Autumn 2018 – Volume 11 – Issue 1

Catalogue no.: QM-AZ-19-023-EN-N

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Editorial


Changing Times

By: Anna Krisztián

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General Articles


Current Practices with Regard to the Interpretation of Multilingual EU Law: How to Deal with Diverging Language Versions?

By: Stefaan van der Jeught

European Union (EU) law is equally authentic in 24 language versions. While this multilingualism enhances legal certainty by enabling individuals to ascertain their rights and duties under EU law in their own language, it paradoxically also reduces legal certainty, as it entails that full trust may not be placed in any single language version of EU law. Indeed, according to the settled case law of the European Court of Justice (ECJ), the true meaning of EU law is to be established by means of a purposive/systematic interpretation in the light of all language versions. On the basis of court practices in the Netherlands, this article explores if, and to what extent, national judges take into account the multilingual aspect of EU law. It is assessed in that regard whether current practices raise issues of legal certainty, in particular in case of diverging language versions. It is argued that, in contrast to apparent current practices, language comparison should be a default step in the interpretation and application of EU law, as otherwise discrepancies between language versions of EU law may remain unnoticed. Moreover, national courts should refer such discrepancies to the ECJ. Lastly, national courts should use their margin of appreciation to attenuate any adverse effects for individuals who acted on the basis of a diverging language version.

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Human Rights in the Sky: Weighing Human Rights against the Law on International Carriage by Air

By: Lalin Kovudhikulrungsri

In order to unify rules on the liability of air carriers, the Convention for the Unification of Certain Rules for International Carriage by Air of 1999 (Montreal Convention) and its predecessor, the Convention for the Unification of Certain Rules Relating to International Carriage by Air of 1929 (Warsaw Convention), embrace a core value known as the exclusivity principle. Under this principle, both Conventions are an exclusive cause of action and preclude other claims which fit in their scope of application. This paper questions how courts understand and interpret the values of human rights when interacting with the exclusivity principle. To answer this question, the paper examines and analyzes case law from three different jurisdictions, namely the United Kingdom, the United States, and Canada, by employing the rules of treaty interpretation under the Vienna Convention on the Law of Treaties. The paper argues that human rights are prone to being downgraded by the law on international carriage by air in these three jurisdictions. By utilizing the rules of treaty interpretation, this paper finds two common approaches which can be applied in these jurisdictions. First, the Warsaw Convention and the Montreal Convention appear to a certain extent to be self-contained because of their exclusivity principle. Second, courts construe the term ‘bodily injury’ so narrowly that purely emotional damage, which is usually claimed in cases concerning human rights violations, cannot be pursued. Because of these two factors, persons whose human rights were breached when they were on board an aircraft cannot receive any monetary compensation solely for moral damage. In short, it seems the exclusivity principle in private international air law carries a higher value than that of human rights law.

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The Financial Distress of Individual Debtors: Points for a De Jure Condendo Reflection from a Comparative Perspective

By: Ilaria Kutufà

The article deals with the issue of over-indebtedness, which is perceived – depending on the regulatory model adopted – either as a social problem or as a market failure. In this context, it is possible to distinguish between the welfare state (debtor oriented) and the liberal (creditors oriented) regulatory models. The comparative study of these paradigms is necessary for the following reasons: the comparison between the regulations of different countries makes it possible to find common rules to draw upon with a view to harmonization, as requested by the European Union; the comparison may reveal some regulatory gaps in those countries where the phenomenon of over-indebtedness appears incessant; there are countries, such as Italy, in which the legislation, apparently hybrid and straddling the two different models, is the subject of current reflection by the legislator for a change. This research suggests that the Italian legislator could be better inspired by the solutions accepted elsewhere and stimulated, at the same time, to overcome the above-mentioned regulatory gaps. This comparison will also show how the original differences are decreasing and allow to imagine meeting points for common rules.

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Deciding to Repeat Differently: Iterability and Decision in Judicial Decision-Making

By: Laura M. Henderson

This article examines the extent to which judges have a responsibility to engage in subversive legal interpretations. It begins by showing that despite strong legal and political discourses, there remains space for the judge to resist the force of these discourses. To illustrate this point, the article discusses the strong and unified crisis discourse that was used to justify the shift in legal discourse from prosecution of terrorism to prevention of terrorism after 9/11. Subsequently, Jacques Derrida’s concept of iterability is used to examine how space to resist crisis discourse was present and used by the court of first instance in the seminal post-9/11 terrorism case of Hamdi v. Rumsfeld. The article proceeds to address the conditions under which the judge had the responsibility to resist this crisis discourse. Here Derrida’s work on undecidability is brought into conversation with Ronald Dworkin’s classic theory of judicial interpretation. In doing so, I push beyond Dworkin’s recognition of the role of political morality in legal interpretation and show that the judge cannot engage in legal interpretation without becoming a participant in the struggle over meaning. This article provides judges guidance in responding to their inevitable implication in this struggle.

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Book Reviews


Book Review: Ayelet Shachar, Rainer Bauböck, Irene Bloemraad, and Maarten Vink (eds), The Oxford Handbook of Citizenship (Oxford University Press 2017)

By: Timothy Jacob-Owens

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