and economic transitions. This combines climate justice with Norwegian civic participatory and social democratic norms of active civil society and social movement involvement in socioeconomic transformations, providing potentially resonant frames for tackling climate change.

The European Court of Justice and General Principles Derived from the Acquis Communautaire

Abstract: This article aims to demonstrate and identify principles derived from primary legislation which govern European contract law. This demonstration is based on the consubstantial relationship, rooted in a market-oriented conception of Europe, which exists between principles set up by the European Union Treaties and those implicitly contained in secondary legislation. However, the view taken here is that not all ‘primary principles’ are shaped to integrate secondary legislation dealing with contract law. Only proportionality, effectiveness and, to some extent,non-discrimination prove appropriate in the context of contract law. The first part of the article supports the view that these principles have been used to remedy limits in European legislature competences in contract law. Part two takes the view that the principles have been used by the European Court of Justice as a tool of contractual policy making.

Limits to Party Autonomy in International Commercial Arbitration

Abstract: International contracts are often written in a standardised manner and without taking into consideration the applicable law. This may create the illusion that the contract is the only basis for the parties' rights and obligations, especially when the contract contains an arbitration clause. Using two typical contract clauses as an illustration (force majeure clause and entire agreement clause), this article analyses the extent to which an international contract, eventhough it contains an arbitration clause, may be self-sufficient. The article further examines the degree to which transnational sources may provide a uniform regime, and highlights the role played by the applicable law and the various legal traditions.

Disasters and Refugee Protection: A Socio-legal Case Study from Yemen

Abstract: Every year millions of people are forced to flee their homes in the context of climate change and disasters. Their needs and rights are unclear. This paper presents and discusses some findings from a socio-legal case study exploring the rights of disaster-affected Somalis and Ethiopians in Yemen. The first main findings relate to the challenges that Ethiopians faced in accessing, and succeeding with, the formal asylum process. This is discussed in light of legal aid theory and research as well as research on credibility assessments. Another category of findings relates to interactions of local, religious law and international law. This is discussed in light of legal pluralism, which helps in identifying an emancipatory potential. While complex, dynamic and dependant on regional politics and other factors, the way Islamic law was applied — and influenced other bodies of law — seemed to ensure better protection than the 1951 Refugee Convention alone. This potential should be further explored and possibly expanded in order to strengthen the rights of people displaced in the context of climate change and disasters more generally.

The Place of Human Dignity in Environmental Adjudication

Abstract: A number of scholars have argued that addressing the significant environmental problems we face today is not merely a matter of finding technical or technological solutions, it also requires that we interrogate our assumptions about the nature of our own humanness and come to terms with what this means for how we behave towards nature. This paper argues that human rights courts engage in questions of human nature and value through their use of the concept of ‘human dignity’ and, as a result, it is a concept that may have an important role to play in human rights cases of an environmental nature. Historically, however, dignity is a concept concerned with the superiority of humanity to the rest of nature, and one thought to be anthropocentric and antithetical to environmental concerns. This paper considers whether human dignity might nevertheless have a beneficial role to play in environmental adjudication by considering its role in legal adjudication from a pragmatic perspective. This paper considers an approach to dignity proposed by Jeff Malpas – one that sees humans as embedded in and constituted by place – and examines whether this approach might impact on the course of judicial reasoning in environmental cases.

Is E-justice Reform of Norwegian Civil Procedure Finally Happening?

Abstract: Fifteen years ago, the digitalisation of civil procedure was put on the agenda in Norway by the new Dispute Act. Only now, though, does e-justice appear to be gaining ground. The article sketches out the existing e-justice elements in the Dispute Act and outlines the new test schemes for electronic communication and paperless court hearings. It then tries to explain why so little has happened over the last 15 years. Against this background, the potential of e-justice reform of Norwegian civil procedure is discussed, along with the challenges it faces.

The Battle for Rights – Getting Data Protection Cases to Court

Abstract: This article compares the legal protection of privacy and personal data principally in common law jurisdictions. It points out that the growth of privacy law in these jurisdictions has traditionally centred on the ability of individuals to bring claims to court, with claims largely dealt with as a matter of common law (i.e. judge-made law). However, the absence of a generally accepted principle that individuals should be free to bring a claim in court for a breach of a statute has worked to limit the development of (statutory) data protection norms in the common law world. Nevertheless, the situation now appears to be changing with some recent cases.