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8255 results in Intersentia

Page 379 of 413

  • Statutory Regulation of Cohabiting Relationships in the Nordic Countries: Recent Developments and Future Challenges

  • from PART TWO - BREAKUP OF (NON-)FORMALISED RELATIONSHIPS
  • Edited by Katharina Boele-Woelki, Nina Dethloff, Werner Gephart
  • Book:
    Family Law and Culture in Europe
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    25 July 2014, pp 65-76

  • Summary

    THE REASON FOR SHARING ASSETS UPON A RELATIONSHIP BREAKDOWN

    Whereas the marital property regimes are quite similar in the Nordic countries, the legal response to cohabitating relationships differs greatly among these countries. Sweden is the only country where assets can be divided equally upon termination. In the other countries, compensation or restitution may be granted according to different rules. This differing approach might come as a surprise, as socio-demographic characteristics are more or less the same in all five countries.

    One characteristic of the Nordic countries’ labour force is the high participation of women, while at the same time there is a high fertility rate. The institution of the lifelong housewife is definitely a thing of the past. However, complete gender equality has not been achieved in the Nordic countries, since about 40 per cent of employed women are working part time, while very few men work part time. A large number of women in the Nordic countries continue to assume the main responsibility for childcare; they oft en earn less than their partners and, as a result, have little surplus income to invest. This fact – in my opinion – is the core of the rationale in favour of legislation pertaining to the termination of cohabiting relationships: many cohabitants – albeit far from all of them – live as financially interdependent entities, especially if the relationships have lasted for a period of several years and the couples have children. Together, they form a work unit, as well as a consumption and investment unit, and for these reasons the financial position of one party can hardly be unaffected by that of the other. The most typical example of this is when one cohabitant undertakes more than her (or his) share of the ‘unprofitable’ tasks in the family, such as childcare and the coverage of consumption expenses, and as a result ends up with no appreciable assets even after a longer cohabitating relationship. By taking on more than her share of the non-profitable tasks, she has enabled part of her partner's income to accrue, and if that income is used for investments she has contributed indirectly to the other's accumulation of capital.

  • Real-Life International Family Law: Belgian Empirical Research on Cross-Border Family Law

  • from PART FIVE - TRANSNATIONAL FAMILIES: ACROSS NATIONS AND CULTURES
  • Edited by Katharina Boele-Woelki, Nina Dethloff, Werner Gephart
  • Book:
    Family Law and Culture in Europe
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    25 July 2014, pp 323-334

  • Summary

    INTRODUCTION

    In 2004 Belgium codified its private international law. This Code of Private International Law (PIL Code) encompasses the three pillars of private international law: (1) rules on international jurisdiction, (2) rules on the applicable law, and (3) rules on the recognition and enforcement in Belgium of foreign judgments and authentic acts.

    With support from the Flanders Research Foundation (FWO-Vlaanderen), I conducted research into the concrete application of the PIL Code in the field of family law. I examined whether or not the objectives set out by the Belgian legislator have been achieved in practice and whether or not the Belgian PIL Code is a sufficiently adequate instrument to deal with ‘real-life’ international family law matters. For this study I had access to a vast amount of empirical sources which offered a clear picture of how courts and (local) authorities apply the PIL rules.

    My field-test research revealed several discrepancies between the legislative ambitions and the practice of the courts and administrations, some of which can be attributed to the context within which private international law functions. At the national level, for instance, migration policy exerts considerable pressure on international family law. The research demonstrates a true instrumentalisation of private international law by migration (law) policies, leading, amongst other things, to all kinds of limping family law relationships (limping names, limping fatherhoods, limping marriages and divorces, etc.).

    This contribution first outlines the empirical research method (section 2) and briefly illustrates the added value of empirical research in legal studies (section 3). It then reflects a few of the research findings: the nexus between private international law and migration law and their different normative approaches to identical family situations (section 4.1) and the issue of party autonomy which is not used though possible in certain fields of family law and not possible though useful in other areas of family law (section 4.2).

    EMPIRICAL RESEARCH IN THE FIELD OF PRIVATE INTERNATIONAL LAW

    The research was divided into two consecutive phases. Firstly, I focused on the objectives and choices of the Belgian legislator in drafting the PIL Code provisions in the field of family law. In a second phase these legislative objectives were compared to the actual practice of judicial and administrative authorities.

  • The Participation in Acquisitions Regime

  • from PART ONE - THE CEFL PRINCIPLES ON PROPERTY RELATIONS BETWEEN SPOUSES
  • Edited by Katharina Boele-Woelki, Nina Dethloff, Werner Gephart
  • Book:
    Family Law and Culture in Europe
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    25 July 2014, pp 25-36

  • Summary

    THE PARTICIPATION IN ACQUISITIONS APPROACH

    Participation in acquisitions is one of the two matrimonial property regimes found in the CEFL Principles (4:16 to 4:32). It forms the first part of Chapter III: matrimonial property regimes. The CEFL chose the label ‘participation in acquisitions’ because it expresses the two main features of the regime: establishing a participation which is, however, restricted to the acquisitions.

    When comparing the existing participation regimes, the CEFL primarily looked at the existing regimes described in the national reports. In Catalonia the default regime is the separation of property, with, however, a compensation claim in the case of divorce. In Catalonia there is also an optional regime of participation in acquisitions. Also under French law participation in acquisitions is only an optional regime. Several jurisdictions have opted for a participation regime as a default matrimonial property regime. In Greece the default system is a participation in acquisitions. Of particular interest was the Swiss system of participation in acquisitions (Errungenschaftsbeteiligung). In Germany we find a comprehensive system entailing a so-called community of accrued gains (Zugewinngemeinschaft).

    At a later stage the solutions of the French-German Agreement of 2010 instituting an optional regime of participation in accrued gains were also taken into account. This bilateral agreement is of interest as it combines a primary regime (regime primaire) similar to French law with a participation in accrued gains closely based on the German model. The Nordic systems of deferred community and the redistribution of property in common law jurisdictions have also been taken into account. However, because the national reports were restricted to the two national regimes most used in practice, the CEFL did not receive that many national reports dealing in detail with a participation regime.

    The issue of the best default regime was one of the points of discussion in earlier meetings of the CEFL experts. Despite a certain tendency to choose the participation in acquisitions regime as the Principles’ default regime – participation in acquisitions is applicable in 11 of the analysed jurisdictions – it is presented on an equal footing together with the community system.

  • The Community of Acquisitions Regime

  • from PART ONE - THE CEFL PRINCIPLES ON PROPERTY RELATIONS BETWEEN SPOUSES
  • Edited by Katharina Boele-Woelki, Nina Dethloff, Werner Gephart
  • Book:
    Family Law and Culture in Europe
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    25 July 2014, pp 37-62

  • Summary

    INTRODUCTION

    The CEFL eventually decided not to establish only one single matrimonial property regime but drafted two such regimes and refrained from giving one of them the function of a default regime and the other the status of an optional regime. Therefore, both the participation in acquisitions regime and the community of acquisitions regime are presented in the Principles of European Family Law Regarding Property Relations between Spouses as equal default regimes. The second regime, called community of acquisitions, corresponds with the French terminology communauté d'2cquets and the German Errungenschaftsgemeinschaft . The CEFL held that the label ‘community of acquisitions’ is preferable to the terminology ‘community of property’ because it clearly expresses the main feature of the regime as a restricted community.

    Community of acquests or acquisitions is a matrimonial regime that several jurisdictions have opted for as a default regime. This is for example the case for Belgium (communauté des acquets, Gemeenschap van aanwinsten), Bulgaria, Croatia, the Czech Republic, France (communauté réduite aux acquets), Hungary, Italy (Comunione dei beni), Lithuania, Malta (community of acquests), Poland, Portugal (regime da comunhao de adquiridos), Russia, Slovakia, Slovenia, and Spain (sociedad de ganaciales). It appears that in mostly the Romanic European jurisdictions and the Central and Eastern European legal systems the community of acquisitions constitutes the default matrimonial regime.

    Why did the CEFL decide to draft a set of Principles regarding the community of acquisitions regime?

    First, because the comparative research-based drafting of the Principles revealed that the elements of all national systems surveyed cannot be merged into one single matrimonial property regime. There are two main systems with more or less important nuances and subcategories: a community system, on the one hand, and a participation system, on the other, while ‘their basic starting points are diametrically opposed’. A community of property regime between the spouses automatically takes effect at the moment of concluding the marriage, which is not the case in a participation system that treats the property of each spouse as the owner's separate property and only upon the dissolution of the marriage does it allow each spouse to partake in the assets of the other through a deferred community or a statutory compensation clause.

  • General Rights and Duties in the CEFL Principles on Property Relations between Spouses

  • from PART ONE - THE CEFL PRINCIPLES ON PROPERTY RELATIONS BETWEEN SPOUSES
  • Edited by Katharina Boele-Woelki, Nina Dethloff, Werner Gephart
  • Book:
    Family Law and Culture in Europe
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    25 July 2014, pp 3-12

  • Summary

    A NEW SET OF PRINCIPLES OF EUROPEAN FAMILY LAW

    In 2013, the CEFL finished its Principles Regarding Property Relations between Spouses after more than six years of intensive work. The field of law which has been explored from a comparative perspective is commonly denoted as matrimonial property law. It is a complicated area of the law, which is regulated differently in the European jurisdictions that have been taken into account in CEFL's comparative survey. Moreover, the CEFL took the necessary time to consider every single detail at great length, since we were not under pressure from any organisation. A total of 17 meetings of the Organising Committee and one expert meeting of CEFL experts who wrote a national report were dedicated to the draft ing of this new set of European Family Law Principles. The result is contained in the book which all the participants in the 5th CEFL Conference have received.

    This contribution focuses on the rights and duties of the spouses. The relevant Principles are laid down in the first Chapter which can be considered as the general part of the whole set of Principles. Right from the outset it was clear that such a general part would be included and that it would naturally be placed at the beginning of the Principles. The two other Chapters and Sections are subsequently presented in this book by Nigel Lowe, Dieter Martiny, and Frédérique Ferrand.

    GENERAL AND SPECIFIC STRUCTURAL ISSUES

    The structure of the Principles is clear. Three chapters address all the issues – as far as the CEFL was able to consider – that should be regulated in the field of property relations between spouses. Two matrimonial property regimes have been drafted: the participation in acquisitions and the community of acquisitions.

    The whole set entails 58 Principles. Each Principle consists of four elements: the text of the Principle in the English, French and German languages (Principle); an overview of the international and European instruments which regulate the issue addressed in the Principle (international instruments); extensive comparative overviews of the 26 European jurisdictions represented in the CEFL as regards the aspects addressed in each Principle (comparative overview) and motivations, justifi cations and explanations of the content of each Principle (comment).

  • Chapter 1 - Introduction & Methodology

  • from Part I - Method and Problem Statement
  • Jennifer Sellin
  • Book:
    Access to Medicines
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    25 June 2014, pp 3-20

  • Summary

    INTRODUCTION

    The subject of this dissertation is the issue of access, or lack thereof, of medicines for patients in developing countries. The argument often made in that regard is that patent protection for medicines results in higher prices and therefore negatively impacts patients’ access to such medicines. That is to say, patent protection provides the patent holder with a monopoly position for a set number of years excluding competitors from the market. Such a monopoly position is argued, particularly by the pharmaceutical industry, to be justified due to the fact that patents are vital in order to recoup their substantial research and development costs; since without patent protection pharmaceutical companies would have no incentive to invest in innovation. This issue is studied from the perspective of international human rights law and international patent law and trade law. The inclusion of intellectual property rights (IPRs), such as patents, trademarks, copyright etc, into the framework of the World Trade Organisation (WTO) through the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) has brought about significant changes to the manner in which IPRs are granted, protected and enforced. It has been argued that the introduction of global minimum standards for IPRs, particularly patents, negatively affecting patients’ access to affordable medicines creates tension with international human rights law, which protects access to essential medicines. In this study this alleged tension is researched in more detail.

    Although the issue of access to medicines to an extent is a global problem, its specific characteristics differs from country to country depending on a wide range of factors on the ground, such as a country's level of development, public health burden, public health-care system, manufacturing capacity, level of intellectual property (IP) protection, environmental conditions etc. The system for protection of IPRs is largely influenced by norm-setting at the international level, particularly through the adoption of the TRIPS Agreement. The inclusion of intellectual property into the multilateral trading framework has had far-reaching consequences.

  • Chapter 4 - The TRIPS Agreement: Patent Protection for Pharmaceuticals

  • from Part II - International Framework
  • Jennifer Sellin
  • Book:
    Access to Medicines
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    25 June 2014, pp 143-224

  • Summary

    INTRODUCTION

    The previous chapter examined the issue of access to medicines from the perspective of human rights. We concluded that access to essential medicines is indeed protected under international human rights law, most notably under the right to health. Access was shown to have different dimensions: availability, physical accessibility, affordability, acceptability, and quality. It is particularly with regard to the element of affordability of essential medicines that this dissertation focuses on. Namely, as was shown in chapter 2, patent protection for medicines interferes with patients’ access to such medicines. This is argued on the basis that patents negatively affect access due to the fact that they in many cases result in higher medicine prices, and consequently the unaffordability of medicines in the context of developing countries facing severe resource constraints.

    With respect to the problem of lack of access to medicines, countries, in essence, have two options. They can either assist individuals in buying the medicines they need, for example by granting financial aid, financing the health care system or providing certain medicines free of charge, or they can ensure the that the price of medicines is a low as possible. Ideally states should use both options in order to ensure patients have adequate access, yet the first option is resource intensive which is particularly problematic for developing and least-developed countries. The second option is therefore more feasible. One manner in which medicine prices can be regulated is by curtailing patent protection for such medicines.

    This chapter will therefore take a closer look at the patenting of pharmaceutical products and processes. The focus here is on the Agreement on Trade-Related Aspects of Intellectual Property Rights within the framework of the World Trade Organisation. The reason for focusing primarily on the TRIPS Agreement is that it is one of the most recent and far-reaching international agreements within the field of intellectual property protection. It is the first international instrument to comprehensively set out substantive minimum standards for protection of intellectual property rights. The inclusion of intellectual property into the multilateral trading system has had far-reaching consequences. Except for least-developed members, all members of the WTO are required to implement the TRIPS Agreement and its minimum standards of IP protection, which has greatly influenced domestic developments in the field of patent protection for pharmaceuticals.

  • Chapter 9 - Two-level legal comparison

  • from PART III - THE LAW AND FORCED MARRIAGE: Legal frameworks concerning forced marriage in Dutch, English and international criminal law
  • Iris Haenen
  • Book:
    Force & Marriage
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    25 June 2014, pp 287-306

  • Summary

    INTRODUCTION

    Specific legislation criminalising the act of forcing someone to enter into a marriage is on the rise. During the past decade, many European countries, including Belgium, Norway, Denmark, Germany, Austria and England (as of 2014), have introduced a specific offence of forced marriage in their criminal laws. On the international level, the Sierra Leonean bush wife phenomenon sparked the question of whether forced marriage ought to be classified as a ‘new’ crime against humanity (i.e. as an ‘other inhumane act’), or whether it is caught by existing crimes against humanity such as (sexual) enslavement.

    In the previous two chapters, the legal landscapes of Dutch and English criminal (and civil) law and international criminal law were described; in this chapter, they will be compared with each other on two different levels. The first part of this chapter (paragraph 2) compares the English and Dutch legal landscapes with each other. In England as well as in the Netherlands, the fight against forced marriages is high on the political agenda: MPs and NGOs have examined existing and new measures that could be taken to tackle this phenomenon and discussions on involving the criminal law have resulted in new legislation in both jurisdictions. What will be demonstrated below is the large overlap in available measures when it comes to dealing with (intended) forced marriages. Specific legislation comparable to the FMCPA does not exist in the Netherlands. Nevertheless, as will become evident, there are several comparable measures in Dutch law. Two landscapes that at first glance seem very different, appear, upon closer inspection, to have many similarities.

    The second part of the chapter (paragraph 3) compares the national legal frameworks with the international framework.

    LEVEL 1: COMPARING DUTCH AND ENGLISH LAW

    THE STARTING POINT: A DIFFERENT POLICY AND DIFFERENT LEGISLATION

    The quintessential difference between the legal measures in the Netherlands and in England described in Chapter 7, is that England has specific civil and criminal legislation for dealing with forced marriages and even has a special taskforce that deals exclusively with cases of (threatened) forced marriage. There are several explanations for the differences between the English and the Dutch forced marriage policy.

  • Chapter 8 - Access to Medicines in Uganda

  • from Part III - Country Studies
  • Jennifer Sellin
  • Book:
    Access to Medicines
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    25 June 2014, pp 399-436

  • Summary

    INTRODUCTION

    The final and third country study conducted in this research is on Uganda. Uganda is classified as a low income country with a GNI per capita of US$500 (2010); it has a poverty headcount ratio of 24.5% of the population; a life expectancy of 53 years; and an under-five mortality rate of 98.9. Being a least-developed country it has high poverty and morbidity and mortality levels. Even so, it is one of the few African countries that has had declining HIV rates and performs above expected in its response to HIV/AIDS. The costs of antiretroviral medicines to manage HIV have decreased in the last two decades, although they are still unaffordable for many Ugandans. Most medicines are imported from countries such as China and India, and with the TRIPS transition period ending for India prices for second generation pharmaceuticals will most probably rise in the future. This is a serious problem as Uganda has limited drug manufacturing capacity.

    Uganda is a member of the World Trade Organisation since January 1st, 1995, and therefore it is bound by the TRIPS Agreement. However, as a least-developed country, it benefits from the extension of the TRIPS transitional periods which allows it to implement TRIPS (except for articles 3, 4 and 5 TRIPS) until 1 July 2021. Uganda has already started the process of reforming its intellectual property system in order to bring it in line with the TRIPS’ requirements. In that regard, this chapter first examines whether and to what extent Uganda already provides patents for pharmaceuticals. Moreover, the question will posed whether the draft Industrial Property Bill fully implements TRIPS standards and flexibilities with a view to achieving a balance between access and protecting patents within their legal framework.

    This chapter aims to examine the issue of lack of access to medicines from a least-developed country perspective. First, though, a closer look will be had at the problem of lack of access to medicines in Uganda from a least-developed country perspective (section 2).

  • General introduction

  • Iris Haenen
  • Book:
    Force & Marriage
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    25 June 2014, pp 1-10

  • Summary

    I begin to sing of rich-haired Demeter, (awesome) goddess – of her and her trim-ankled daughter whom Aidoneus rapt away, given to him by all-seeing Zeus the loud-thunderer.

    THE TOPIC AND THE CENTRAL QUESTION

    THE CENTRAL QUESTION

    ‘Marriage shall be entered into only with the free and full consent of the intending spouses.’ Article 16(2) of the Universal Declaration of Human Rights is clear about how it should be. Yet the words ‘I do’ are not always spoken out of free will: some marriages are the result of deception, manipulation, threats or physical abuse – practices that are generally not associated with the term ‘marriage’. This book is about a phenomenon known as forced marriage: a marriage (i.e. a marital or marital-like association), which at least one of the partners entered into against their will as a result of some form of coercion exerted by another party. More specifically, this research focuses on the criminalisation of this practice on two different levels: the field of Dutch criminal law and the field of international criminal law, with a particular focus on the Rome Statute of the International Criminal Court.

    The study revolves around the following central question:

    Should forced marriage be criminalised under Dutch and international criminal law, and if so, how?

    This research question is divided into three sub-questions:

  • What does the phenomenon of forced marriage entail?

  • What is the doctrinal basis for criminalisation under Dutch criminal law and international criminal law and what are the differences and similarities between these two levels?

  • What is the current legal framework for dealing with forced marriages under Dutch criminal (and civil) law and international criminal law and what are the differences and similarities between these two levels?

    • The central question can be answered after these three questions have been addressed.

  • Chapter 10 - The criminalisation of forced marriage under Dutch law and in the Rome Statute

  • from PART IV - ANALYSIS AND CONCLUSIONS
  • Iris Haenen
  • Book:
    Force & Marriage
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    25 June 2014, pp 309-356

  • Summary

    INTRODUCTION

    (How) should forced marriage be criminalised on the levels of Dutch and international criminal law, more specifically the Rome Statute? This question formed the starting point of this research and will be answered in this chapter. The previous chapters served to pave the way by providing a definition, description and legal analysis of the phenomenon of forced marriage, by comparing the Dutch legal framework with the English framework, and by presenting frameworks that may be used as guidance in criminalisation debates. There are certain similarities between criminalisation on the two levels, yet the approaches that are taken in this chapter differ. In the first part of this chapter (paragraph 2), the criminalisation of forced marriage in the Netherlands will be addressed. The principles uncovered in Part II, especially in Chapter 4, will be used as guidelines to structure the arguments contra and pro (separate) criminalisation. The second part of this chapter (paragraph 3) goes into the criminalisation of forced marriage within the regime of the Rome Statute. The specific criminalisation requirements of crimes against humanity, war crimes and genocide will be taken into consideration. For a comparison between the two levels of criminalisation and the forced marriages that take place in times of peace and in times of conflict, see Chapter 3 (paragraph 7), Chapter 6 and Chapter 9.

    THE CRIMINALISATION OF FORCED MARRIAGE AND DUTCH LAW

    INTRODUCTION

    Forcing someone to enter into a marriage against that person's will is a criminal act pursuant to Dutch law. As was argued in Chapter 7, this act is caught by several offences, such as the crimes of coercion, influencing someone's freedom to make an official statement and stalking. Many other European countries have also criminalised the practice and a 2011 European Council Convention requires all states parties who have not yet done so to turn forced marriage into a criminal offence.

  • Chapter 7 - Access to Medicines in India

  • from Part III - Country Studies
  • Jennifer Sellin
  • Book:
    Access to Medicines
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    25 June 2014, pp 347-398

  • Summary

    INTRODUCTION

    The second country study conducted in this research is on India. India is classified as a lower middle income country with a GNI per capita of US$ 1,330 (2010); it has a poverty headcount ratio of 37.2% of the population, life expectancy of 65 years, and a under-five mortality rate of 63. India is a WTO member since 1 January 1995. Although still a developing country, India is an up-and-coming economic power house. For years it has made use of the lack of (product) patent protection for pharmaceuticals to copy and produce pharmaceuticals, resulting in it now being one of the largest producers and exporters of generic medicines. However, the end of the transitional periods of the TRIPS Agreement for India in 2005 has lead to significant changes in its patent law. In implementing its TRIPS obligations in several instances it has tried to make use of the flexibilities available, such as for example section 3d of its Patents Act, which attempts to prevent ever-greening. Moreover, although the Indian Constitution protects health as a non-justiciable directive principle of state policy, its extremely progressive judiciary has interpreted the right to life to include health rights, indirectly making it a justiciable right.

    The aim of this country study is to examine whether India has complied both with its obligations under international human rights law and the TRIPS Agreement with a view to achieving a balance between access to medicines and patent protection. Firstly, this chapter will take a closer look at the problem of lack of access to medicines in India (section 2). Thereafter, the question is posed whether India has complied with its obligation under international human rights law with respect to guaranteeing access to affordable medicines by examining the constitutional and legislative framework (section 3); and whether, and to what extent, it has implemented TRIPS’ patent standards and flexibilities (section 4). In addition, TRIPS-plus developments are also briefly touched upon (section 5) before, finally, posing the essential question, namely whether India has been able to strike a balance between protection of patents for pharmaceuticals and access to such pharmaceuticals (section 6).

Page 379 of 413