Erasmus School of Law

PhD Guide 2013

PhD Guide 2013 Erasmus School of Law

Contents Introduction 3 Prof. Suzan Stoter

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Prof. Fabian Amtenbrink

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Nathalie Weber

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Erasmus Graduate School of Law – EGSL

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Behavioural Approaches to Contract and Tort: Relevance for Policymaking

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Fiscal Autonomy and its Boundaries

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Rethinking the Rule of Law in an Era of Globalisation, Privatisation, and Multiculturalisation

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Lex Mercatoria: Globalising Business Law in the 21st Century

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Monitoring, Safety and Security

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Introduction ‘There is no friend as loyal as a book.’ - Ernest Hemingway

When the JAR board 2009/2010 presented the PhD Guide 2010, it referred to the above quote. Three years later, however, this ‘loyal friend’ reference is no longer accurate, for in the meantime a large group of PhD Candidates have defended their theses, and an even larger group has embarked on a PhD trajectory at Erasmus School of Law (ESL). With an increase in international collaboration, and the start of the Erasmus China Law Centre, the face of ESL PhD Candidates has become more diverse. For this reason, the current JAR board has found that it is time to create a new guide: the PhD Guide 2013. The purpose of the PhD Guide 2013 is fourfold. Firstly, the guide is intended to inform our ESL colleagues, as well as outside scholars, regarding PhD Candidates’ research topics, making them more visible within ESL as well as outside the university. Secondly, the guide may contribute to future collaboration in research. The development of knowledge and the serving of social needs rely increasingly on successful research teams in international and interdisciplinary projects. Building up the required network is therefore a key to success for both senior and junior researchers. The guide is a good ‘address book’ for this purpose. Thirdly, it is also our hope that the guide will serve as a source of inspiration for students in the final stage of their law studies. The supply of new talent is necessary to maintain the

quality of research in the future, and we are strongly convinced that a career in academia may greatly complement or be an excellent alternative to a career in the private sector. For more information about a PhD trajectory at ESL, we would like to refer readers to the website of the Erasmus Graduate School of Law (www.esl.eur.nl/onderzoek/erasmus_graduate_ school_of_law). Fourthly, the guide provides an overview of diverse PhD Candidates: these include internal candidates (employed at ESL) and external candidates (writing a thesis in their spare time), in different stages of the PhD trajectory (from candidates in the first year Erasmus Graduate School of Law [EGSL], as well as candidates who have almost finalised their thesis). The guide also includes Candidates from the European Doctorate in Law and Economics (EDLE), based largely in Rotterdam and from the Erasmus China Law Centre (ECLC). Given the wide range of research topics, including criminology, tax law, corporate law, public law, Dutch law, European law, comparative law, law and economics, and even business economics, the content of this guide will appeal to a wide audience. Even though their topics of research vary widely, PhD Candidates at ESL have at least one characteristic in common: their membership in JAR (Juridische AIO-vereniging Rotterdam), the association for all ESL PhD Candidates. JAR aims to make each PhD Candidate’s social life as pleasant and useful as possible. To reach this goal, JAR organises monthly PhD drinks, the annual Happy New JAR Dinner, and the JAR Summer Dinner, where all ESL PhD Candidates meet informally in the congenial

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atmosphere of one of Rotterdam’s restaurants. All PhD Candidates are welcome to participate in these events. ESL PhD Candidates can follow JAR events on the SIN-Online Channel ‘JAR’. Furthermore, JAR represents the ESL PhD Candidates within the University, and it maintains close contact with the EGSL PhD Dean of Education, Dr. Elaine Mak, collaborating with EGSL in joint initiatives (e.g. EGSL information sessions combined with JAR drinks). JAR also collaborates with EPAR (Association of all PhDs at Erasmus University Rotterdam), and keeps Law PhD Candidates updated on the EPAR activities (e.g. PhD Day, PhD of the Year Award). The JAR board would like to express its gratitude to everyone who has contributed to this guide. First and foremost we would like to thank the group of 48 PhD candidates who made time to write a description of their research activities. They all prove that ESL is an inspiring place to conduct research. In addition, we would like to thank Jolanda Bloem for coordinating the smooth and timely production of the PhD Guide 2013, and for generating creative ideas on its design. We are also grateful to Mildred Ramzan-Chand, who took the photos. Further thanks are due to the ESL deans Prof. Suzan Stoter, Prof. Fabian Amtenbrink, Dr. Elaine Mak, and the EGSL team, who have kindly accepted the invitation to share with the PhD Candidates their vision of PhD research. The information in the guide will be published in book form as well as online on the ESL website. We hope the PhD Guide 2013 will become a ‘living document’, as the descriptions of candidates who start in the new academic

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year will be added to the content on the website to reflect the excellent, changing, and multifaceted PhD research undertaken at ESL. JAR Board 2012/2013 Ekaterina Pannebakker – President Ryan Gauthier – Secretary Bart Bootsma – Treasurer Alina Ontanu – Board member and EPAR Representative

Prof. Suzan Stoter I have been the Dean at Erasmus School of Law since February of this year. My appointment is for a period of four years, and I am pleased to have been given the opportunity to further improve the education and research of our law school, together with the Vice Dean, Professor Fabian Amtenbrink. The number of years of my deanship is not the only similarity with your PhD track at Erasmus School of Law (ESL). Over the next few years, each of us hopes to develop in a personal and professional way in order to invest in our academic career and to promote ESL’s reputation. In addition, each of us is working in a dynamic international academic environment, and every year ESL attracts more talented PhD students from abroad.

‘What is written without effort is, in general, read without pleasure.’ - Samuel Johnson

By collaborating with colleagues from all around the world, we can learn from each other and expand our network. Maintaining contacts with colleagues that are familiar with the legal academic environment is an important source of inspiration and innovation. By spending a research period abroad, you can expand your network even further and strengthen your academic CV. ESL has interesting and advantageous contacts with research institutes worldwide. ESL is home to a wide range of legal research disciplines, and you can specialise in the subject of your choice. However, in addition to enjoying this specialisation, it is also important to stay connected to other disciplines, because the insights gained there could well be relevant for your own research. By organising

regular meetings, the Erasmus Graduate School of Law makes sure that PhD researchers remain connected. I finished my thesis on the principles of lawful regulation − in particular the balancing of interests − at the University of Amsterdam. During my own PhD period, I learned that to be successful in research, it is necessary to develop strong skills in independent and effective thinking, in critical analysis, and in time management. And the only way to develop these skills is to take full responsibility for your PhD project. My suggestion to you would be to embrace failures as challenges and as training exercises for future successes. If you simply follow directions and close the door behind you at the end of the day, you will never progress in your research. Tenacity is essential. Furthermore, I advise you to be active rather than passive in your approach to research. Seek out the right people for advice, and never be afraid to ask for it. You won’t get anywhere if you sit back and wait for the magic to happen. I look forward to spending time together with you on our campus, and to fruitful years, rich in learning and in exciting discoveries. If I can assist you during your PhD period, please feel free to contact me with any questions or concerns. As partners in this university’s research and education mission, you are important to our university’s future and to our mutual success. Prof. Suzan Stoter Dean Erasmus School of Law

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Prof. Fabian Amtenbrink

If you are a PhD researcher at Erasmus School of Law, consider yourself lucky. In fact, this should be our faculty’s maxim. Let me explain. Erasmus School of Law (ESL) provides a stimulating and internationally oriented research environment. Our researchers are well regarded in the academic community in the Netherlands and abroad, as they set high standards in legal research, and publish in the most reputable peer-reviewed national and international scientific journals. You should take full advantage of this. By being able to participate in one of the faculty’s research programmes and frontier research groups, you have the opportunity to profit fully from ESL’s academic setting. In fact, right from the start of your academic career, you can make a significant contribution to ESL’s research output. That this possibility is highly valued becomes clear from the fact that PhD theses in the past have regularly

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been considered as key scientific output in the context of the external evaluation of research programmes. You can present your research during dedicated PhD lunch lectures, during the annual poster presentations traditionally held on the occasion of ESL’s New Year’s reception, or on the occasion of the annual PhD review day. Thus, there is ample opportunity to share and to discuss your research ideas with peers and, at least equally important, to inspire other researchers and to be inspired yourself.

PhD researchers at ESL are considered as colleagues, whose opinions are valued and whose well-being is high on everybody’s agenda. As Vice Dean in charge of research, I take a keen interest in ensuring that you find a professional academic environment that allows you to excel in your research. It goes without saying that there is always room for improvement. Hence, I am always open to your suggestions, and also to discuss in confidence any matters that you feel may be hampering your research.

ESL recognises the importance of doctoral education. This is why all PhD researchers are members of the Erasmus Graduate School of Law (EGSL). You have not only the right to receive substantive coaching and assistance from your supervisor(s) but also to benefit from an accompanying PhD education programme offered by EGSL. As a faculty, we take pride in promoting critical reflection, multidisciplinarity, and the exchange of ideas. It is our conviction that experiences shared amongst senior and junior researchers play a substantial role in this regard. In this manner, you can further develop your skills as a researcher in order to become an outstanding, socially engaged, and inspired academic professional.

In summary, ESL’s serious commitment to PhD research and to those who conduct it justifies the proclamation at the beginning of this introduction. For all those, like myself, who completed their PhD at an institution other than ESL, there rests only the comforting certitude that they have succeeded despite this apparent disadvantage.

During your time as a PhD candidate, you will lay the foundation for a personal research network from which you will benefit long after you have finished your thesis. ESL encourages you in your network-building efforts by offering logistical and financial assistance, such as for research visits abroad and by supporting the faculty’s PhD Candidate Association (JAR) and the Erasmus PhD Candidate Association Rotterdam (EPAR).

Prof. Fabian Amtenbrink Vice Dean Erasmus School of Law

Nathalie Weber Many and diverse sources of funding are available for research. The European Union, KNAW (Royal Netherlands Academy of Arts and Science), NWO (Netherlands Organisation for Scientific Research), and other funding agencies offer a multitude of opportunities. However, finding the appropriate grant is challenging, complex, and time consuming. Timing is also crucial, and external funding for your project should be considered at the earliest possible stage. Therefore, to save yourself time and considerable effort, please contact me for assistance to help you identify possible funding sources. Grant programmes If you wish to continue your career in research, the following programmes and grants may be of interest to you as a PhD student: The Rubicon grant (NWO) is for researchers who have recently obtained their PhD, and who wish to gain postdoc experience at a leading international research institute for a maximum period of two years; The Veni grant (NWO) is a personal award for outstanding researchers who have recently obtained (0-3 years) their PhD, to enable them to develop their ideas further. You may apply for a grant of up to a maximum of 250,000 euro;

a strong research concept (innovative, with suitable methodology, academically and socially significant, feasible) and a strong candidateship (as demonstrated by your curriculum vitae). Funding If you need funding for a brief period of time abroad for your research project, an application to the Erasmus Trustfonds is appropriate. If the study trip abroad is demonstrably essential for the continued progress of your PhD research project, and if the research contributes to the ‘growth and flourishing’ of Erasmus University Rotterdam, the Trustfonds is most likely to grant your request, at least in part. Service How might I be of assistance? Firstly, I can inform and advise you about the opportunities that exist for your type of research. Secondly, I can assist you in finding details of funding schemes, help with the preparation of your application (including advice on budget preparation), check the formal requirements, and organise a check by peers as to the content of your proposal. In addition, I can submit your application to funding agencies, and can coordinate communication between you, the funding agencies, the board of Erasmus School of Law, and other relevant entities. Good luck with your application.

EU (FP 7): Marie Curie Fellowships. This is the European Union scholarship programme for researchers in the initial stage of their career, and was developed to stimulate researchers’ transnational mobility. The criteria applicable for these grant programmes normally involve

Nathalie Weber Research Funding Advisor [email protected]

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Erasmus Graduate School of Law – EGSL Introduction Erasmus Graduate School of Law (EGSL) coordinates the doctoral programme of Erasmus School of Law (ESL), and is connected to the five research programmes: (1) Behavioural Approaches to Contract and Tort: Relevance for Policymaking; (2) Rethinking the Rule of Law in an Era of Globalisation, Privatisation, and Multiculturalisation; (3) Lex Mercatoria: Globalising Business Law in the 21st Cenruty; (4) Monitoring, Safety and Security; and (5) Fiscal Autonomy and its Boundaries. EGSL, which officially opened its doors in September 2012, assists first-year PhD candidates with the elaboration of their doctoral proposal, and guides them towards a successful completion of their PhD research by the end of the fourth year. EGSL provides a supportive, international research environment in which critical reflection, a multidisciplinary approach regarding the various legal disciplines, and the exchange of ideas and experiences between all ESL researchers play a substantial role. By creating an inspiring and dynamic research environment, EGSL aims to deliver

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outstanding, socially engaged, and inspired academic professionals. Good guidance What distinguishes EGSL from other Graduate Schools? We think this lies predominantly in the way that EGSL provides good guidance. PhD candidates are included in the ESL research community at different levels, by maintaining close contacts with fellow PhD candidates, with their supervisors, and indeed with the entire academic staff and researchers from other disciplines at ESL. Each PhD candidate is assigned to a supervisor (promoter), a daily supervisor, and a doctoral committee. This supervising team will follow and monitor the PhD candidate throughout the four-year appointment. A schedule of meetings with the supervisor and daily supervisor is indicated in the Training and Supervision Plan. During the whole PhD trajectory, each candidate is monitored by his or her own doctoral committee, and is evaluated at three stages. This doctoral committee consists of three senior researchers plus the EGSL Director or EGSL PhD Dean of Education. To optimise communication between PhD candidates and supervisors, EGSL organises a course for PhD candidates on how to collaborate with their supervisor and daily supervisor. In addition, a workshop series on Quality of Supervision is offered for PhD supervisors.

The doctoral programme EGSL offers a two-phased structure for the four-year doctoral programme in the form of a probationary year followed by a three-year PhD programme. After careful recruitment and screening, PhD candidates in the first ‘probationary’ year participate in an educational programme of 60 ects. The internal curriculum of 30 ects encompasses general courses on methodology, reflection, and practical skills. A further 30 ects consist of external courses geared towards the specific theme or methodological approach of the thesis – chosen by the PhD candidate and approved by both the supervisor and EGSL – and time reserved for independent study involving the candidate’s research project. At the end of the probationary year, all PhD candidates present their project during the EGSL Review Day, and each candidate’s progress is evaluated by his or her doctorate committee. The successful candidates are admitted to the three-year follow-up trajectory. Whilst focusing on education and formulating the right research questions and a sound plan concerning the thesis in the first year, PhD candidates can devote all their time to research and to completion of their thesis in these three years. They are welcome to attend follow-up courses and other activities organised for PhD candidates at ESL. Unless different arrangements are made, PhD candidates do not have any teaching obligations.

The EGSL team The EGSL Director is in charge of the management of EGSL, and is responsible to the Dean of Research. The Director discusses relevant matters in meetings of the Board of Research at ESL. The EGSL PhD Dean of Education coordinates the educational programme, and acts as a counsellor for PhD candidates. The PhD Dean invites PhD candidates for an informative talk at the start of the probationary year, and on a yearly basis further on in the PhD trajectory. If needed, the PhD Dean can always be approached regarding confidential or practical matters. The EGSL Policy Advisor assists the Director and PhD Dean in all matters concerning the management and day-to-day administration of EGSL. The EGSL Management Assistant is responsible for the practical organisation of PhD courses and other EGSL activities. Current members of the EGSL team are Professor René van Swaaningen (Director), Dr. Elaine Mak (PhD Dean of Education), Sey Lin van Munster MA (Policy Advisor), and Mariëlle Duijndam (Management Assistant).

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Research programme: Behavioural Approaches to Contract and Tort: Relevance for Policymaking

Miriam Buiten Class Actions in Europe: Costs and Benefits of Harmonisation

The economic integration in Europe has had a major impact on consumer markets, many of which have expanded across national borders. This has also resulted in substantially more transnational cases of antitrust and consumer protection, and, consequently, in a growing number of mass claims. For the enforcement of such cases, European countries have so far relied mainly on public regulators rather than on proceedings by consumers. Since individual claims in these cases are often too small to justify the costs of an individual lawsuit, victims risk remaining uncompensated. Moreover, along with the fact that public regulators have become increasingly overloaded, corporations may be insufficiently deterred from engaging in harmful practices. A policy aim of the European Commission is therefore to enhance private enforcement mechanisms, which includes integration of the currently widely varying national collective redress schemes. This proposal has elicited stiff resistance from multiple angles. The corporate sector fears that reinforcement of consumers’ procedural rights will lead to ‘excessive litigation’, while member states are concerned about the ability of a potential harmonised system to be suitable for all sectors in all countries.

E-mail: [email protected] Department: Rotterdam Institute of Law and Economics (RILE) Research programme: Behavioural Approaches to Contract and Tort: Relevance for Policymaking Promotor: Prof. N.J. Rickman

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This research project aims to study the validity of these arguments from an economic perspective. Regarding the desirability of harmonisation, it is examined whether the current regulatory diversity also constitutes a form of ‘regulatory competition’, and if so, whether or not this is beneficial – i.e. leading to more efficient legislation or to higher investments in enforcement systems. Addressing this question includes a comparison of various procedural rules on efficiency grounds, as well as an analysis of what constitutes socially desirable litigation (or conversely, excessive litigation). In this context, the American experience with class actions and partly decentralised regulation is considered to be a benchmark case. The ultimate goal is to be able to state the characteristics of an appropriate structure and content of collective redress regulations, and to present a reference framework for European policymakers. In 2012, Miriam completed the European Master in Law and Economics (with distinction), obtaining degrees from the University of Hamburg, the University of Bologna, and the Indira Gandhi Institute of Development Research in Mumbai. Before that, she obtained her bachelor’s degrees in Law and Economics at Erasmus University Rotterdam. Her master’s thesis was on the role of private enforcement for corporate governance regulation in India. She continued to work on private enforcement when starting her PhD in 2012, focusing on group litigation in Europe.

Penio Penev Gospodinov The Application of EU Competition Law in Arbitration Proceedings

This research uses law and economics methodology to identify optimal procedural rules for the application of EU competition law in arbitration proceedings. The private enforcement of EU competition law is extremely underdeveloped in Europe, and national courts do not satisfy business parties’ demand for justice in this field of law. International arbitration, as the most developed alternative dispute resolution tool, could be a viable solution to this problem, but there is a legal gap on the application of antitrust law in arbitration. Specific procedural rules have to guarantee that public interests embodied in the EU competition law are duly safeguarded by the arbitral tribunal. However, in the status quo, they create legal uncertainty and inefficiencies that increase the costs of enforcement and adversely affect individual’s incentives to enforce rights based on EU competition law. The goal of this research is to provide a costless legal framework of efficient procedural rules capable of increasing private enforcement of EU competition law as well as of private parties’ compliance with rules relating to the EU public policy. The policymaker as well as international arbitration institutions could implement our suggestions in future amendments of their arbitration rules. National courts, as well as arbitral tribunals, could identify and, when possible, avoid inefficiencies caused by their decision

on procedural aspects of a dispute. Legal practitioners could use the arguments of this research in support of their case. Therefore, business parties could count on a less uncertain, more efficient, cheaper, and faster provision of justice. During the second year of his PhD, Penio was a visiting lecturer at the Faculty of Law of the Higher School of Economics in Russia. During the first year of his PhD, Penio completed his first original paper and presented it for comments at Law and Economics conferences in Paris, Hamburg, Warsaw, and Rome, as well as multiple times in Rotterdam. Prior to that, Penio had worked for Linklaters LLP, the DG Competition of the European Commission, and in the Shanghai office of Greatway Advisory LLP. Penio has a ‘cum laude’ degree in law from Bocconi University in Milan, Italy.

E-mail: [email protected] Department: Rotterdam Institute of Law and Economics (RILE) Research programme: Behavioural Approaches to Contract and Tort: Relevance for Policymaking Promotor: Prof. R.J. van den Bergh

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Kateryna Grabovets Organisational Design and Tort Law: The Theoretical Synthesis of Organisational Economics and Economic Analysis of Tort Law Interdisciplinary studies of accidents that happen in organisations show that they have two generic causes: individual wrongdoing and organisational failures. Often the victims of accidents recover compensation for damages through the law of torts. The theory of the economic analysis of tort law is based mainly on the assumption that tortfeasors are individual actors who adjust their behaviour and the level of care according to the incentives of tort law liability regimes. However, a root cause analysis of organisational wrongdoing has been neglected. More precisely, the overview of available economic models of tort law reveals two main observations. Firstly, wrongdoings in organisations are usually explained within the traditional framework of the principal-agent relationship, where an agent’s wrongdoing may entail the liability of the principal. However, organisational wrongdoing is rarely analysed from the perspective that the organisation is a hierarchy or communication network, despite the fact that it is a sound alternative approach for the study of organisational decisionmaking within the economics of organisations, and is able to improve the study of organisational wrongdoing as well, explaining the effects of liability rules on organisations. Secondly, the economic

Email: Department: Research programme: Promotor:

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[email protected] Rotterdam Institute of Law and Economics (RILE) Behavioural Approaches to Contract and Tort: Relevance for Policymaking Prof. K. Heine

models of tort law liability are also widely based on the theory of incentives and the level of care of individuals, while organisational factors that lead to accidents are seldom studied. The organisation theory framework in organisational economics covers the organisational design’s characteristics and relates them to human fallibility. Thus, in my thesis, I suggest that organisational economics can add valuable theoretical insights and practical understanding to the law and economics study of tort law liability rules. The positive analysis of tort law liability rules from the organisational economics perspective allows a comparison of the current liability rules from the perspective of their ability to provide incentives to organisations to behave with a due level of care. Moreover, the organisational economics model contributes to the analysis of the relationships between the design of the organisation and the human decision-making errors that potentially lead to accidents. Both the organisational design of hospitals and medical malpractice liability for patient injuries in the US serve as an illustration of the theoretical suggestions. Kateryna started her PhD in Law and Economics at Erasmus University Rotterdam in October 2010. Prior to that, she completed the Master programme European Master in Law and Economics (EMLE) at Erasmus University Rotterdam and at the University of Bologna. She also obtained a master’s degree in Economics and Entrepreneurship with a specialisation in Finance from the National Metallurgical Academy of Ukraine, Dnipropetrovsk. She worked as an economist in the financial department of the bank Privatbank in Dnipropetrovsk, Ukraine.

Philip Cosmo Hanke The Law and Economics of State Aid Control

The thesis compares the different approaches taken to regulate how local, regional, or national governments in integrated economies award subsidies and other kinds of state aid to firms. It places a special emphasis on aspects of inter-jurisdictional competition, and on the principal-agent problems involved on the side of the governments, as well as on the side of the firms receiving the aid. Local and regional governments – wishing to be the first to attract a new firm to their jurisdiction – might rush their efforts and over-invest in state aid. At the same time, issues of corporate governance can lead to the result that state aid does not arrive where it should, and lands instead in the wrong pockets. These insights give rise to a variety of proposals for reform of the European State Aid Control mechanism.

International Organisations in Vienna, as well as by conducting certain legal research (e.g. on the promotion of renewable energies and on cross-border mergers in Europe).

Philip received a master’s degree in Economics (thesis on corruption in transition economics) as well as in Political Science (thesis on counter-terrorism strategies) from the University of Vienna (with exchange semesters in Lisbon, Portugal, and Perth, Western Australia). He then enrolled in the European Master Programme in Law and Economics in Rotterdam, Bologna, and Haifa (thesis on behavioural approaches to financial crises). In addition, he gained experience working for the Austrian Institute of Economic Research (WIFO) and the United States Mission to

E-mail: [email protected] Department: Rotterdam Institute of Law and Economics (RILE) Research programme: Behavioural Approaches to Contract and Tort: Relevance for Policymaking Promotor: Prof. K. Heine

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Monique Hazelhorst The Role of the Right to a Fair Trial in the Cross-border Enforcement of Civil Judgments in the EU

Within the European Union, recognition and enforcement of judicial decisions in civil and commercial matters across Member State borders were governed until recently by a harmonised procedure under the Brussels I Regulation: the exequatur. The recognition and enforcement of a judicial decision could be opposed on a limited number of grounds, including public policy. For several years now, the policy goal of the European Union has been to abolish intermediate procedures such as exequatur to enable free movement of judgments, and with it, to abolish grounds of refusal. Although this goal has not been obtained under the recently adopted Brussels Ibis Regulation, there are a number of instruments of EU private international law that do not provide for an exequatur procedure. One of these, the Brussels IIbis Regulation, gave rise to the contested judgment of the ECJ in Zarraga, in which the ECJ decided that the fact that the right of a child to be heard had been breached could not lead to a refusal to execute the judgment. The tendency to abolish exequatur and the safeguards it provides thus raises questions from a fundamental rights point of view. This research project asks whether the EU fundamental rights framework requires that a possibility remains to challenge the execution of a civil judgment − that is the result of an unfair procedure − and how

Email: Department: Research programme: Promotors:

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[email protected] Private International Law and Comparative Law Behavioural Approaches to Contract and Tort: Relevance for Policymaking Prof. X.E. Kramer and Prof. K.A.M. Henrard

this can be aligned with the EU objective of mutual trust among Member States. This question is examined by analysing the EU legal framework on fundamental rights, including the ECHR and case law from the ECtHR, the EU Charter on Fundamental Rights and case law of the ECJ, and the possibility of EU accession to the ECHR. The results are then weighed against the principles of mutual trust and mutual recognition, which have become the cornerstone of judicial cooperation in civil matters in the EU. This PhD research is part of NWO research project of Prof. X.E. Kramer: ‘Securing Quality in Cross-Border Enforcement: Towards European Principles of Civil Procedure?’. Though I am from Leiden, the city with the oldest university in the Netherlands, I moved to Utrecht in 2005 to start my studies at the Utrecht Law College at Utrecht University. After completing my bachelor’s degree in 2009, I was admitted to the Master’s Programme in Legal Research at Utrecht University. During this time, I undertook research projects in areas of EU law: financial supervision (at the Dutch Ministry of Finance), competition law (at Clifford Chance LLP), and private international law, which led me to my current position in the department of Private International Law at Erasmus School of Law.

Jaroslaw Kantorowicz Essays on Fiscal Constitutions

My thesis is written under the broad label of a fiscal constitution. For the purpose of this research, the fiscal constitution is defined as a set of institutional − particularly legal − devices, which constrain the policymakers’ discretion and choices in the area of public finance. By constraining political incentive and limiting discretion, the fiscal constitution aims to minimise the costs of negative economic, and social consequences, which are associated with permanent fiscal imbalance and ultimately high public debt. At this stage, the present thesis consists of three content chapters. Chapter 1: The Making of a Fiscal Constitution: Case Study of Poland The essay aims at providing general conjectures on how fiscal provisions of the entirely new constitution are likely to emerge. Currently, the essay documents the process of the adoption of constitutional fiscal rules in Poland. The Polish Constitution of 1997 includes the most stringent fiscal rules among all constitutions of the post-socialist countries. Chapter 2: Are Fiscal Rules Made to Be Broken? A Law and Economics Analysis of the Numerical Fiscal Constraints This essay analyses the effectiveness of numerical fiscal rules. The underlying aim of this paper is twofold. Firstly, it examines whether there is a difference in effectiveness

between the numerical fiscal rules imposed by the international treaties and by those enacted as national legislation. Secondly, it examines the effectiveness of the selected qualitative features of numerical fiscal rules. Chapter 3: Judges as Fiscal Activists: How Does Constitutional Review Shape Public Finance? In this essay, an attempt is made to investigate empirically whether there is any systematic way the judges shape fiscal policy outcomes. A key institutional variable examined in this paper is the judicial review, since it is a key legal mechanism through which Constitutional Courts intervene in politics. Jaroslaw Kantorowicz holds a master’s degree in Economics (Warsaw School of Economics, 2010) and a master’s degree in Law and Economics (University of Hamburg and Warsaw School of Economics, 2011). Both master’s theses (on welfare state dynamics in the UK and fiscal constitution in Switzerland) were supervised by Prof. Leszek Balcerowicz. In 2007-2010, Jaroslaw was research assistant at FOR (leading economic Polish think-tank). He has published several papers in peer-reviewed journals (Bezpieczny Bank, Kwartalnik Nauk o Przedsiebiorstwie, Edukacja Prawnicza), policy recommendations (FOR and IREF publications), and articles in prominent Polish newspapers (Rzeczpospolita, Gazata Wyborcza, Dziennik Gazeta Prawna).

E-mail: [email protected] Department: Rotterdam Institute of Law and Economics (RILE) Research programme: Behavioural Approaches to Contract and Tort: Relevance for Policymaking Promotors: Prof. A.M. Pacces, Prof. H. Schäfer, and Prof. S. Voigt

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Claire Leger Sanctions and Public Enforcement of Insider Trading Law in Europe

In the Europe legal framework, and despite European Commission directives, divergences in term of sanctions and public enforcement of insider trading law subsist. Member States are influenced by their different economic, financial, and legal traditions. The specificity of my approach is to compare the pertinent and appropriated nature of public enforcement strategies of laws prohibiting insider trading: namely, considering administrative and criminal law exclusively, with a special emphasis on the degree of combination of sanctions. My research question is: How do we use criminal and administrative laws in order to create sanctions and a public enforcement strategy of insider trading law coherent with the theoretical law and economics recommendations?

And more precisely: Are the current European public enforcement strategies of the laws prohibiting insider trading coherent with the theoretical law and economics recommendations? This thesis will thus contribute to the economic analysis of criminalisation by analysing under what circumstances the criminalisation of insider trading may be warranted; it also contributes to the economic theory of federalism by indicating whether such criminalisation should be imposed at the EU or at the Member State level. Given the recent EU proposal to force Member States to criminalise insider trading and market manipulation, it may be clear that the paper will also have practical and policy implications, since it could allow the shedding of a critical light, using economic analysis, on the proposals of the Commission. After obtaining a bachelor’s degree in 2007 in Economics, Management, and Law at the University Paris 1 Panthéon Sorbonne, Claire obtained two Masters 1 in Economics and in Business Law (cum laude), while at the same time she took part in an exchange programme in Mexico. In 2010, she obtained a Master 2 in Economics at Paris 1 Panthéon Sorbonne. In September 2010, she started the European Doctorate in Law and Economics.

Email: Department: Research programme: Promotor:

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[email protected] / [email protected] Rotterdam Institute of Law and Economics (RILE) Behavioural Approaches to Contract and Tort: Relevance for Policymaking Prof. M.G. Faure

Sergio Rubens Mittlaender Leme de Souza Reciprocity and Contract Law

The research project focuses on behavioural responses to breach of contract and on the role of damages for breach. The aim is to investigate both theoretically and empirically how far damages for breach of contract influence parties’ decision to fulfil contracts or not through different ways. The reaction of the victim of breach is then highlighted for its fundamental impact on social welfare. The thesis provides empirical evidence from an economic experiment that takes into consideration different dimensions and contexts in which promisors and promisees must act. Sergio completed a Bachelor of Law (University of São Paulo) and Bachelor of Economics (Catholic University of São Paulo), as well as a Master in Economics and a Master in Law (both from the Ludwig-Maximilians-Universität München). He is currently pursuing the European Doctorate of Law and Economics (Universities of Bologna, Hamburg, and Rotterdam).

E-mail: [email protected] Department: Rotterdam Institute of Law and Economics (RILE) Research programme: Behavioural Approaches to Contract and Tort: Relevance for Policymaking Promotors: Prof. V.W. Buskens and Prof. J.J. Rachlinski

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Hossein Nabilou Hedge Funds and Financial Instability: A Case for Regulation?

Hedge funds are privately organised and lightly regulated investment vehicles aimed at generating absolute returns by using a variety of trading strategies. In the aftermath of the recent financial crisis, there were concerns about hedge funds’ potential systemic externalities and their contribution to financial instability. They also came under heated criticism from politicians, especially in continental Europe. Hedge funds were demonised as being ‘crazy’ and ‘hellish’, ‘a plague of locusts’, ‘”aggressive” gangs of “speculators”, bent on snapping up firms, sacking workers and creaming off profits’. Such statements were eventually supported by policymakers in the US, leading to calls for hedge fund regulation on both sides of the Atlantic. The main aim of the thesis is to ascertain whether hedge funds generate systemic externalities and thereby contribute to financial instability. Four potential sources of systemic risk in the hedge fund industry are studied: hedge fund interconnectedness; herd behaviour; leverage; and size. The empirical evidence on hedge fund leverage and size shows that it is unlikely that they contribute to financial instability. Nevertheless, the interconnectedness of hedge funds with large, complex financial institutions, their potentially highly concentrated trading strategies, and

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their herd behaviour suggests that they can potentially contribute to financial instability. To address such problems, two main direct and indirect regulatory strategies for addressing systemic risks of hedge funds are identified. In addition, the current regulatory reforms in the US (The Private Fund Investment Advisers Registration Act, and the Volcker Rule) and the EU (the Alternative Investment Funds Managers Directive) are analysed within the above-mentioned theoretical framework. It is, inter alia, argued that because most systemic externalities of hedge funds are generated and channeled though their interconnectedness with large complex financial institutions, the mechanisms of hedge funds’ indirect regulation through their counterparties, creditors, and investors can better address their potential systemic externalities. Hossein holds an LL.B., and LL.M. in Public Law from the Shahid Beheshti University School of Law, and an LL.M. in Law, Business, and Public Policy from the University of Pennsylvania Law School. He has worked as a researcher and legal counsel in the Bureau of Legal Research and Information of the Iranian Presidential Office; in the Department of Legal Studies of the Research Centre of Iranian Parliament; and in the UNESCO Chair for Human Rights, Peace, and Democracy (Tehran). He is currently doing

[email protected] Rotterdam Institute of Law and Economics (RILE) Behavioural Approaches to Contract and Tort: Relevance for Policymaking Prof. A.M. Pacces and Prof. J.M. Klick

his PhD on analysing the regulatory responses to potential systemic risks of hedge funds in the European Doctorate in Law and Economics.

Alina Ontanu Uniform European Procedure: A Way to Efficient Cross-Border Litigation and Enforcement? A Comparative and Empirical Research National civil procedures have provided a variety of rules that parties need to apply when deciding to litigate in cross-border cases. This complexity of rules creates an uneven position for parties that need to accept different treatments for similar cases. The European Order for Payment (EOP) and the European Small Claims Procedure (ESCP) Regulations create an alternative to national procedures, making rules more transparent, and aiming to simplify and speed up cross-border litigation without sacrificing parties’ right to a fair trial and access to justice. The project’s main question is twofold. It examines whether these European procedures improve the process of cross-border litigation in terms of securing effective enforcement mechanisms while protecting parties’ rights, and whether these may serve further as a good example for future procedures simplifying cross-border enforcement and harmonising civil procedure within the EU. To answer this question, the researcher will analyse: (1) the way the EOP and ESCP are accommodated within the reality of the national legal systems and practice; (2) whether enforcement under these Regulations is effective in terms of decision issuing and execution following the abolition of the exequatur; and (3) whether the standards

and mechanisms established are a model for future European procedural instruments on enforcement. Comparative and empirical research shall be carried out in England and Wales, France, the Netherlands, and Romania. The empirical study based on surveys and questionnaires will provide a clearer image of the way these European procedures function in practice. At present, scant and fragmented information is available regarding the application of EOP and ESCP. The results of this research will provide a valuable insight for national and European legislators, for the national courts handling EOP and ESCP claims, and for practitioners providing advice or securing the execution of judicial decisions issued according to these procedures.

in public management from the Academy of Economic Studies in Bucharest. Before starting her PhD, she worked for three years as a lawyer in the Department of Financial and Capital Markets of one of the largest independent law firms in Bucharest: Nestor Nestor Diculescu Kingston Petersen.

This PhD research is part of NWO research project of Prof. X.E. Kramer: ‘Securing Quality in Cross-Border Enforcement: Towards European Principles of Civil Procedure?’. Alina Ontanu holds an LL.M. degree in International, European, and Comparative Law from the University of Toulouse 1 Social Sciences. She obtained a degree in law from the University of Bucharest and from the University of Paris I Panthéon Sorbonne, as well as a degree

E-mail: [email protected] Department: Private International Law and Comparative Law Research programme: Behavioural Approaches to Contract and Tort: Relevance for Policymaking Promotor: Prof. X.E. Kramer

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Ekaterina Pannebakker Are Intentions Binding? Developing a Harmonised Approach to ‘Letter of Intent’ in International Contracting The rules of contact formation in most legal systems have been developed based on the working of simple contracts, where negotiations rarely take place. In the meantime, however, parties have made their contracting increasingly sophisticated and dynamic. Construction and development contracts, and mergers and acquisitions of companies are a good illustration. In these contracts, the pre-contractual period – time between the start of negotiations and the conclusion of the contract – may last several weeks or even several years. The exact moment of a meeting of wills and other eventual obligations has become difficult to determine. During this period, parties often issue a ‘letter of intent’, a document reflecting preliminary agreements or understandings of parties regarding a future contract. Parties also often start to work and to invest as if the contract has been concluded. However, declaring an intention is binding only in some countries but not in others. An international ‘letter of intent’ may therefore precipitate unsecured financial interests or unwanted obligations and liability. The rules on ‘letter of intent’ at the international level are mitigated only by the trade practices and the

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[email protected] Private International Law and Comparative Law Behavioural Approaches to Contract and Tort: Relevance for Policymaking Prof. X.E. Kramer

lex mercatoria – rules created spontaneously in business circles. This PhD research aims to define the legal nature of an international ‘letter of intent’, and to assess whether a harmonised international approach in this regard can be formulated. This will be done based on a comparative law analysis of rules applicable to ‘letter of intent’ in England and Wales, France, the Netherlands, and the US. The comparative law findings will be related to the theory of contract formation, and to existing international restatements on international contracts. The outcome of this research may prove useful for contracting parties in order to map legal risks in complex international transactions, and for legal practitioners resolving disputes regarding ‘letters of intent’. This project also has the potential to contribute to the harmonisation and unification of law. Ekaterina Pannebakker holds an LL.M. degree in Business, Corporate, and Maritime law from Erasmus University Rotterdam, and the degrees of Maîtrise in French law, a Master in Russian private law (cum laude), and a Master in linguistics (cum laude). Before starting her PhD, she worked for four years as legal counsel for commercial contracts at Danone (food industry) in Russia and the Netherlands. She accepted an opportunity to start a PhD project offered by Erasmus University for the shared first place award in the Honours Master Class: Research Lab 2011.

Elena Reznichenko Law and Economics Approach to Optimal Enforcement: Monetary vs. Non-Monetary Punishment

Crime is a common feature of any society, and the way a country chooses to reduce criminality has an impact on its expenditure and success. The research project analyses the means to make crime control systems less costly but at the same time effective. From the law and economics perspective, offenders might be deterred by more severe punishment or by a higher probability of punishment. Empirical research implies that the latter has a stronger effect on crime than the former. In addition, in order to deter or prevent crime, the punishment should be proportionate to the crime. Insofar as there is a wide range of possible offences, there should be an appropriate range of types of sentences. The first part of the thesis focuses on the sentencing policy. It begins with an investigation of the available sanctions in Western society, and their effectiveness and costs. Further chapters in the thesis analyse two case studies in Finland and Germany, to learn from the experience of countries that have reduced the use of imprisonment sentences. Finally, the thesis provides a normative analysis of less costly and more effective sentencing models. The methodology used is a combination of a law and economics analysis, a cost analysis, and case studies. The research reveals that there is a vast range

of sentences that may be used effectively, and that impose lower costs on society. However, certain problems still exist that make the use of these sanctions inefficient and insufficient. A way to solve these problems is further analysed. The second part of the thesis touches upon the additional element of crime deterrence: namely, the probability of detection and punishment. The primary analysis concerns how to make crime detection more effective within a limited budget. This part of the thesis discusses ways to apply insights from behavioural law and economics to this purpose. Firstly, precise policy changes are suggested in order to benefit from people’s aversion to ambiguity. Secondly, this part offers quantitative evidence that people lack awareness regarding policy changes. Therefore, why and how to increase potential offenders’ awareness of the changed policy are suggested and analysed.

assistant and then a teaching assistant at Haifa University Law School. She undertook a one-year internship with the District Attorney’s Office in Israel in 2008, and then continued as a criminal prosecutor in the District Attorney’s Office in Israel until 2010, when she started the EMLE programme.

Elena Reznichenko holds two bachelor’s degree in law and psychology from Haifa University, and two master’s degrees in law: one is from Haifa University, and the other is a European Master in Law and Economics (EMLE) from Hamburg University, University of Gent, and Vienna University. She is also the winner of the Erasmus Mundus scholarship. During her studies in Israel, Elena worked as a research

E-mail: [email protected] Department: Rotterdam Institute of Law and Economics (RILE) Research programme: Behavioural Approaches to Contract and Tort: Relevance for Policymaking Promotors: Prof. M.G. Faure, Prof. P.A.M. Mevis, and Prof. E. Carbonara (University of Bologna)

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Erlis Themeli Competition of Civil Justice Systems in the European Union

If two companies from Germany and Spain enter into a contract, they can choose which court will be competent for claims arising from it. While making this choice, these parties will take into account different elements and will opt for the best solution. Countries are concerned by this, so they change their legislation to be more attractive to litigations or/and to keep litigations within their jurisdictions. In other words, they compete with each other by means of their civil justice systems. My research will answer this question: How do civil justice systems compete in the European Union area? In addition, it will answer these two sub-questions that stream from the main question: Under what conditions and with what consequences does this kind of competition happen? How do private parties and governments influence it, and how are they influenced by it? This research will fill the gap in the literature with an analysis of the competition of civil justice systems. It will start with the motives of the parties to choose a particular jurisdiction, and continue with the policies enacted by governments. Light will be shed on the mechanisms of competition of civil justice systems, and on the role and responses of parties and governments.

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[email protected] Private International Law and Comparative Law Behavioural Approaches to Contract and Tort: Relevance for Policymaking Prof. X.E. Kramer

This work will be important for lawyers. They can use it to understand how parties − their counter parties − behave, and what their behavioural tendencies are in different places in Europe. It can show to EU Member States how a competition involving civil justice systems works, what the different elements of it are, how it is influenced by different elements, and the specific weight that each element has. In view of the ongoing harmonisation process in the EU, this research can show whether a harmonisation, a nonbinding instrument, or more incentives to competition involving jurisdiction are better for the EU. Erlis graduated from the Faculty of Law at Tirana University in 2006. He worked as an associate lawyer for the Kalo and Associates Law Firm in Tirana from June 2005 to December 2007. From January 2008 until August 2011, he worked as Chief of the Projects Sector at the High Council of Justice in Albania. Erlis obtained an LL.M. master’s degree from the University of Groningen in 2012. In November 2012, he started his PhD research on the competition of civil justice system at Erasmus University Rotterdam.

Ilja Tillema Third-party Funding of Mass Litigation and its Influence on the Conduct of Mass Litigation

In general, collective redress is meant to enable and improve access to justice and private enforcement in cases where individuals are not prepared (because the individual interests are too small), or are not capable (because the costs of individual proceedings are too high) of seeking redress, but where the sum of the interests at stake is considerable. Since 1966, class action lawsuits in the US have represented an important instrument for resolving mass disputes. Currently, most European countries have introduced some type of collective redress, and the subject has reached the political agenda of the European Union as well. Meanwhile, growing concern about the funding of civil litigation by third parties has sparked a parallel debate. This debate is relevant for mass litigation, since its costs and risks can become decisive thresholds to access to justice. Litigants have been breaking new ground in terms of different ways of thirdparty funding, such as assigning their claims or concluding no cure-no pay agreements with private litigation funders. Regardless of the type of third-party funding, its mere presence adds another key actor to the litigation, who is or might be pursuing his own commercial interest. The concern is that this will influence the plaintiff’s litigation strategy, and might be in conflict with the interest of absent group members and/or the defendant. However, it

can be argued that to secure access to justice and improve private enforcement, funding options such as third-party financing are a necessity. This PhD research undertakes an investigation into the practices of third-party funding of mass damage disputes. The study aims to achieve a mapping and a comparative assessment of current third-party funding practices in mass litigation in the US and in selected member states of the EU. The study will investigate the topic from different angles: with regard to facts and data on third-party funding; the legal framework of third-party funding; and the economic and strategic implications pertaining to the conduct of the lawsuit. In 2010, Ilja obtained a master’s degree in Private Law (cum laude) from Erasmus University Rotterdam. Previously, she had worked at the District Court of Rotterdam as a judicial clerk, and, from January 2011, as a lecturer and researcher at Erasmus University. In July 2012, she started the PhD project to research the issue of third-party funding of mass litigation.

E-mail: [email protected] Department: Private Law Research programme: Behavioural Approaches to Contract and Tort: Relevance for Policymaking Promotors: Prof. A. Stadler and Prof. W.H. van Boom

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Yixin Xu What are the Legal barriers for Financing Sink Projects in Developing Countries?

In this project, a law and economics analysis and an empirical approach will be used to identify typical legal barriers hindering the financing process regarding sink projects in developing countries. Yixin Xu has a master’s degree in international economic law, and a bachelor’s degree in law from the China University of Political Science and Law. Research programmes in which Yixin has participated include ‘Contemporary Laws in China and International Regulations on Emission Rights’, ‘Special Maritime Subjects of Comité Maritime International’, and ‘Potential WTO Complaints and Possible Solutions on Large Aircraft Aid’.

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[email protected] Rotterdam Institute of Law and Economics (RILE) Behavioural Approaches to Contract and Tort: Relevance for Policymaking Prof. M.G. Faure

Xiao Xun Directors’ Fiduciary Duties and Liabilities

In the aftermath of financial crises, the accountability of directors and officers has again become the focus of attention on the part of investors, scholars, and policymakers. Given that market mechanisms have failed in disciplining functions, civil liabilities and regulatory regimes have been employed to deter misconduct by directors’ and officers. With regard to directors’ fiduciary duties, this legal strategy has also been transplanted from the common law tradition to the civil law countries, in tandem with shareholders’ derivative actions. Many legal scholars have emphasised that the variation of enforcement models leads to differing effects. However, the underlying rationale-ameliorating agency problems are often ignored by lawyers. This research project will apply a law and economics approach to the context of a transitional economy − China − where there are unique challenges and problems to be analysed. The origin of this legal strategy has in the meantime also been reviewed in this functional perspective. The goal of this research project is twofold: firstly, to structure this legal strategy in the Chinese context, at least in a theoretical sense, and secondly, to tentatively determine a feasible enforcement pattern to ensure directors’ compliance with duties of loyalty and diligence.

Xiao obtained a Bachelor of Laws (LL.B.) and a Master of Comparative Law (M.C.L.) at China University of Political Science and Law. During her study period, she won a university scholarship and was an active participant in international seminars and in courses in the US. She also did an internship in multinational corporations. In 2011, Xiao was awarded a scholarship by the Chinese government, and commenced her PhD research at Erasmus School of Law.

E-mail: [email protected] Department: Rotterdam Institute of Law and Economics (RILE) Research programme: Behavioural Approaches to Contract and Tort: Relevance for Policymaking Promotors: Prof. M.G. Faure and Prof. Y. Li

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Bo Yuan Settlement of Foreign-related Commercial Disputes in China: Litigation and Arbitration

This research aims to respond to the challenges presented by the increasing number of foreign-related commercial disputes in China. Since 1979, the start of the ‘openingup and reform’ policy, China has achieved considerable success in attracting foreign capital. However, the growth of the foreign investment has inevitably led to an increase in foreign-related commercial disputes. Since China maintains a relatively complicated and conservative legal system for the protection of foreign investment, for the foreign investors, in seeking legal remedies when they are involved in disputes, the procedure is not as straightforward as it is for local enterprises. As a result, the question as to whether the foreign investor can obtain effective legal remedies

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[email protected] Rotterdam Institute of Law and Economics (RILE) Behavioural Approaches to Contract and Tort: Relevance for Policymaking Prof. M.G. Faure and Prof. Y. Li

when involved in disputes is receiving greater attention from current and potential foreign investors in China. This research will examine China’s current legal system as it pertains to foreign investment − both the positive law and the law in practice − and will provide insight into the settlement of foreign-related disputes in China. Bo Yuan works as a PhD Candidate with the Faculty of Law and Economics at Erasmus School of Law. In September 2012, he started his PhD study on the topic of settlement of foreign-related commercial disputes in China: litigation and arbitration. His research interest is in international trade, disputes settlement, and international law.

Research programme: Fiscal Autonomy and its Boundaries

Renate Buijze Charitable Fundraising for the Arts in the Era of Globalisation: International Tax Barriers for Arts Organisations Donations to the arts are often supported by tax incentives. However, when donations cross borders, tax incentives do not always apply, thus hindering international fundraising. Several solutions exist to make international donations possible, with the benefits of tax incentives. These solutions can be public (e.g. tax treaties and bilateral agreements) or private initiatives making use of public measures (e.g. foundations operating abroad, ‘friends of’ charities, and mediating parties). Nevertheless, it is still difficult for arts organisations to find an appropriate way to raise funds abroad, since information costs are high. Therefore, in order to identify best practices in context, this research evaluates solutions from the perspective of the arts organisations. Fundraisers for arts organisations as well as policymakers can benefit from this research. The main research question to be answered is: ‘How can the current existing solutions for tax-efficient international charitable giving be used optimally by arts organisations?’ To test the

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[email protected] Tax Law Fiscal Autonomy and its Boundaries Prof. S.J.C. Hemels

different solutions, an assessment framework involving a combined approach of tax law and cultural economics is applied. In 2010, Renate obtained her master’s degree in Cultural Economics and Cultural Entrepreneurship at the Erasmus School of History, Culture, and Communication. After graduation, she worked for two years raising financial support through sponsorship for cultural events in Rotterdam. In 2012, Renate started her PhD in the Department of Tax Law.

Esther Huiskers-Stoop Self-regulation in Dutch Taxation: The Shift to Horizontal Monitoring

For Dutch tax purposes, horizontal monitoring can be defined as a means of administrative control based on informed trust between tax authorities and individual taxpayers. In exchange for a voluntary provision of tax information, taxpayers may obtain fiscal certainty in advance. The project focuses on measuring the effectiveness of horizontal monitoring for Dutch taxation. More compliance, increased certainty, cost savings, and better relationships are expected to be the result of this new method. The research aim is to justify these expectations in comparison to traditional control, while an additional aim is to draw conclusions on the importance of these indicators for the decision whether to shift to the new method. The research target group is middle-sized Dutch companies. Moreover, the working of the mechanisms of horizontal and traditional monitoring and international developments in the field of compliance-based tax control will be investigated. For these reasons, the project combines empirical and fiscal legal research, and the interviews and survey are supplemented by a study of fiscal legal literature. If horizontal monitoring turns out to work in the complex field of taxation, it will not only improve Dutch tax control itself but may also be an incentive to foreign tax authorities to introduce a similar method. Furthermore, it may offer opportunities to other complex administrative control fields, such as in the sector of finance.

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Esther Huiskers was awarded two master’s degrees in Law at the University of Amsterdam (Dutch Law and Tax Law, 1997). She worked for over five years as a tax advisor with KPMG Meijburg & Co in Amstelveen, in both national and international practice. In addition, she worked for almost six years as a lawyer in the Dutch tax litigation practice of Jaeger Advocatenbelastingkundigen in Amsterdam. In 2009, Esther started her PhD thesis on the shift to horizontal monitoring in Dutch taxation.

[email protected] Tax Law Fiscal Autonomy and its Boundaries Prof. P.A.M. Diekman and Prof. J.C.M. van Sonderen

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Anneke P. Monsma Comparative Study on the Principle of Abuse of Competence Restricting the Local Fiscal Autonomy Sub-central governments do have a degree of autonomy in performing their tasks, and part of that local autonomy involves governments gaining their own revenues by levying taxes. This local fiscal autonomy is, for example, legislated in the European Charter of SelfGovernment. Firstly, the PhD research focuses on the meaning of local fiscal autonomy, both in an economic, a philosophic, a historic, and a fiscal-legal way, and how this is established in the legal systems of the examined countries (Netherlands and Belgium at least, perhaps later on Germany and the United Kingdom as well). Secondly, the boundaries of the fiscal competence of sub-central governments will be investigated. These boundaries are expected to be different, according to the type of legal system. For example, the system of local taxes in the Netherlands is a closed one: the central government decides which taxes can be levied by communities, and, in certain cases, also fills in some of the essentials of taxes, such as the taxable object and the taxable person. Thus, the main boundary is the principle of legality, in the sense that communities cannot overstep the competence given by the higher authority. In Belgium, an open local tax system exists; communities can set taxes as they see fit, as long as it is in the public interest. Therefore, limits to the fiscal autonomy are to be found in

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[email protected] Tax Law, ESBL (research centre) Fiscal Autonomy and its Boundaries Prof. M.J.M. de Jonckheere and Prof. S.J.C. Hemels

the jurisprudence on common legal principles − such as the principle of equality − rather than in laws and regulations of higher authorities. The last and main part of the research will be the analysis of a specific boundary of local fiscal autonomy: namely, the prohibition of abuse of fiscal competence. Jurisprudence on this legal principle − of proper legislation instead of proper governance – will be analysed at national level, in the Netherlands and Belgium, and at supranational level, the CJEU and ECtHR. An interesting question is whether a relationship can be found between the way of testing local taxes against this principle and the specific legal system and/or the level of fiscal autonomy in a country. One might ask to what extent are communities free to set taxes as they wish, and when do they meet the limit of the principle of abuse of competence. Anneke studied tax law, with a specialisation in local taxes, at ESL, and graduated in 2005. She then worked as a tax advisor for sub-central governments. Since 2008, she has worked as a scientific researcher at the local tax research centre ESBL (Erasmus Studiecentrum voor Belastingen van Lokale overheden), which is part of the tax law department at ESL. In November 2012, the board of ESBL gave her permission to start the PhD research. In addition to her part-time job at ESBL, Anneke is also a professional singer (soprano), specialising in a baroque- and lied-repertoire as well as in choir singing.

Leo Neve Reporting or withholding: In Search of a Common Model for An Automatic Exchange of Information for Tax Purposes Taxation of income from movable capital has long been a challenge for tax authorities. The reason is that often the returns on an investment are higher if the investment is made abroad, and investing abroad provides opportunities for tax evasion (criminal intent not to disclose income). Restrictions on the export of capital pose a barrier to investing offshore (outside its home jurisdiction), but most capital export restrictions have been lifted. In order to capture evasion of taxable income, and to obtain control information, the EU Savings Directive came into force on 1 July 2005. Its application is restricted to interest paid to natural persons resident in EU member states. However, the directive must be rewritten in order to capture more types of income and to charge the ultimate owner of the income. Developments are currently scandal driven, and global tax governance is lacking.

objective is to find a model that is balanced between complete and fair. A harmonisation of the taxable base would help. Leo Neve has been a Tax Advisor and Director of NEVE Tax Consultants since 1991. He graduated from the University of Leiden Law Faculty, specialising in taxation. Following his studies, Leo worked in various organisations, as a tax inspector for the Dutch Ministry of Finance, as an associate and later as a partner of America & Schutte tax law firm in Breda, and as a tax counsel with the Nauta Dutilh law firm. He is a member of the Dutch Association of Tax Advisors, the International Bar Association, the International Fiscal Association, and the International Tax Planning Association. His expertise lies in international tax planning involving high-networth individuals, structuring of international investments and cross-border financing structures, international royalty structures, and trust and estate planning.

The research looks at the current transparency models, tests them for efficiency, and tries to develop a common model that is also efficient, effective, fair and ‘inclusive’ in the sense that all countries can benefit from the system. Global, legal, and operational requirements of an all-inclusive system are researched. The

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[email protected] / [email protected] Tax Law Fiscal Autonomy and its Boundaries Prof. A.C.G.A.C. de Graaf and Prof. R. Widdershoven (Utrecht University)

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Margot Oenema The Procedural Law Aspects of Horizontal Monitoring

A worldwide paradigm shift in the relationship between national tax authorities and taxable companies is visible. ‘Enhanced relationships’ are seen as a solution for, on the one hand, filling the gap between the need to enforce compliance of the tax law and regulation, and, on the other hand, regarding the limited capacity of the Tax authorities to actually enforce compliance. In the Netherlands, the enhanced relationship between Dutch tax authorities and the taxpayer is defined as ‘horizontal monitoring’. While vertical monitoring is based on checking retrospectively, horizontal monitoring is a form of working in the present, on the basis of mutual trust, understanding, and transparency between the enterprise and the tax authorities. Sociological studies have shown the voluntary compliance of the taxpayer will increase if he is ought to be trustworthy. Horizontal monitoring is supported by two pillars: firstly, a good relationship exists between the tax authorities and the taxable enterprise, which is recorded in a compliance agreement; secondly, the enterprise should implement a tax control framework with which it can detect the risks relation to tax. These pillars lead ideally to the goal of horizontal monitoring: namely, the reduction of vertical monitoring.

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I point out that vertical monitoring will not disappear. The tax authorities are still exclusively in charge, irrespective of whether they confront the taxpayer with, for instance, an investigation, or in the event they discover a violation of the tax law, resulting in a criminal charge. My research focuses on this question: Can horizontal monitoring be embedded in the existing supervisory structure in tax, taking into account both the written and unwritten law? The desirability of my research is in the fact that enhanced relationships are here to stay, especially given the worldwide shift, but that they should remain within the legal framework without harming the legal position of the taxpayer. Margot (1986) graduated cum laude from Erasmus University with a master’s degree in tax law in 2008. During and after her study, she worked as a tax advisor at a ‘big 4 firm’ for several years. Currently, she works both as a tax lawyer at a law firm and as an assistant professor at Erasmus University. In addition, Margot publishes regularly, serves as editor on several tax magazines, and also gives courses and lectures. She founded the youth department of the ‘Vereniging voor Belastingwetenschappen’ in 2012.

[email protected] Tax Law Fiscal Autonomy and its Boundaries Prof. M.W.C. Feteris

Richard Snoeij International Tax Law aspects of Foreign States and their Sovereign Wealth Funds

In recent years, cross-border investment activity involving States has increased, and often occurs through State-owned special purpose investment funds, also known as Sovereign Wealth Funds (SWFs). SWFs are either established as legal entities separate from the State or as a pool of assets without a separate legal identity. With total assets under management estimated at USD 5.2 trillion as per January 2013, SWFs are recognised as important players in the international financial market. The rise of SWFs in recent years has raised a number of questions in the field of international taxation. This research focuses on international direct tax aspects related to foreign States and their SWFs from the perspective of the investment-receiving State. It examines questions related to the application of the existing framework of bilateral tax treaties as well as to the customary international law principle of sovereign immunity. The research also touches upon international tax policy questions related to SWFs. Richard is a researcher and lecturer in the tax law department of Erasmus School of Law, as well as a tax advisor at PwC. Richard has published in Dutch and international tax journals.

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[email protected] Tax Law Fiscal Autonomy and its Boundaries Prof. A.J.A. Stevens

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Maarten F. de Wilde Sharing the Tax Pie: On Fairness in the Allocation of Corporate Tax in an Emerging Global Market

Issue. Today’s international corporate tax regime operates arbitrarily, with corporate tax being a distortive tax triggering double taxation or non-taxation. The international tax regime is inconsistent with economic reality, since corporate taxation and economic reality do not align. This tax regime operates arbitrarily to the benefit or detriment of nationally or internationally active entrepreneurs. At the end of the day, this entails spill-over effects and welfare losses, with the result that the situation in our globalising economy worsens.

accepting the authority of currently applicable national, international, and European tax law. The research considers applicable law to serve illustrative rather than argumentative purposes.

Question. The question arises as to whether a proper alternative for taxing multinational enterprises (MNEs) in a globalising economy can be modeled. Can we create something better? A proper model? In other words, how should corporate tax on corporate business income derived by publicly held MNEs be distributed between states and amongst taxpayers in a global market? To determine what this type of international tax regime should look like, the qualitative research seeks to set forth a tax framework alternative to the one currently found in international taxation. The study aims to develop building blocks for an optimal approach towards taxing MNE-business income (‘Tax Allocation 2.0’). It therefore departs from the starting point of not necessarily

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[email protected] Tax Law Fiscal Autonomy and its Boundaries Prof. A.J.A. Stevens

Research programme: Rethinking the Rule of Law in an Era of Globalisation, Privatisation, and Multiculturalisation

Nathanael Tilahun Ali States in International Law and Policy on Terrorism: Frameworks of International Cooperation and Contestation Designing international legal and policy responses to the problem of terrorism involves a paradigmatic tension between diverging systemic implications that arise from two conceptions of the position of the state in the process. On the one hand, international counterterrorism is premised on the policing role of the state, thereby casting the state in the role of a neutral, solution-providing actor; on the other hand, the state itself is implicated in the problematique of terrorism, either as a direct and indirect perpetrator of acts of terrorism or as a source of social and political grievances that induce non-state actors to engage in terrorism as a reaction. Hence, depending on the choice between the casting of the state in the roles of either ‘police’ or ‘suspect’ in the problematique of terrorism, international legal and policy counterterrorism undertakings could be organised along the models of inter-state mutual assistance (cooperation) or inter-state mutual scrutiny (contestation). The arrangement of an international counterterrorism undertaking along either of these models, in turn, entails diverging implications for states’ internal regulatory and judicial sectors: efficacy and legitimacy. These implications are of particular significance in the context of developing and post-conflict states where, particularly in the post 9/11 international political climate, the projects of state building (strengthening state

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[email protected] Public International Law Rethinking the Rule of Law in an Era of Globalisation, Privatisation, and Multiculturalisation Prof. E. Hey

institutions) and counterterrorism have risen in prominence and intersect. In my PhD research, I aim to develop further the conceptualisation of this paradigmatic tension, and to analyse how international law and policy on terrorism, primarily centred at United Nations platforms, addresses it. I aim to substantiate this conceptual exercise with an assessment of legislative and policy undertakings in select states from East Africa, a sub-region where the agendas of both counterterrorism and state building are prominent. My primary object is to enhance academic knowledge by developing a distinct conceptual framework to analyse international legal and policy undertakings on terrorism, particularly as they intersect with the issue of state building; my secondary object is to engage policy debate (application). Nathanael started working as a PhD candidate in the Department of Public International Law in December 2010. Prior to that, he worked in Ethiopia in a human rights NGO as a legal aid practitioner in criminal law, in addition to holding brief positions as a part-time university teaching assistant and a reporter for a national English weekly newspaper. Nathanael completed his LL.M. (cum laude) in International and European Public Law at Erasmus University Rotterdam in August 2010. His research interests are international law theory, the politics of international law, and critical international legal studies, with a particular focus in the areas of use of force, international terrorism, conflict resolution, and global (political) governance institutions.

Wietse Buijs Terror and Torture in the Wake of 9/11: Legality in Response to Terrorism and in Striking New Balances in the Separation of Powers Somewhere in an American city a bomb has been planted. The terrorist is in custody, but refuses to talk. When the bomb explodes, it will kill many people. Given this certainty, would we torture the terrorist in order to extract a confession? In the light of this and similar scenarios, absolute prohibitionists are gradually being tempted to accept the notion of torture in order to preserve the greater good. Considering that in European countries such as the Netherlands a ban on torture is the norm, can we be challenged into rethinking the absolute ban on torture, as the US seems to have done? Is torture legal in the US, or is it simply not an issue in the political arena and therefore ignored? How is the judicial branch to respond to state-administered torture, and how is it to deal with detainees still being held without trial in American-controlled prisons? These questions still concern contemporary issues, even after 12 years of war on terror, and are waiting to be answered.

currently working full time for ESL as a teacher and as a project manager for ESL’s digital learning environment.

Wietse Buijs holds an L.LM. in legal theory, specialising in Philosophy of Law and Human rights. After writing his thesis on the subject of the violation of Habeas Corpus by American presidents throughout US history, Wietse felt that PhD research on terror and torture in the wake of 9/11 was an appropriate theme to explore. In addition to his PhD research, which he is carrying out in his spare time, Wietse is

E-mail: [email protected] Department: Jurisprudence Research programme: Rethinking the Rule of Law in an Era of Globalisation, Privatisation, and Multiculturalisation Promotor: Prof. M. Hildebrandt

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Yang Feng State Unity and Local Diversity: China’s Lawmaking Decentralisation Reform and Central-Local Lawmaking Relations The main focus of this study is to analyse the process of the lawmaking decentralisation reform in the post-Mao era (1978-present), along with China’s central-local lawmaking relations. It can be said that the rapidly increasing legislatures in the post-reform era are the most conspicuous phenomenon to arise from China’s broad legal system reform. In the course of the reform, more than 800 laws and administrative regulations have been passed by the National People’s Congress (the NPC) and the State Council; in addition, 6000 local regulations and administrative rules have been passed by local people’s congresses and local governments. For a variety of reasons, the generations of China’s leaderships highlight ‘Socialist Legality’, and, in turn, the overwhelming growth in legal norms has been strengthening the ‘Rule by Law’ in China. In the meantime, concomitant issues ensue, and remain unsolved, and some are still largely unexplored in academic circles; most noticeable of these are ones concerning China’s central-local legislative relations. In this sense, my research topic is of considerable significance in theory and practice. By means of a combined doctrinal, empirical, and comparative research method, this research will be carried out across four dimensions: the broad socio-

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[email protected] Constitutional Law and Administrative Law Rethinking the Rule of Law in an Era of Globalisation, Privatisation, and Multiculturalisation Prof. R. de Lange and Prof. Y. Li

economic context of the reform; the changing course in the constitutional line; the real power trends among various lawmaking institutions; and more importantly, a theoretical analysis on how to rationalise the relationship among various legislative institutions, in particular those involving central-local lawmaking. With regard to the last dimension, special emphasis is placed on the delineation of legislative authority, and on how to improve the current legislative supervision system. Yang Feng received his bachelor degree in law at the China University of Political Science and Law (Beijing) in July 2010. From September 2010 to July 2012, he undertook his master’s degree in Constitutional Law and Administrative law at the same University. In June 2009, one of his theses on China’s evolving national lawmaking institutions resulted in an award from the Beijing Educational Bureau and the Chinese Science Technology Association, respectively. During the study for his master’s, Feng participated in three research programmes concerning the development of China’s decision-making procedure, fundamental rights protection, and central governmental institutional reform. In September 2012, Feng started his PhD programme in the Department of Constitutional Law and Administrative Law, in order to answer the twofold academic question as to how to assess China’s lawmaking decentralisation in the Post-Mao era and how to streamline China’s central-local lawmaking relations.

Ryan Gauthier The Role of Law in Olympic Game Host Selection

One of the primary roles of the International Olympic Committee is to select the cities that will host the Olympic Games. In the selection process, the IOC asks cities to comply with various legal demands, such as implementing particular legislation in support of the Games. Not addressed in these demands, however, are the issues of labour rights or human rights. The absence of these rights in the selection of a host city is becoming problematic, as the cities that host the Games are increasingly from regions and states that do not have a strong record of protecting labour or human rights.

Ryan started his PhD research at Erasmus University Rotterdam in September 2011. Prior to this, he had worked at Heenan Blaikie, LLP in Vancouver, Canada. A member of the New York Bar, Ryan received his J.D. from Harvard Law School in 2010. During law school, he was an editor of the Harvard Environmental Law Review as well as the Harvard Journal of Sports and Entertainment Law. He worked as an intern for a team in the National Hockey League, and with the United National InterAgency Project Against Human Trafficking (UNIAP) in Bangkok, Thailand.

Ryan’s research will examine the host selection process, and whether labour and human rights, particularly in regard to preventing the use of forced labour on Olympic-related projects, can be included in the host selection process. The research will also examine the international law implications of the IOC’s legal status and its conduct in addressing these issues. The study will be interesting for cities that bid to host the Olympic Games, as well as for sporting organisations that engage in a host-selection process for their events, as a thorough analysis of the role law plays in the bidding process will be undertaken. The research also hopes to benefit human rights organisations through an in-depth discussion on the legal character of the parties involved in hosting the Olympic Games, and their attendant responsibilities.

E-mail: [email protected] Department: International and European Law Research programme: Rethinking the Rule of Law in an Era of Globalisation, Privatisation, and Multiculturalisation Promotors: Prof. R.C.R. Siekmann and Prof. E. Hey

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Petra Mária Gyöngyi Reconstructing the Liberal-democratic Normative Framework for Judicial Organisation in Central and Eastern Europe Petra’s research concerns the operationalisation of judicial reforms in Central and Eastern Europe in the multi-level legal system of the European Union. In particular, she focuses on improving judicial management and specialisation. In her research, she addresses the question as to how the liberal-democratic normative framework for judicial organisation should be refined in order to accommodate judicial reforms in new liberal democracies in the context of the European Union. Courts are considered to play a primary role in consolidating political and economic reforms and in guaranteeing human rights in new liberal democracies. Hence, for new liberal democracies in Central and Eastern Europe, judicial reforms were evaluated based on their adherence to EU standards. The dependence of the European Union legal system on national courts amplified the need to comply with minimum European standards in the field of judicial organisation. Nevertheless, both identifying and implementing European standards in new EU member states remains a problem. In addition, although the constitutional framework governing judicial reforms in Central and Eastern Europe has already been subject to scientific research, the normative framework remains underexposed. Petra’s research aims to address these shortcomings.

Email: [email protected] Department: Jurisprudence Research programme: Rethinking the Rule of Law in an Era of Globalisation, Privatisation, and Multiculturalisation Promotors: Prof. F. Amtenbrink and Dr. E. Mak

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In her research, Petra adopts a methodology that combines classical legal methods, comparative law, and constitutional theory, as well as an empirical component, by conducting semi-structured interviews with judges and experts in judicial reforms in Hungary and Romania. In doing so, she strives not only to deliver a timely theoretical contribution on guiding and evaluating judicial reforms in new EU member states through European standards but also to provide specific proposals for solving controversies in guaranteeing the rule of law in Hungary and Romania. Accordingly, through its societal component, the research offers insights for legislators, policymakers, and judiciaries at the national and European level. The scientific contribution of the research facilitates an understanding of the liberal-democratic framework for judicial organisation, the constitutional change in national and supranational legal orders, and the further development of EU constitutional law. Petra obtained her bachelor’s degree in law from the Babes-Bolyai University in ClujNapoca, Romania. After graduation, she completed her LL.M. in Human Rights with Merit at the Central European University in Budapest, Hungary. After completing her degrees, she was a trainee at the European Court of Human Rights. In November 2010, she started her PhD research at Erasmus School of Law. Since 2011, she has been a junior researcher with the School of Human Rights Research. She attended the Academy of European Public Law in Sounio in the summers of 2011 and 2012, and will be visiting the Research Institute on Judicial Systems in Bologna in the spring of 2013.

Arien van ‘t Hof The Influence of National Differences on Macroeconomic Imbalances within the EMU: Institutional and Ideological Causes of Imbalances and Legal Acknowledgment of Them Conducted from a legal and economic perspective, this research aims first at understanding the causes and effects of the macroeconomic imbalances within the Economic and Monetary Union (EMU), which are leading to a diverging competitiveness among member states of the EMU. In particular, the role that national institutional and ideological differences might play in these imbalances is investigated, not only by combining strands of literature from various disciplines –economics and political science – but also by means of an empirical analysis. Moreover, in this research the extent to which existing and proposed legal instruments take these national differences into account is investigated. Since macroeconomic imbalances have only recently shown up on the radar screen of policymakers – after the start of the European economic crisis – it is highly interesting to examine the causes of these imbalances, especially to determine whether they can be explained in terms of institutional and ideological differences between member states of the EU. If this is the case, a further question concerns whether the legal instruments that address these imbalances acknowledge and take these differences into account.

Thus, this research intends to increase the understanding of macroeconomic imbalances in order to be able to evaluate the legal instruments that are created to address them. If institutional and ideological differences between member states could partly explain these differences, this would have strong implications for the evaluation of the EU legal instruments that address macroeconomic imbalances. The focus of attention will be on whether these procedures take the differences into account, and whether they are able to deal with them. Before starting his PhD in 2012, Arien van ‘t Hof studied economics and law at Erasmus University of Rotterdam. He received his MSc in International Economics in 2012. In the same year, he obtained an LL.M. in International and European Public Law; his master’s thesis concerned the question as to whether Eurobonds could be an effective solution to the European sovereign debt crisis from an economic and legal perspective.

E-mail: [email protected] Department: International and European Law Research programme: Rethinking the Rule of Law in an Era of Globalisation, Privatisation, and Multiculturalisation Promotor: Prof. F. Amtenbrink

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Yun Ma A Comparative Legal Analysis of National Parks and Other Protected Areas between USA and China: Balancing Use and Preservation in a Dynamic Era

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National parks and other types of protected areas have served as predominant conservation tools in many countries around the world. They have contributed significantly to the protection of the environment and biodiversity at both national and global levels. However, as areas of nature have gradually come to be popular tourist destinations, laboratories for scientific research, and revenue generators for local economies, the tension between the use and preservation of nature has increasingly intensified.

balance them in this context becomes more intricate. Questions to be answered in the legal regime include the mission statement, the confirmation of overarching value, the type and scale of allowed uses, the hierarchy of designated uses, and the like. Answers vary significantly from one type of protected area to another, and also differ tremendously from one country to another. This is not only due to managerial necessities but also to the fact that nature is a social, cultural, and political product rather than a mere material entity.

Dynamics of this tension are reflected in the diversification of the types of utilisation of natural landscapes and resources, the diversification of stakeholders and interests, the elusive political commitments and compromises, the imposition of affirmative obligations, and the endorsement of substantive management criteria regarding competent administrative agencies, and so on. These dynamics belie the notion that the traditional shaping of two extremes between use and preservation, or more specifically, between multiple-use and exclusive-use, can fully illustrate and characterise the nature conservation regime. Use and preservation are increasingly intertwined, and provision of a middle ground in the legal regime to

For this thesis, I have chosen the United States and China as two examples for comparative studies. I will examine how the middle grounds are shaped and transformed in the two legal regimes, what the differences are, and the reasoning behind such differences.

[email protected] Constitutional and Administrative Law Rethinking the Rule of Law in an Era of Globalisation, Privatisation, and Multiculturalisation Prof. R. de Lange and Prof. Y. Li

In 2011, Yun Ma obtained her Master in Constitutional and Administrative Law cum laude at China University of Political Science and Law in Beijing, China. In September 2011, she started working as a PhD student in the Department of Constitutional and Administrative Law at Erasmus School of Law under the co-supervision of Professors Roel de Lange and Yuwen Li.

Daria Ratsiborinskaya Export of European Environmental Standards via Direct Investment Projects: Towards Legal Environmental Indicators The research focuses on the impact of European environmental law outside the EU. Contrary to the existing practice involving democratic and human rights standards, there is currently no consistent inclusion of European environmental protection standards in EU agreements with third countries. Against this background, the EU has been criticised for its approach to environmental standards in its external relations, in particularly in the area of EU-funded direct-investment projects. In the absence of a comprehensive EU investment policy, the export of EU environmental standards to third countries takes place on a voluntary basis by way of, inter alia, Europe-based international financial institutions. This raises the question of consistency in the standards’ application, as well as of investors’ environmental accountability. The research contributes to filling this lacuna by constructing a tool that would indicate the presence of major European legal environmental standards in European investment projects abroad, termed legal environmental indicators. In developing such indicators, the project contributes primarily to allowing for a legal evaluation of adherence to EU environmental standards in the area of FDI projects in countries outside the EU. The source of inspiration for such indicators

are the existing legal indicators on insolvency, launched by the EBRD in 2004, legal indicators on corporate governance, elaborated by the EBRD a year later, and competition law and policy indicators, constructed by the OECD in 2007. The new indicators will be put to the test in a case study on Russian-based investment projects. The project is financed by the NWO Mosaic programme. Daria Ratsiborinskaya is a PhD researcher and lecturer at Erasmus School of law. She received an LL.M. in European Law from MGIMO-University of Moscow and from the University of Amsterdam. Daria has had broad international work experience, including an internship at the European Commission, work for EU projects abroad, and evaluation expertise under the EU Commission Research and Innovation Programme (FP7). She was an invited lecturer at Chisinau University (2012), at Leuven Catholic University (2008, 2009), and at the European Studies Foundation in Lodz (2006). Daria writes and lectures in the field of European environmental law, environment and investment regulation, corporate environmental responsibility, accountability, and climate change. Website: http://eur.academia.edu/DariaRatsiborinskaya

E-mail: [email protected] Department: International and European Law Research programme: Rethinking the Rule of Law in an Era of Globalisation, Privatisation, and Multiculturalisation Promotors: Prof. F. Amtenbrink and Dr. W.Th. Douma (T.M.C. Asser Institute)

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Thomas Riesthuis The Concept of Law in a Globalised Legal Order: The Promise of Pragmatism

As a result of the increasing importance of international law, domestic law is greatly affected by international legal spheres. This development presents us with three problems. Firstly, law in the twenty-first century is no longer a coherent and stable system of norms. Overlapping legal orders interact with each other, resulting in conflict and contestation. Secondly, states now share legal authority with international courts, tribunals, and other regulatory bodies. Thirdly, soft law and self-regulation are of shared importance to national and international legal orders. These issues force legal philosophers to rethink the foundations of legal orders. However, legal philosophers have a hard time explaining the rise of international law within the existing traditions of legal theory. Legal positivists are unable to clarify how domestic and international legal systems inter-act, and interpretivists have difficulty explaining the authority of international courts and tribunals. Both schools cannot account adequately for the growing importance of soft law. An underdeveloped school in legal theory – legal pragmatism – offers more potential for grasping the problems resulting in the increased importance of international law. By drawing on the work of Philip Selznick, a comprehensive account of the concept of

Email: [email protected] Department: Jurisprudence Research programme: Rethinking the Rule of Law in an Era of Globalisation, Privatisation, and Multiculturalisation Promotor: Prof. H.S. Taekema

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law from this perspective will be constructed. The research project aims at assessing the explanatory power of the aforementioned three schools in the light of this legal pluralism at the global level. The research is twofold, and consists of both a theoretical and a legal doctrinal component. In the theoretical part, it will be investigated whether the three theoretical schools can deal adequately with the problems of legal pluralism. In the legal doctrinal part, the three problems are examined in the context of the European Convention on Human Rights. The case study assesses which theoretical account of law gives a more comprehensive explanation of legal practice. Thomas Riesthuis (1989) studied law and philosophy at Erasmus University Rotterdam. He holds an LL.M. degree in constitutional and administrative law, and a M.A. degree in philosophy of law. During his studies, he worked as a student assistant in the department of jurisprudence. In 2013, he started as a PhD candidate. His research interests lie in the fields of social theory, jurisprudence, and legal methodology, especially issues surrounding the nature of legal scholarship and the role of law in the context of globalisation.

Khaibar Sarghandoy Taking Free Speech Seriously: Toward a Rights-Based and Principled Free Speech Theory

Freedom of speech is widely accepted and acclaimed as a core principle of liberal and democratic societies. However, there is less agreement concerning the normative foundations and underlying values of this right. Do we value free speech exclusively or dominantly because we hope that it will improve the democratic process? Or is our commitment to free speech derived from our belief that it will help nurture and flourish the self-development and autonomy of the individual citizen? Yet another possibility is that free speech is considered an important right because it helps us reach, or come closer to, political truth and desirable policy outcomes. These are all instrumental justifications for free speech: that is, they are not based on any intrinsic or moral commitment to free speech, but on the expectation that the protection of free speech will lead to desirable effects for the society as a whole. In this dissertation, I will explore these justifications and compare them with another type of justification for free speech − the one that treats this right as valuable on largely non-instrumental grounds. In this second view, free speech is regarded as an essential feature of a society in which

citizens are treated as responsible moral agents, capable of forming their own opinions and expressing them to others. The two types of justifications are not mutually exclusive, but complement each other. However, I will suggest that a profound understanding of and commitment to the second type of justification provides the most strong and principled protection of free speech. This hypothesis is based on the assumption that this type of protection will be of particular importance for dissenting and unpopular speech that deviates from the widely held views in a society. Moreover, the non-instrumental justification of free speech will provide us with the necessary tools to understand the most challenging controversies and tensions surrounding this right. Once free speech is understood as an intrinsic right, it will become easier to settle these controversies in a fair and satisfactory way. Khaibar obtained an LL.M. degree from the Faculty of Law, Leiden University (cum laude) in 2009. In 2010, he started working on his PhD research in the Department of Legal Theory, Erasmus School of Law. His research focuses on the problem of free speech in the context of a multicultural and multireligious society.

E-mail: [email protected] Department: Legal Theory Research programme: Rethinking the Rule of Law in an Era of Globalisation, Privatisation, and Multiculturalisation Promotors: Prof. W. van der Burg and Dr. E.M. Galenkamp

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Anna Sting Functionality of Parliaments in Economic Crisis: Towards Purposeful Parliamentary Involvement in Economic Decision-Making in the EU Anna is researching the extent of involvement of parliaments in economic decision-making in the European Union before and after the financial and debt crisis. The recent crisis-­induced reforms to the system of macroeconomic governance in the EU have considerably changed its economic constitution. While the ‘pre-crisis’ system of economic coordination already excluded parliaments to a great extent, the new system can be seen to encroach even upon basic parliamentary rights, especially with regard to national budgetary autonomy. However, ever since the inception of the Economic and Monetary Union, more parliamentary involvement has been advocated to increase the democratic legitimacy of economic decision-making, most recently by the report on Genuine Economic and Monetary Union by Herman van Rompoy, and by a direct reference to parliaments in Article 13 of the Fiscal Compact. The question arises as to how to ensure a considerable degree of parliamentary involvement, which is never made explicit in these documents. This is where Anna’s research aims to fill the gap for lawmakers and policymakers. The research posits that traditional notions of parliamentary democracy within the context of a State are not appropriate, as economic

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[email protected] International and European Law Rethinking the Rule of Law in an Era of Globalisation, Privatisation, and Multiculturalisation Prof. F. Amtenbrink

governance in the European Union takes place on three different levels: national, European, and international. Against the theoretical background of parliamentarism, therefore, the research introduces a new notion − that of ‘functionality’ of parliaments. Functionality is ‘the quality of being suited to serve a purpose well.1 Six main purposes of parliaments are distilled2: lawmaking, scrutiny, accountability, representation, debate, and mediation. The extent to which these functions are and should be fulfilled by parliaments in the field of economic decision-making of the EU will be analysed during the research project, using doctrinal and comparative law research with empirical elements. Anna Sting (1988) holds an LL.B. in European Laws from Maastricht University, and an LL.M. in International and European Public Law (cum laude) from Erasmus University Rotterdam. During her studies, she was student fellow at the Montesquieu Institute Maastricht and followed the Honours Master Class: Research Lab, at ESL. Since September 2012, she has been a PhD researcher in the Department of International and European Law, where she researches the role of parliaments in economic and anti-crisis decision-making in the European Union. Other research interests include comparative public law, European public law, economic governance, financial crisis, and European Studies. 1 Oxford Dictionary, Definition of ‘functionality’, available at: http://oxforddictionaries.com/definition/ english/functionality, last visited 18 April 2013. 2 Beetham, D. (2006), Parliament and Democracy in the 21st Century: A Guide to Good Practice, Interparliamentary Union, Geneva, p. 22ff.

Guido Terpstra Reconstructing the Equality Principle in a Plural and Multicultural Society

Certain conflicts are inherent to a modern diverse and ‘multicultural’ society. Customs, attitudes, and beliefs that differ will lead occasionally to contradicting demands. It is remarkable that in legal conflicts, often both sides appeal to the equality- or nondiscrimination principle. It seems that the current principles of equality and nondiscrimination in the Netherlands are being interpreted in different ways simultaneously. A closer analysis of the equality principle shows that on a philosophical level, equality is an essentially contested concept.

This PhD research is part of the NWO research project of Prof. Wibren van der Burg and Dr. Marlies Galenkamp: ‘Reconstructing Political Philosophy and Legal Doctrine: Doing Justice to Dynamics and Hybrid Identifications’. Guido Terpstra graduated in constitutional and administrative law and legal philosophy at Leiden University. Afterwards, he worked for some time in the European Law Department at Leiden University.

A first goal of my research is to identify and analyse all current interpretations and the underlying meanings of the principles of equality and non-discrimination. My premise here is that once the judge identifies the various values and interest that are hidden by the use of the equality principle, multicultural conflicts will be resolved in a more satisfactory and adequate manner. However, it is important that judges have sufficient leeway to work in such a manner. Therefore, the tendency in the Netherlands and the EU to formulate equality law in precise all-or-nothing rules over the past few decades will be scrutinised. At the same time, the importance of preserving the favourable achievements of equality law will be demonstrated.

E-mail: [email protected] Department: Jurisprudence Research programme: Rethinking the Rule of Law in an Era of Globalisation, Privatisation, and Multiculturalisation Promotors: Prof. W. van der Burg and Dr. E.M. Galenkamp

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Research programme: Lex Mercatoria: Globalising Business Law in the 21st Century

Bart Bootsma Financial Incentives for Shareholders: A Corporate Law and Economics and Corporate Constitutional Perspective The short-term focus on the part of shareholders is a root cause of the current financial crisis. A subsequent key question concerns how companies can ensure that their behaviour and policy have a longterm direction. Commitment on the part of institutional investors, as long-term shareholders, can be stimulated, however, and offering certain financial privileges, such as loyalty dividend, loyalty warrants, and voting dividend, to stable shareholders has been proposed. This research investigates the economic desirability and the legal possibility of these financial incentives. To analyse such incentives, an innovative theoretical framework (corporate constitutionalism) that complements the law and economics framework is used.

Bart participated in the Honours Master Class: Research Lab 2010. His research proposal was awarded a four-year grant in the NWO Open Competition for the Social Sciences. In 2011 and 2012, Bart worked twice for half a year on a research project for the Dutch Monitoring Committee Corporate Governance Code. He has (co-)authored several papers in Dutch journals. His research interests are in corporate law and corporate governance.

Bart holds an MSc degree in Economics and Business (2009) and an LL.M. degree in Commercial Law (2010, cum laude) from Erasmus University Rotterdam. His master’s thesis, the topic of which was equal treatment of shareholders, won two prizes and has been published as a book.

E-mail: [email protected] Department: Commercial and Corporate Law Research programme: Lex Mercatoria: Globalising Business Law in the 21st Century Promotors: Prof. H.M. Vletter-van Dort and Prof. M.G. Faure

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Armand Kersten Corporate Governance: A totum pro parte for Compliance?

The figure of speech that corporate governance is a totum pro parte for compliance expresses the notion that compliance is in the category of corporate governance. In my view, Dutch law is not pertinent as regards compliance relating to corporate governance. It is not clear from the law that compliance is a subcategory of corporate governance. I have chosen to focus on banks, as the materialisation of a threat to the banking system as a whole will likely be far more costly to society as a whole than the downfall of a major consumer-orientated non-financial business. The failure of the law to shed clarity on compliance pertaining to corporate governance leads to banks not readily making such a connection. This, in my view, exposes them or certain of their organs to responsibility and liability as a matter of company law. My research started from a premise that in business economics it is common ground that compliance is a subcategory of corporate governance. Business economics literature yields limited references to compliance, and there is a natural tendency to assimilate compliance to risk. This has led me to look at risk management, and to address sources of guidance on risk management and control systems, culminating in a

Email: [email protected] Department: Business Economics Research programme: Lex Mercatoria: Globalising Business Law in the 21st Century Promotors: Prof. P.A.M. Diekman and Prof. H.M. Vletter-van Dort

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brief description of the COSO enterprise risk management framework. The aim of my research is to make an inventory of such subjects capable of being classified as falling under compliance. It may therefore be asked from which sources do compliance obligations originate. An important sequel to this is the matter of sanctioning – measures taken in response to breaches of compliance obligations. I distinguish between external and internal sanctioning. External sanctioning refers to sanctions imposed outside the powers of the bank. An important perspective to sanctioning will be whether breaches of internal (‘self-imposed’) measures may cause external sanctioning. An example is whether the bank breaching its own compliance policies and procedures may be liable towards third parties for damages. Armand Kersten began his working life as an attorney-at-law with a predecessor of De Brauw Blackstone Westbroek. He subsequently joined ABN AMRO to work with the bank for just under 20 years. He held a wide variety of positions in ABN AMRO, ranging from legal counsel to commercial manager of a management services subsidiary. From 2000, Armand held positions regarding compliance. Until recently, Armand combined his research with consultancy on compliance with Ernst & Young.

Randolf van Lambalgen Banks and State Aid Control: An Equal Treatment Perspective

The European Commission has taken many decisions in which it assesses state aid measures to banks. It is important that the Commission decisions are perceived as ‘fair’ or ‘just’ by the banks concerned. This underlines the importance of the principle of equal treatment, which will be the perspective taken in this research. The aim of this study is to identify a set of criteria that can be used to differentiate between banks. I aim to determine which criteria are conceivable, which have been used by the Commission, and which are justified/desirable from a legal and economic perspective.

In October 2012, Randolf started his PhD at Erasmus University Rotterdam, where he had studied previously for six years. From 2004-2010, Randolf participated in the ‘mr. drs.-programma’, which means that he has completed two studies: Economics (MSc) and Dutch Law (LL.M.). After graduating, he became ‘quatrième référendaire’ (i.e. legal assistant) at the European Court of Justice. He worked for the Dutch judge (Marc van der Woude) at the General Court. After two fulfilling years, Randolf left Luxembourg and returned to the Netherlands to begin his PhD.

E-mail: [email protected] Department: Commercial and Corporate Law Research programme: Lex Mercatoria: Globalising Business Law in the 21st Century Promotor: Prof. H.M. Vletter-van Dort

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Susan Niessen The Legal Position of Terminal Operators in Hinterland Networks

This PhD research is about the legal implications that arise when a terminal operator carries goods to inland destinations. Terminal Operators are logistic service providers who perform a wide range of services. Traditionally, their focus is on performing services at a terminal, such as loading and discharging vessels or other vehicles, stowing goods on vessels, storing goods in terminals, and performing customs-related operations. However, recent developments show that some terminal operators are shifting their focus and becoming involved in the transportation of goods beyond their terminal limits. As well as providing services at a terminal, these ‘modern’ terminal operators carry goods by different means of transport to inland terminals. They use their excellent position in the supply chain to bundle cargo and to make use of more environmentally friendly modes of transport, such as inland waterways and railways. The performance of carriage, however, changes fundamentally the terminal operator’s legal position. This is because, as opposed to services at a terminal, the carriage of goods is regulated at a national and an international level by mandatorily applicable instruments. Thus, a ‘modern’ terminal operator is confronted with a mandatory liability regime, which is completely different from the default

Email: [email protected] Department: Commercial and Corporate Law Research programme: Lex Mercatoria: Globalising Business Law in the 21st Century Promotor: Prof. F.G.M. Smeele

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rules that apply to the performance of services at a terminal. This also means that the terminal operator’s contract for the performance of these various services is subject to different sets of default or mandatory rules, depending on the services performed. How to approach these ‘mixed’ contracts is one of the problems I hope to solve. Another main focus of attention is the terminal operator’s legal position regarding third parties, such as cargo owners or ship owners who do not have a contractual relation with the terminal operator. The findings of this research will enable operators of transport terminals who are involved in the carriage of goods to explore the available options in order to deal with the legal risks and liabilities. Susan Niessen was born in 1986 in Venlo, the Netherlands. In August 2010, Susan completed a Master of Commercial Law at the Law School of Erasmus University Rotterdam. In September 2010, she became junior research fellow in the Department of Commercial Law, where she is working on her PhD thesis under the supervision of Prof. Frank Smeele. The topic of her PhD research is the legal position of terminal operators in hinterland networks. She also participates in teaching the Bachelor course in Commercial Law.

Piotr Wilinski Testing the arbitral Tribunal’s Mandate in International Commercial Arbitration. When Does the Tribunal Transgress its Authority? The arbitral tribunal’s mandate to resolve a dispute between parties comes with the obligation not to exceed the authority. Consequently, if the power is abused, parties will have a legitimate right of recourse to the court against the arbitral award. At the enforcement stage, Article V(1)(c) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards will be the starting point for a recourse against a tribunal’s actions in excess of its mandate. Pursuant to said proviso, the tribunal shall not decide on ‘differences not contemplated by or not falling within the terms of the submission to arbitration’, and shall not decide on ‘matters beyond the scope of the submission to arbitration’. Unfortunately, limitations as offered in Article V(1)(c) are elusive because of the unclear language. Additionally, when the challenge against the award is brought in the setting-aside procedures, the national concepts of the arbitral mandate are relevant. They differ, however, and - as such - do not provide necessary clarification to understand the notion of the mandate in international commercial arbitration. For example, Germany follows the wording of the New York Convention, whereas the interpretation of the abuse of mandate in the US is expanded to the manifest disregard

of law. French and English models also need to be properly addressed. In turn, I intend to answer the question as to when does the tribunal exceed its mandate in the light of Article V(1)(c) of the New York Convention and of corresponding national legal provisions. The analysis will be based on doctrinal legal research. In the first phase, emphasis will be placed on the New York Convention. In the second phase, a test of the abuse of power as entertained in national regimes will be the focal point. Finally, the New York Convention and the national approaches will be addressed. Piotr obtained his first master’s degree in Law from the University of Wroclaw in 2010. In the same year, he continued his studies within the Commercial Law LL.M. programme at Erasmus University, and graduated in 2011. Before starting his PhD in the Department of Private International and Comparative Law in 2012, he was working in arbitration departments of major law firms both in Poland and in the Netherlands.

E-mail: [email protected] Department: Private International Law and Comparative law Research programme: Lex Mercatoria: Globalising Business Law in the 21st Century Promotor: Prof. F.J.M. De Ly

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Wen Xin The Role of Law in Stimulating Foreign Investment in China

Attracting foreign investment is one of the fundamental polices regarding the ‘openingup and economic reforms’ adopted in 1979 in China. In the last three decades, it has become one of the successful components of the Chinese model of economic development. It is unprecedented for China that enormous foreign investment has flowed in within such a short period of time, and the country has become the largest recipient of foreign investment. More than thirty years have passed since the first foreign investment law − the Sino-foreign Equity Joint Venture Law − was promulgated in 1979, and numerous laws and regulations have resulted in a complex legal framework concerning foreign investment in China. However, China is known for its lack of rule of law. Conventional literature on what drives foreign investment normally ignores the legal institutions, and looks only at economic factors behind foreign investment decisions.

Email: [email protected] Department: Commercial and Corporate Law Research programme: Lex Mercatoria: Globalising Business Law in the 21st Century Promotors: Prof. Y. Li and Prof. M.J. Kroeze

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While China’s success in attracting foreign investment is undisputed, the extent of the role law has played in such success is unclear. Moreover, there are few empirical studies demonstrating an interrelationship between foreign investment activities in China and the governing domestic and international laws. My thesis will focus on what role legislation plays in attracting foreign investment, how foreign investors view the law in terms of their business, and whether the reality of lacking the rule of law has a negative impact on foreign investors, and if so, to what extent. These questions are intended to be critically studied. Such a study may contribute to the studies of foreign investment law and development. After obtaining the master’s degree in the School of law, Central University of Finance and Economics, China, Wen started a PhD research at Erasmus University Rotterdam in September 2011.

Research programme: Monitoring, Safety and Security

Aubrich Bakhuis Curaçao and Sint Maarten: Under intensified supervision of the Kingdom of the Netherlands

As of 10 October 2010, the Dutch Kingdom consists of four countries, on both sides of the Atlantic Ocean: the Netherlands on the European continent, and Aruba, Curaçao, and Sint Maarten in the Caribbean. This new chapter in the evolution of the Dutch Kingdom is the largest political and legislative reform since the formal ending of the colonisation of the overseas territories in 1954. Since the entire legislative process took only five years, a large ‘package deal’ had to be made in order to obtain the consent needed to make the reforms possible. The relationship between the partners within the Dutch Kingdom might be compared to a family or household. Although the former colonies have become more self-governing throughout the years, safeguards of ‘parental’ supervision by the Kingdom still exist. In order to have the state debt remitted, and to make a financially ‘healthy’ start, Curaçao and Sint Maarten had to agree to an extension of the administrative and supervision powers of the Dutch Kingdom. The limitation on the autonomous legislative and executive powers implies that within the same Kingdom – which is established on the principle of equivalence,

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[email protected] Constitutional and Administrative Law Monitoring, Safety and Security Prof. L.J.J. Rogier

not equality – different standards on autonomy exist. While the Netherlands’ government finds the provisions on supervision necessary, some political groups and institutions in Curaçao and Sint Maarten consider the supervision regime to be a form of neo-colonialism. The tension between the perception of equivalence in autonomy and the further extended supervision powers has led to the following central research question: How do the Charter’s principles of autonomy and self-governance relate to the extension of the administrative and financial supervision powers of the Dutch Kingdom? This research focuses on the legal aspects of the administrative and financial supervision powers of the Kingdom government on Curaçao and Sint Maarten, especially in relation to their rights of self-governance. After high school, Aubrich joined the Royal Dutch Marine Corps, where he served for four years. In 2006, he started the Bachelor Dutch Law at Erasmus School of Law. In 2010, he finished a master’s degree in ‘Rechtsgeleerdheid’ with a specialisation in constitutional and administrative law. In 2011, he started his PhD project, which he intends to complete in March 2015.

Abdessamad Bouabid Mods & Mocros: Strategies Used by Moroccan Youth in the Netherlands and Belgium to Cope with their Representation in the Media Through a qualitative analysis of Dutch and Belgian media discourse, this research project entails an inquiry into the media discourse on Moroccan Dutch and Belgian male adolescents. It also involves an inquiry into the effects this labelling has on the daily lives of Moroccan male adolescents in terms of coping strategies, such as resistance, isolation, disintegration, radicalisation or adaptation, and inspiration and motivation. The study will be conducted by means of face-to-face interviews, focus- group interviews, and participant observations of social gatherings. This research arises from an academic curiousity about the positive or negative effects of discourse on social deviants, and focuses on moral panic − societal overreaction − as the facilitator of these effects. It will provide further elaboration on and a deeper understanding of the theoretical concepts of denial (societal under-reaction, taboo, political correctness) and cultural trauma (societal appropriate reaction) − which currently lack

scrutiny and explicit conceptualisation − and their stance towards each other. The societal relevance of the research lies in new insights into several societal phenomena, based on combining theoretical and empirical knowledge. The study will deliver new and relevant insights from within Moroccan communities, which can help policy makers and street-level bureaucrats in understanding and dealing with a wide variety of social problems facing Moroccan youths. Abdessamad studied Criminology at ESL from 2006 to 2010. After completing this Bachelor and Master study, he worked at the COT Institute for Safety, Security, and Crisis Management as a researcher-advisor. During his work there, he wrote a research proposal together with Professors René van Swaaningen and Richard Staring, for which he was granted the NWO Mosaic grant in November 2011. Since then, 80% of his time has been dedicated to this PhD thesis, and 20% to teaching courses to Criminology students.

Email: [email protected] Department: Criminology Research programme: Monitoring, Safety and Security Promotor: Prof. R. van Swaaningen

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Jing W. Hiah Employment or Modern Slavery: Different Perspectives on Informal Labour Relations in Chinese Niches, and the Impact of Human Trafficking policies on Chinese Entrepreneurship in the Netherlands and Romania In June 2006, the Dutch Social Intelligence and Investigation Service (SIOD) encountered eight Chinese illegal aliens during an inspection of a Chinese restaurant in Eindhoven. The Chinese workers were deported, and the Dutch Supreme Court convicted the restaurant owner of human trafficking, arguing that the employer was well aware of the illegal status of the Chinese workers and subsequently their vulnerable position. The court stated that − compared with Dutch norms − the labour conditions in which these illegal workers were found should be defined as exploitative. However, neither the employers nor the illegal workers perceived themselves to be either perpetrators or victims. This example elicits questions as to how these informal labour relations and labour conditions are perceived by the different actors (employers, employees, and governmental representatives), how these different perspectives can be explained, and what the consequences are. This incident also raises questions on the impact of human trafficking policies on labour relations and labour conditions in specific ethnic niches. This project aims to describe and explain these different perspectives on labour relations

in Chinese niches in the Netherlands and Romania, through multi-sited ethnography and a critical discourse analysis, confronting the emic perspective of Chinese employers and employees with the legal context of modern slavery in the Netherlands and Romania. Theoretical concepts central in this project are moral economy (Scott 1976), reciprocity (Sahlins 1974), social capital (Bourdieu, 1986), guanxi (Smart 1993), and theory of defiance (Sherman 1993). Jing Hiah MSc. BA. (Penang, 1986) studied Criminology (EUR) and Literary studies (UvA). In 2011, the Dutch association for Criminology (NVC) awarded her the best master’s thesis prize in Criminology for her thesis ‘Door de ogen van de Baas: Chinese employers and (illegal) employees on illegal labour and exploitation’. Between 2012 and 2013, she worked as a junior researcher and lecturer in the Department of Criminology. Her PhD project, a continuation of her master’s thesis, entails comparative research into the meaning of labour relations − often labelled by outsiders as ‘modern slavery’ − within Chinese communities in the Netherlands and Romania, and the associated implications of immigration and human-trafficking policies.

Email: [email protected] Department: Criminology Research programme: Monitoring, Safety and Security Promotors: Prof. R.H.J.M. Staring and Prof. R. van Swaaningen

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Eelco M. Moerman The Government and Citizens in Criminal Investigations: A Joint Effort?

In this research, a combined legal and psychological perspective will be taken to investigate the changing role of citizens in criminal investigations. The general public is increasingly called upon by the government to do its fair share in criminal investigations. This shifting role of citizens is reflected by television programmes and by Internet web pages that request information on criminal cases. The question arises as to whether the Criminal Procedure Act has kept pace with this development, or whether this development has placed citizens’ investigations in a legal limbo. From a legal perspective, it is unclear to what extent the responsibility of criminal investigation can be allotted to citizens, since the Criminal Procedure Act labels criminal investigations as an exclusive government task. It follows from this that the government should endorse the role of citizens with restraint. This research links the responsibilities of the government with the role of citizens in criminal investigations. A crucial responsibility of the government in criminal law is ensuring quality of investigations, and this responsibility has consequences for the relationship between the government and citizens. For instance, a criminal investigation is surrounded with many safeguards to ensure a reliable and sound investigation. At the same time, citizens are increasingly activated by the government to contribute to criminal investigations. Thus, it

Email: Department: Research programme: Promotor:

is expected that citizens be critically selected and closely monitored, since much relies on their statements. Surprisingly, this aspect has gained little interest over the years. In practice, reliability comes down to fact-checking and impressions, whilst objective tools are necessary to measure reliability. The famous Dutch ‘Passagezaak’, in which the star witness gave an unreliable impression, demonstrates that objective assessment tools are greatly needed. This research will provide such tools − for instance, by creating a questionnaire that measures the credibility of a potential contributor in criminal investigations. This study aims therefore to place the changing role of citizens’ investigations in a combined legal and psychological perspective. Eelco studied psychology (2010) and criminal law (2012, cum laude) at Erasmus University Rotterdam. During his studies, he worked both as a student-assistant in the Criminal Law department and as a clerk for the court in Rotterdam. In September 2012, he started a PhD research project on the role of citizens in criminal investigations.

[email protected] Criminal law Monitoring, Safety and Security Prof. F.W. Bleichrodt

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Wei Pei Comparative Research on the Criminal Procedural Agreements between England and Wales and China The criminal procedural agreement (CPA) is different from the state-dominated, paradigmatic sequence of investigationprosecution-trial-conviction-sentence of conventional criminal proceedings. CPA refers to situations in which the conviction or sentence of the suspect/defendant depends in part on the mutual-beneficial exchange between his cooperation and the corresponding judicial concession. According to the content of the cooperation, CPAs can generally be categorised into three types: plea agreement, assistance agreement, and restoration agreement. This research assesses the implications of these agreements for the function of the conventional criminal justice, analysing the reasons behind them, and examining the conditions for their adaptability in certain jurisdictions. Identifying the import of these agreements in legislation and in practice draws attention to the changing relationship between state and citizen as well as to changes in the nature of the crime and its sanction. Given two paradigms in solving crimes, this research focuses on the question of how to situate CPAs − the state-citizen collaboration model − into the conventional criminal justice system − the state-citizen confrontation model.

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[email protected] Criminal Law Monitoring, Safety and Security Prof. F.W. Bleichrodt and Prof. Y. Li

Methodologically, this research attempts to base its analysis on a comprehensive understanding of CPAs by examining legislation, judicial interpretations and decisions, and propaganda materials through comparing England and Wales, and China, two jurisdictions with unique legal traditions and judicial structures, but which in the meantime have generated similar negotiation technics in their criminal justice systems. The study also involves first-hand interviews conducted in both areas. Based on the findings, this research is expected to provide suggestions to Chinese policymakers and legislators on regulating CPAs and coordinating them with contemporary Chinese legal environment. Wei is a Chinese PhD candidate who started her research on criminal procedural agreements in September 2011 in the Criminal Law Department of the Erasmus Law School, Erasmus University Rotterdam. In June 2011, she obtained a master’s degree in Criminal Procedure Law at the China University of Political Science and Law (CUPL) in Beijing, and in June 2009, received a bachelor’s degree in Law at the same university. Wei’s research interests mainly include criminal procedure law, penal theory, and comparative criminal law.

Qianyun Wang Towards Chinese Cyber-Criminal Law: A Comparative Approach

It is difficult to imagine that someone can programme a piece of malware for smartphones, and in a short time steal thousands of euros. Nevertheless, this happens in the real world. In China, on 19 November, 2010, the Chinese Police solved a case involving mobile malware. The actor had programmed malware that could infect mobile phones and consume the prepaid fee stored in the phone user’s mobile account. Over a 3-month period, this malware infected more than 11 million mobile phones, and consumed more than 1 million RMB. Was this a crime? No. Because according to Chinese Criminal Law, only the computer is protected by it, not the smartphones or other network terminals such as tablet PCs. This case mirrors only one predicament in current Chinese cyber-criminal law. The contradiction between the increasing number of cybercrimes and the lack of criminal law to address them is arousing societal concern. Technology provides people not only with many conveniences in their daily lives but also with opportunities to commit crimes. This research, therefore, intends to unveil underlying dilemmas in current Chinese cyber-criminal law, and to develop possible legal solutions. Chinese current cyber-criminal system is problematic. On the one hand, the dependence on judicial interpretation may violate the principle of legality. On the other hand, the ‘evolvement’ of cybercrimes

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following the development of information technology contradicts the outdated criminal law. Thus, this research will focus on how to use criminal law to regulate cybercrimes. By means of a comparative study on cyber legislation in other countries, not only will the possible solutions for China be explored but also the boundary of judicial interpretation. Qianyun Wang started her four years’ research as a PhD candidate at Erasmus School of Law from September 2012. Before coming to ESL, she studied for her bachelor’s degree at Southwest University of Political Science and Law (SWUPL) in China from 2006 to 2010. After four years studying law, she embarked on a three-year master’s degree at China University of Political Science and Law (CUPL), majoring in Criminal Law. Due to her outstanding performance, she managed her master’s degree in two years. Before her graduation, she took part in an internship programme sponsored by Google (China) for eight months, and undertook an internship in the Chinese Supreme People’s Court for four months.

[email protected] Criminal Law Monitoring, Safety and Security Prof. P.A.M. Mevis and Prof. Y. Li

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Credits Publisher:

Erasmus School of Law, 2013

Editorial team:

Bart Bootsma, Ryan Gauthier, Alina Ontanu, Ekaterina Pannebakker

Traffic:

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Wendy Pereboom, www.monologo.nu

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