Zoekresultaten

Dutch National Security Reform Under Review

In May 2018, the new Dutch Intelligence and Security Services Act 2017 (Wet op de Inlichtingen- en veiligheidsdiensten, Wiv) will enter into force. It replaces the previous 2002 Act and incorporates many reforms to the information gathering powers of the two intelligence and security services as well as to the accountability and oversight mechanisms. Due to the technologyneutral approach, both the civil and the military intelligence services are now authorized to, for example, intercept communications in bulk, hack third parties, decrypt files, store DNA or use any other future innovative technology. Also, the national security legislation extends the possibilities for the indiscriminate collection of data, and for the processing, storage and analysis thereof. The process leading to the law includes substantial criticism from the various stakeholders involved. Upon publication of this report, an official consultative referendum is being organized on the new act. The aim of this policy brief is to provide an international audience with a comprehensive overview of the most relevant aspects of the act and its context. In addition, there is considerable focus on the checks and balances as well as the bottlenecks of the Dutch intelligence gathering reform. The selection of topics is based on the core issues addressed during the parliamentary debate and on the authors’ insights.

The future of investment arbitration in the light of Opinion 1/17

Alternative dispute resolution (ADR) is constantly gaining ground, both at domestic and international level. New forms of dispute settlement with a mix of public and private components are emerging in fields where this was not the case until recent times, as some contributions to this Zoom-out have attempted to demonstrate. In the field of investment law we have witnessed a somehow opposite trend. Traditionally, disputes in this field have been settled by means of arbitral tribunals established mostly on the basis of bilateral or multilateral investment agreements (IAs) under a variety of arbitration facilities, which are collectively referred to as investor-to-State dispute settlement (ISDS). Traditional ISDS presents many characteristics of ADR, starting from the strong role that private parties play in it (for example when it comes to the appointment of arbitrators). The practice has shown that the system has clear advantages but also undeniable disadvantages. The prevailing opinion in recent years has been that the latter considerably outweigh the former, resulting in what has been termed the backlash against investment arbitration in a volume appeared a few years ago. In this contribution, how-ever, I will not dwell on the details of the crisis that has affected investment arbitration, nor will I engage in a discussion of whether that backlash is entirely justified. My focus will be much more modest. One of the most tangible consequences of this growing dissatisfaction towards investment arbitration is the launch on the part of the EU of a court-like system to settle investment disputes –the now famous investment court system (ICS) –as a replacement to old-fashioned ISDS. The ICS now features in all EU IAs, and has become the standard position of the EU when it comes to dispute settlement in this field. Recently, the ICS has also received the green light of the European Court of Justice (ECJ),raising doubts as to whether traditional ISDS has conclusively been sent to oblivion, at least in the EU. From a political and policy perspective, it is undoubtful that there is a strong stance on the part of the EU and of its Member States against traditional ISDS. This article, however, will focus exclusively on the legal dimension, by examining whether the ECJ’s decision should be read as meaning that investment arbitration is incompatible with the EU legal system. While itis clear that Opinion 1/17 means that the ICS is compatible with EU law, it remains to be seen whether the Court’s finding allows an a contrario reading. Namely, whether it entails the incompatibility with EU law of traditional ISDS. The analysis will start with a brief summary of the events and developments that preceded the creation of the ICS and eventually led to the current situation (Section 2), followed by an examination of the relevant parts of Opinion 1/17 (Section 3). This part will be followed by an appraisal of the possible legal implications of the decision (Section 4). Some conclusions will be offered in the closing section (Section 5) in the attempt to look beyond the boundaries of EU law. Part of topic "The blurring distinction between public and private in international dispute resolution"

Criminalization of market actor behavior as regulatory tool

Het onderzoek dat ten grondslag ligt aan dit artikel onderzoekt hoe de overheid markten reguleert voor (financiële) producten en diensten teneinde falen van de markt te voorkomen. Het behandelt specifiek EU Richtlijn 2014/57/EU betreffende strafrechtelijke sancties voor marktmisbruik en de implementatie daarvan in Nederland en opvolgend gebruik door het Openbaar Ministerie en Autoriteit Financiële Markten en hun Convenant ter voorkoming van ongeoorloofde samenloop van bestuurlijke en strafrechtelijke sancties. Het beantwoord de vraag of deze richtlijn de ontwikkeling van effectief reguleren van de financiële markt bevordert of remt. De slotsom ten aanzien van de implementatie van Richtlijn 2014/57/EU is – kort gezegd – dat “slechts” het aantal jaren gevangenisstraf voor handel met voorkennis en marktmisbruik van twee naar vier aangepast dient te worden. Het artikel concludeert tenslotte dat de huidige praktijk van het Convenant tussen OM en Autoriteit Financiële Markten kan blijven bestaan. De Autoriteit Financiële Markten kan haar inspanningen om haar toezicht verder in de geest van responsive regulation te verbeteren ongestoord door het OM voortzetten.

Regulation in Europe after the financial crisis: patterns of up-loading and down-loading of regulatory solutions

Indiscriminate Bulk Data Interception and Group Privacy

Human rights groups are increasingly calling for the protection of their right to privacy in relation to the bulk surveillance and interception of their personal communications. Some are advocating through strategic litigation. This advocacy tool is often chosen when there is weak political or public support for an issue. Nonetheless, as a strategy it remains a question if a lawsuit is strategic in the context of establishing accountability for indiscriminate bulk data interception. The chapter concludes that from a legal perspective the effect of the decision to litigate on the basis of the claim that a collective right to group privacy was violated has not (yet) resulted in significant change. Yet the case study, the British case of human rights groups versus the intelligence agencies, does seem to suggest that they have been able to create more public awareness about mass surveillance and interception programs and its side-effects

The role of constitutional courts in promoting healthcare equity

This paper explores whether constitutional litigation contributes to sustaining the equity element of the right to health. Equity entails a fair distribution of the burden of healthcare financing across the different socio-economic groups of the population. A shift towards uncontrolled private healthcare provision and financing raises equity challenges by disproportionately benefitting those who are able to afford such services. The extent to which equity is enforced is an indicator of the strength of the right to health. However, do domestic constitutional courts second-guess, based on equity, policy decisions that impact on healthcare financing? Is it the task of constitutional courts to scrutinize such policy decisions? Under what conditions are courts more likely to do so? The paper addresses these questions by focusing on the case of Hungary, where the right to health has been present in the Fundamental Law adopted in 2010 and the Constitutions preceding it. While the Hungarian Constitutional Court has been traditionally cautious to review policy decisions pertaining to healthcare financing, the system has been struggling with equity issues and successive government coalitions have had limited success in tackling these. The paper discusses the role of constitutional litigation in addressing such equity concerns. In doing so, it contributes to the discussion on the role of domestic constitutional courts in the protection of social and economic rights.