Wsifran Chise Blog - wsifranchise.info http://wsifranchise.info en j.d.maaskant@law.leidenuniv.nl Copyright 2017 2017-03-23T13:38:00+00:00 Revised General Banking Conditions: standard terms and conditions for Dutch banks - wsifranchise.info http://wsifranchise.info/articles/revised-general-banking-conditions-standard-terms-and-conditions-for-dutch http://wsifranchise.info/articles/revised-general-banking-conditions-standard-terms-and-conditions-for-dutch#When:13:38:00Z
With the General Banking Conditions 2017, the relationship between banks in the Netherlands and their customers has entered a new dimension. The new conditions are more consumer-friendly and there is more emphasis on a bank’s duty of care.
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As of 1 March 2017, all banks in the Netherlands use new standard terms and conditions in their relations with customers: the General Banking Conditions 2017 (Algemene Bankvoorwaarden 2017, the “GBC 2017”). The GBC 2017 address the customer directly, use plain language and simple words, and contain many examples of actual situations. The GBC 2017 reflect the stringent duty of care that banks are required to take into account when dealing with customers and are more consumer-friendly than the previous GBC.

All banks in the Netherlands use the same standard terms and conditions to document the overall relationship between the bank and its customer: the GBC (previously the GBC 2009). The GBC are general in the sense that all transactions between a bank and its customers are subject to the GBC. Moreover, they are applicable to consumer clients and business clients alike and they are used by all banks that are a member of the Netherlands Association of Banks (Nederlandse Vereniging van Banken, NVB), which are effectively all banks and all branches of foreign banks established in the Netherlands. Thus the GBC form the very foundation of the relationship between a bank and its customers.

Since 2009 there have been social, technical and legal developments that have made a revision necessary. Reference is made in this connection to the global financial crisis, internet banking, European legislation such as MiFID and the PSD2, and case law on the mis-selling of financial products. The GBC 2017 were drawn up in close consultation with consumer organisations and business sector organisations representing both large corporates and SMEs. Consequently, although a particular provision of the GBC 2017, such as the provision on the right of set-off, could still be challenged in court by an individual consumer or an individual SME on the ground that it is unreasonably onerous, the consumer organisations and the business sector organisations have forfeited this option. Whether the customer is bound by the GBC 2017 is dependent on whether the customer has explicitly or implicitly accepted the GBC 2017. It could also be that the customer has accepted a previous version of the GBC and has thus bound itself to future changes thereto. In practice, banks in the Netherlands are seldom prepared to disapply the GBC or certain provisions thereof.

Compared to the GBC 2009, the GBC 2017 have been simplified as much as possible, to ensure that a customer who lacks higher education is able to understand them. Furthermore, Article 1 of the GBC 2017 explicitly provides that a provision in the conditions for a specific product that is contrary to the GBC prevails over the GBC, but that that provision can never adversely affect the rights and protection granted to consumers under the GBC. Article 2 states that the bank has a duty of care towards the customer and shall take into account the customer’s interests to the best of its abilities. What is likewise new is that Article 2 also imposes a duty of care upon the customer. The customer must exercise due care towards the bank and take the bank’s interests into account to the best of its abilities. The customer may only use the services or products of the bank for their intended purpose and may not misuse them or cause them to be misused. Pursuant to Article 3 the customer is obliged to provide the bank with information about its activities and objectives and how it has acquired the funds, securities or other assets that it has deposited with or through the bank. Pursuant to Article 5, the bank is allowed to engage third parties and outsource activities. However, if it does so in the performance of an agreement with the customer, the bank remains the customer’s point of contact and contracting party. The above does not detract from the fact that the key provisions of the GBC 2009 have remained unchanged as a matter of substance. For example, the provisions dealing with the bank’s records, its right of pledge and set-off, the obligation of the customer to provide adequate security to the bank upon the bank’s request, the governing law, and the court having jurisdiction. These provisions have been redrafted in simpler wording, but their content has remained the same.

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Pim Rank 2017-03-23T13:38:00+00:00
Cable retransmission within reception area copyright free?! - wsifranchise.info http://wsifranchise.info/articles/cable-retransmission-within-reception-area-copyright-free http://wsifranchise.info/articles/cable-retransmission-within-reception-area-copyright-free#When:07:30:00Z
A recent decision by the Court of Justice of the EU might imply that cable operators no longer have to pay for cable retransmission within the reception area of the original broadcast because there is no ‘new public’.
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Is cable retransmission within the reception area of the original broadcast copyright free? In a ruling on March 16 2017 the Court of Justice of the EU seems to answer this question in the affirmative. If this is indeed the case, it constitutes a new ‘game changer’. It implies that there would no longer be a need to pay for the cable retransmission of national television programmes from for example the Dutch national public broadcaster NPO and the commercial broadcasters RTL and SBS.

According to the Court of Justice of the EU, there is no copyright-relevant ‘communication to the public’ in the case of ‘simultaneous, full and unaltered transmission of programmes broadcast by the national broadcasting corporation, by means of cables on national territory […] provided that it is merely a technical means of communication and was taken into account by the author of the work when the latter authorised the original communication’. In this case, according to the Court, there is no ‘new public’, and therefore no copyright-relevant communication which requires separate permission from the rightholders.

In the early 1980s, the Dutch Supreme Court (Hoge Raad) ruled that in the case of cable retransmission within the reception area, there is a ‘communication to the public’. The Dutch Supreme Court decided that a ‘new public’ was not required; the only thing that mattered was if there was another ‘organization’ involved, for example the operator of a central antenna installation. Later, the copyright status of cable retransmission was codified in a separate EU Directive.

In recent years the Court of Justice has introduced the ‘new public’ criterion again, but reframed the criterion and explained that in most cases there is a ‘new public’. In cases of cable retransmission or broadcastsin hotels, cafes, spas and rehabilitation centres, there is always a ‘new public’ that was ’not taken into account by the author of the work when the latter authorised the original communication’.

Internet retransmission of a TV signal within the reception area of the original broadcast was, according to the Court, relevant to copyright anyway because this was a different transmission technology. Whether or not a new public is reached would be irrelevant here.

But now suddenly the Court of Justice of the EU has found that people in Austria who just watch the public service channel via cable, have already been taken into account in the satellite and terrestrial broadcast, and therefore no permission or payment is required for this type of transmission. This is an understandable argument in itself, but it is certainly contrary to what has been assumed in the legislation and case law over the past twenty to thirty years. The ‘other technique’ of cable retransmission is apparently irrelevant.

The European Court of Justice decided in this case without the opinion of the Advocate-General in a small chamber, so maybe it is a slip. If not, this could be a real game changer in the area of audio-visual copyright.

CJEU 16 March 2017,  ECLI:EU:C:2017:218, (AKM/Zürs.net)
CJEU 7 March 2013, ECLI:EU:C:2013:147, (ITV/TVCatchup)
HR 30 October 1981, NJ 1982, 435 (CAI Amstelveen I)
HR 25 May 1984, NJ 1984, 697 (CAI Amstelveen II)

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Dirk Visser 2017-03-22T07:30:00+00:00
The State of Dutch Democracy: Dancing on the Deck of the Titanic? - wsifranchise.info http://wsifranchise.info/articles/the-state-of-dutch-democracy-dancing-on-the-deck-of-the-titanic http://wsifranchise.info/articles/the-state-of-dutch-democracy-dancing-on-the-deck-of-the-titanic#When:07:46:00Z
The state of Dutch democracy is uncertain. After last week’s elections, the stability of the political system appears guaranteed for the next couple of years. We cannot be sure, however, what will happen afterwards. This marks a change from the past.
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So Geert Wilders’ Freedom Party has not ended first in the Dutch parliamentary elections of 15 March 2017 after all. But does this mean that Dutch democracy is healthier than ever before, as political scientist Tom van der Meer put it in a German newspaper article on the morning of the elections? Given the relatively high turnout in this election, among other things, it may well seem that the answer to this question has to be in the affirmative. However, at least three concerns remain regarding the state of democracy in the Netherlands.

To begin with, although the Freedom Party did not finish first, it has now become the second largest party in the country. For this reason, the Dutch would be ill-advised to believe that they can put the topic of populism and its relationship to democracy to one side. On the contrary, as Jan-Werner Müller has argued in his book What is Populism? (2016), liberal democracies have quite a bit of homework to do. For example, if populism is characterised by antipluralism, what exactly do they believe that pluralism is good for, if anything?

Secondly, the dramatic loss of the Labour Party inevitably raises the question whether Dutch party democracy is grinding to a halt? Of course, scholars have already been pointing to the need to start thinking (again) about how to organize democracy without parties for quite some time. Although a simultaneous gain such as that by the GreenLeft party demonstrates that even now the political party may not be over yet, the other former system party of the Christian Democrats has booked its second worst result in modern political history as well.

Thirdly, to the extent that the historic loss of the Labour Party is the result of its having been the junior partner in a cabinet with Prime Minister Mark Rutte’s Liberals, the volatility of the electorate is once again a striking feature of the election outcome. Recently, this topic was even made a subject for consideration by the new State Commission on the Parliamentary System. What seems clear, is that this time the results could easily have been different, and that in the next election we may be in for new surprises.

As was already argued before the elections, the ‘levelling’ of the party political landscape is perhaps the most notable aspect of this particular election, in that the Liberal Party is the second smallest of the largest parties ever represented in the Dutch Lower House. On the one hand, this does not seem like a major change, since the Netherlands has always been a plural country. On the other hand, at least four parties are now needed to form a new majority cabinet, and voters could find themselves without a credible alternative in the next elections.

What this means, is that one does not have to be a pessimist to conclude that it is too early to tell whether democracy in the Netherlands is indeed healthier than ever, or that the Dutch are merely dancing on the deck of the Titanic.

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Hans-Martien ten Napel 2017-03-21T07:46:00+00:00
Jurisdiction in the Moon Village - wsifranchise.info http://wsifranchise.info/articles/jurisdiction-in-the-moon-village http://wsifranchise.info/articles/jurisdiction-in-the-moon-village#When:13:28:00Z
The Moon Village is a trendsetting project involving multiple uses by multiple users. The industry has no way of knowing whose governance they might be swept off to. So it is necessary to clarify rules on jurisdiction allocation in this community.
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Before stepping one foot out of Earth’s door, the space industry still has no way of knowing whose governance they might be swept off to. Investors may exhibit reluctance due to fear of an ambiguous legal environment. Therefore, if rules can be clarified on the jurisdiction allocation in this multinational community, then industry investment will gravitate towards this venture. In this respect, the Intergovernmental Agreement, signed in 1998, on the International Space Station (ISS) could provide an example; it deals with jurisdiction among parties in Art 5.2 and Art 22. Now 20 years have passed and legal theories and jurisprudence have advanced greatly. The Moon village will give rise to much more complicated activities than ISS. Humans, robots, rovers, scientific activities, business, tourism and mining will all take place at one location.

Traditionally, jurisdiction is related to sovereignty and is primarily territorial, as we can see from the authoritative Lotus judgment mentioned below. However, on the Moon, no country can assert sovereignty. So we may have to develop a new appreciation of jurisdiction with regards to celestial bodies. The issue we face is either a ‘jurisdiction vacuum’, where no country exercises control, or a ‘jurisdiction conflict’, where more than one country exercises control. These two problems have existed on Earth for centuries, so we can gain knowledge by referring to those theories and precedents.

In practice, legislative/prescriptive jurisdiction and adjudicative jurisdiction often go hand in hand: when States adopt legislation with extra-territorial applicability, they generally allow their domestic courts to adjudicate on claims based on that legislation.

The vintage international law case, ‘Lotus’ (1927), placed emphasis on territoriality due to sovereignty concerns, but it leaves open the issue of jurisdiction – ‘as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable’. It is not clear whether the Moon Village can qualify as ‘other cases’. We could argue that such a case of res communis omnium may demand different rules.

There are a range of rationales for establishing jurisdiction. Ratione Loci and Ratione Personae generally carry more weight. We are able to develop arguments to support each of them. This is how  potential tension arises between the Outer Space Treaty (OST) and the Cape Town Convention.

One interpretation of Article VIII OST is that only the State of Registry has jurisdiction of any kind over a space object and any judicial disputes about that space object. This could mean, the State of Registry has exclusive jurisdiction to regulate the space object, and exclusive jurisdiction to adjudicate disputes concerning that space object. If this approach is adopted, then Article VIII will sweep away all jurisdictional provisions in the Cape Town Convention and Protocol. 

A narrower interpretation is that Article VIII’s jurisdiction is non-exclusive, thus enabling other states to assert jurisdiction under proper sources of international law, treaty and/or customary international law. This is a literal interpretation.

Another narrow interpretation, by referring to the context, is that Article VIII only grants prescriptive jurisdiction. This is a contextual interpretation – “jurisdiction and control” as written in OST. So maybe there is no conflict? OST is for prescriptive jurisdiction, whereas Cape Town is for adjudicative jurisdiction.

In reality, in judicial practice, there have been two notable cases that adopted different tests. In Akpan v Shell, a Nigerian sued Shell NL and its subsidiary Shell Nigeria for environmental damages.  Shell Nigeria was incorporated as an independent legal entity in Nigeria, the damage occurred in Nigeria and the plaintiff is Nigerian. The difficult question is, with so many Nigerian elements isolated from the Netherlands, can a Dutch court assert jurisdiction? The Court clarified its decision by stating that it was foreseeable that a Dutch could have jurisdiction, given the connection between Shell Nigeria and its parent company in NL.

So we are left to think: what can we foresee with regard to the Moon village? The connection between Moon personnel/objects and the home country may vary from case to case. How strong will such a connection need to be to satisfy the ‘foreseeability’ test?

In contrast, the US Supreme Court used a different approach and rejected such jurisdiction in the case Kiobel v Shell. Again, this concerned a foreign plaintiff suing a foreign defendant for acts or omissions occurring completely outside the US. The Court held, ‘[E]ven where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.’ What “touch and concern” and “sufficient force” may be, is not clear. The Court further held, that in upholding extraterritorial jurisdiction, it depends on how much a court may interfere with its government’s foreign policy.

So it all seems to boil down to the same old cliché again: it all depends on the development of international relations. The same was said in the early PCIJ advisory opinion, Nationality Decrees in Tunisia and Morocco (1923), and was underpinned by the doctrine of domaine réservé.

My conclusion is that States may want to negotiate on the rules of jurisdiction in the Moon village to stay ahead of conflicts. Bargaining chips can include the level of control over personnel, space, the link with the home country etc. As Madame Haigneré said, ‘C’est un projet de civilisation. C’est le devenir de l’humanité.’ I too am confident that we can, and will, solve this in a civilized way.

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Laura Wanlu Zhang 2017-03-20T13:28:00+00:00
Arbitration Institute: Share a Piece of Cake? - wsifranchise.info http://wsifranchise.info/articles/arbitration-institute-share-a-piece-of-cake http://wsifranchise.info/articles/arbitration-institute-share-a-piece-of-cake#When:12:01:00Z
Recently several arbitration institutes released new Arbitration Rules, some expanding the scope of their administration to include investment disputes. The institutes wish to share a piece of the cake with ICSID, but they also face certain challenges.
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Between December 2016 and March 2017, several international arbitration institutes, based in both Asia and Europe, released their new Arbitration Rules. Some international arbitration institutes have expanded the scope of their administration on investment disputes in the new arbitration rules, such as the latest Shenzhen Court of International Arbitration (SCIA) rules which came into force on 1 December, 2016; the first edition of the Singapore International Arbitration Center (SIAC) Investment Arbitration Rules came into force on 1 January, 2017; meanwhile the new Stockholm Chamber of Commerce (SCC) Rules also entered into force. Recently, the International Chamber of Commerce (ICC) also launched its new international commercial arbitration rules which came into force on 1 March, 2017. It seems that the arbitral institutes may wish to share a pierce of the cake with the World Bank’s International Centre for the Settlement of Investment Disputes (ICSID), but there are also some challenges that the new rules may face. 

What is new?

SCIA Rules  The new rules allow SCIA to administer investor-state arbitration under the UNCITRAL Rules. Article 2.2 states that, the SCIA accepts arbitration cases related to investment disputes between states and nationals of other states. Article 3.4 states that, where the parties agree that dispute referred to under Article 2 of the Rules be governed by the UNCITRAL Rules, the SCIA shall administrate the case in accordance with the UNCITRAL Arbitration Rules and the SCIA Guidelines for the Administration of Arbitration Under UNCITRAL Arbitration Rules. The SCIA has become the first arbitration institution on mainland China to administer investor-state arbitration and this is also the first time the SCIA has revised its rules since its launch in 2012, in the wake of the so-called "CIETAC split”.

SIAC Rules  Compared to the SCIA’s administration under the UNCITRAL Rules, SIAC has become the first commercial arbitration institution to release a separate set of rules customised to international investment arbitration. The SIAC Investment Arbitration Rules highlight different perspectives of investment arbitration including emergency arbitration, third-party funding proceedings, submissions by non-parties, confidentiality and transparency.

SCC rules SCC is the second largest arbitration institute in the world for the administration of investment disputes, and the role of SCC in investment disputes includes acting as appointing authority under the UNCITRAL Arbitration. The new rules concern the interests of actors who are not parties to the arbitration, but who can bring an important perspective to the decision-making process of the tribunal. Therefore SCC has introduced Appendix III Investment Treaty Disputes which consists of  4 new provisions that supplement the Arbitration Rules and that apply to cases based on a treaty providing for arbitration of disputes between an investor and a state.

ICC Rules Being a leading dispute resolution provider, ICC plays an important role in international commercial arbitration. The 2017 Rules of ICC provide an introduction on expedited procedure and provide greater transparency to the arbitration process. Unlike the other rules above, the scope of the new ICC Rules does not extend to investment arbitration.

Challenges?

We see that several international arbitration institutes have expanded the scope of their administration on investment disputes in their new arbitration rules. Many challenges remain that the new rules may be confronted with which are discussed below.

Domestic law perspective   Compared to SIAC, the SCIA rules state that it may administer investor-state arbitration under UNCITRAL Rules. As the first arbitration institute in mainland China to have included investor-state rules, SCIA may try to make a reasonable and proper approach. Under the 1994 Arbitration Law, Article 2 states that Contractual disputes and other disputes over rights and interests in property between citizens, legal persons and other organizations that are equal subjects may be arbitration, while Article 3 states that marital, adoption, guardianship, support and succession and administration disputes may not be arbitrated. It could be said that investor-state disputes do not fit into either article. Article 72  further clarifies, foreign-related arbitration rules may be formulated by the China Chamber of International Commerce in accordance with this Law and the relevant provisions of the Civil Procedure Law. The new SCIA rules do not violate the 1994 Arbitration Law, while the 1994 Arbitration law does not clearly recognize the investor-state clause of the SCIA rules. In the interest of consistence between the domestic law and arbitration rules a further analysis is needed.

Enforcement   ICSID is the largest institute to administer investor-state arbitration cases and the ICSID Convention which was signed and ratified by most  countries offers the parties fully structured arbitration procedures, including enforcement. However, the SCIA and SIAC rules ,for example, lack a practical mechanism to enforce awards and may also take some time to persuade the parties to apply these new investment rules.

Share of the Cake?

We may wonder why many arbitration institutes have started to modify their rules. Do these institutions wish to share a piece of the cake with ICSID and accept investor-state arbitration cases? Are they indirectly raising their influence by modifying the rules? What will attract a claimant to file a request-, less cost or a more effective process?  SCC has modified its rules to be consistent with current developments and both SCIA and SIAC have taken their ‘first’ steps. How the SCC administers investment cases may provide some guidance to SCIA and SIAC. And more interestingly, ICSID has issued an invitation to submit suggestions for amendments to the rules and the secretariat has invited all those interested in the ICSID process to provide suggestions regarding potential amendments to the ICSID rules. Although ICC is still remaining silent on investor-state disputes, it is clear that many more arbitration institutions will start to want a share of the investor-state arbitration cake.

The author wishes to thank Ms. Weiwei Wu, CIETAC case manager for her review.

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Anran Zhang 2017-03-14T12:01:00+00:00
Something Fundamental is at Stake in the Dutch Parliamentary Elections - wsifranchise.info http://wsifranchise.info/articles/something-fundamental-is-at-stake-in-the-dutch-parliamentary-elections http://wsifranchise.info/articles/something-fundamental-is-at-stake-in-the-dutch-parliamentary-elections#When:13:24:00Z
Geert Wilders’ PVV Party believes that Islam is a totalitarian ideology and not a religion, and thus Muslims are not equally entitled to the same freedom of religion or belief as other believers. This view is incompatible with liberal democracy.
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Seldom has there been so much interest from the international media in the outcome of a parliamentary election in the Netherlands as in the election to be held on 15 March 2017. The explanation for this lies in last year's Brexit vote in Britain and the election of President Trump in the United States on the one hand, and the elections that will be held later this year in France and Germany on the other hand. The question this raises is whether voters in the Dutch elections, which take place in between these events, will follow the example of British and American voters and thus set the stage for a continuation of right-wing populist victories. It is to be expected that such an election result would put the EU under even greater pressure than is already the case because of the Brexit vote.

Although the media are therefore right to focus on the question of whether Geert Wilders’ Party for Freedom (PVV) will end up being the largest party, which despite its recent decline in the polls might still be the case, it is submitted that this matters - and perhaps even more so - from a different perspective as well. In a recent interview with German TV, Mr. Wilders indicated that his party believes that Islam is not comparable to other world religions such as Christianity or Judaism, but rather to totalitarian ideologies like Communism and Fascism. As a result, Muslims in his view are not entitled to the same constitutional and international protection of the right to freedom of religion or belief as other believers.

A similar discussion about the nature of Islam has been taking place in the United States since at least the publication of the report Shariah: The Threat to America by the Center for Security Policy in 2010. Recently, Sebastian Gorka, a deputy assistant to President Trump focusing on national security, left open for the second time whether the President believes Islam to be a religion: 'This isn't a theological seminary, this is the White House, and we're not going to get into theological debates'. That such a position can easily lead to religious discrimination is manifested not just in the United States, but also by the Freedom Party's (draft) election manifesto of 1 A4 which calls for a 'de-Islamification' of the Netherlands.

Without extending the protection of the right to freedom of religion or belief to all believers, it is difficult to conceive how the Netherlands could still pretend to be a liberal democracy. It is precisely for this reason, that at least one constitutional scholar in the 1930s already argued that a political party should respect everyone's geestelijke vrijheid [freedom of religion or belief] and equal protection before the law in order for it to be admitted to the democratic exchange of ideas. As a recent special issue of the Dutch legal magazine Nederlands Juristenblad on the elections, representation and the parliamentary system points out, several scholars are indeed warming up towards the idea of increased party regulation.

As I argue in this special issue, a good place to start would be for the Dutch Lower House not to let the Freedom Party oversee the coalition talks after the elections, as would be the custom in the event it receives the most votes. To be continued next week.

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Hans-Martien ten Napel 2017-03-13T13:24:00+00:00
Bathroom wars and the role of agency in gender identity - wsifranchise.info http://wsifranchise.info/articles/bathroom-wars-and-the-role-of-agency-in-gender-identity http://wsifranchise.info/articles/bathroom-wars-and-the-role-of-agency-in-gender-identity#When:08:50:00Z
Bathroom access has become the new battle ground for LGBT rights in America. In finding a resolution, judges and lawmakers should not overlook the role that agency can play in empowering children to express their gender identity.
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The war over bathroom access raged on in America last week when the Trump administration announced it would not support the right of students to use bathrooms corresponding with their gender identity in public schools. The three-page letter issued by the Department of Justice and the Department of Education rescinded a May 2016 guidance note from the Obama administration, in which transgender students were protected from discrimination on the basis of gender identity. The 2016 Obama guidance note had instructed education providers to interpret sex discrimination to include ‘discrimination based on a student’s gender identity,’ and had made it a condition for schools receiving Federal funds to ‘not treat a transgender student differently from the way it treats other students of the same gender identity.’ The Trump letter queried the legal basis for such an interpretation citing pending litigation, and instead deferred to local school districts and States to establish their own bathroom access policies.

Access to sex-segregated bathrooms has emerged as the new battleground for LGBT rights in America. Immediately following the Obama administration’s guidance note in May 2016, twelve States challenged its legality and an injunction was granted on 21 August 2016 by a Federal Court in Texas halting its implementation. Currently, twelve States have introduced draft legislation to restrict transgenders access to sex-segregated restrooms, locker rooms and other facilities by defining ‘gender’ as biological sex alone. The Supreme Court will hear a case on this issue later this month, involving a seventeen-year-old transgender student from Virginia, Gavin Grimm, who was barred from using the boys bathroom in his Gloucester County high school in the fall of 2014. Grimm sued the Gloucester County Education Board and is now asking the Supreme Court to decide whether he has the right to use bathrooms and locker rooms corresponding to his gender identity. Legally, the Court must determine whether the prohibition against ‘sex discrimination’ under Title IX of the Education Amendment (1972) Act should be interpreted to include discrimination on the basis of gender.  

Putting aside for a moment these legal battles, an important yet overlooked issue in this debate is the role that discrimination can play in undermining transgender children’s agency over their gender identity. Recognizing a child’s evolving capacity and agency is the cornerstone of children’s rights. It is codified under the UN Convention on the Rights of the Child in article 5 and article 14 and embedded in article 12. The UN Committee on the Rights of the Child has defined ‘evolving capacities as an enabling principle that addresses the process of maturation and learning through which children progressively acquire competencies, understanding and increasing levels of agency to take responsibility and exercise their rights.’ Though the United States of America remains the one country in the world not bound by the treaty provisions of the UN CRC, the principles of evolving capacity and agency are not without resonance in domestic law in America. According to leading US child rights scholar Barbara Bennett Woodhouse in Hidden in Plain Sight, the agency of children has long been recognized and acted upon in American history, and it continues to be acknowledged in jurisprudence and under some Federal and State laws.

The intersection between discrimination and agency, indeed the role that discrimination can play in undermining an adolescent’s right to exercise control over his or her own gender identity has not been fully explored or contemplated in the battle over bathroom access for transgender students in America. For a transgender adolescent, this is not just about using a bathroom, or even being protected from harassment and bullying at school (though these are obviously important concerns), it is about something more visceral: the right to exercise control over one’s very identity – to be who you want to be – and to have that identity recognized and supported by your community and peers. 

A law or policy that constrains an adolescent’s transgender identity or questions the veracity of such a gender identity is effectively saying to a transgender child that your right to be who you are is not acceptable, and thus not recognized or supported by your community and peers. For a transgender child, the act of asserting their gender identity is likely a decision fraught with emotion, requiring enormous courage and strength. For many adolescents, it is the first time they are coming to terms with their gender identity, while for others, it means standing up to family members and challenging values within their religion or community. A law or policy that does not recognize these challenges can have a devastating impact on a child – not only in respect of their emotional well-being but also in regards to their long-term development.

The suicide rate among transgender persons is nine times higher than in the general population of America. Almost two thirds (63%) of respondents in a recent national Transgender Study admitted to attempting suicide at least once in their lives prior to reaching 18 years of age (34% attempted suicide under the age of 13 years while 39% were between 14 and 17 years). Seventy-seven per cent of transgender students who attempted to openly express their gender identity in school reported being victims of abuse, violence or harassment: 54 per cent were subjected to verbal harassment; 52 per cent were actively prevented from expressing their gender identity; 24 per cent were physically attacked; and 17 per cent had to leave school as a result of the mistreatment they faced.

As the battle over bathroom access rages on in America, it is important that judges and lawmakers do not relegate this complex issue to a legal debate on a singular point of law. Of course, it is necessary and worthwhile to clarify whether ‘sex discrimination’ should include discrimination on the basis of gender. However, the interaction between discrimination and agency must also be better acknowledged and further explored. The real-life consequences that transgender adolescents are forced to face every day when they are undermined in their agency to control their gender identity deserves more discourse. All too often, transgender adolescents are framed as victims of discrimination, harassment and violence, rather than active agents forging their own unique gender identity. If we want to end the mistreatment of transgender adolescents, more needs to be done to understand, respect and recognize the courage of transgender youth and the role that agency can play in empowering these children to assert control over their own gender identities. 

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Sheila Varadan 2017-03-06T08:50:00+00:00
Hundreds of euros for one small photo - wsifranchise.info http://wsifranchise.info/articles/hundreds-of-euros-for-one-small-photo http://wsifranchise.info/articles/hundreds-of-euros-for-one-small-photo#When:07:58:00Z
The common practice of reproducing photos on websites that are taken from internet without crediting the source is resulting in huge costs for those who underestimate the consequences.
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It is common practice that photos that are found somewhere on the internet are published on a website without crediting the source. Many private individuals and businesses are unaware that this is not allowed or they underestimate the consequences. That can be a very expensive mistake. The search engines nowadays used by rightholders have become so effective that basically every photo can be traced. Even if such a photo is removed from the website at the rightholder’s first request, the website owner is liable for compensation to the amount of hundreds of euros. If he refuses to pay, he runs the risk of a decision by the subdistrict court, in which the judgment on damages might be slightly lower but it will include an order to pay the full costs of the proceedings of up to several thousands of euros. Subdistrict court judgments to this effect are increasing. And there are many more amicable settlements, some with confidentiality clauses, that remain below the radar. The enforcement of copyright regarding photos on the internet has become a profitable business model for some photographers and their lawyers.

Using a photo on a website without the permission of the rightholder is not allowed, especially not without referring to the source. If the source is mentioned and the author is correctly named, the use of the photo might be qualified as a legally permissible citation, but only if its use is functional and subordinate. Usually, however, source and attribution are lacking, in which case there can be no question of a permissible citation. A subdistrict court judge therefore has no other option than to rule that it constitutes copyright infringement. Even if the photo has been removed from the website at the first request. Subsequently, damages to the amount of several hundreds of euros will be awarded, in some cases at a rate of 25 to 200% above the base rate due to the absence of a proper reference to source or name, to cropping the photo or to loss of exclusivity.

In copyright cases it is mainly the order to pay the full costs of the proceedings that results in people, often without legal representation and claiming unmeritorious defences, having to pay a lot of money. Lawyers who do have the proper knowledge of copyright laws reluctantly have to advise their clients settle claims for hundreds of euros and to advise their clients to be more careful in the future.

So my advice to you is do not re-use a photo taken from the internet on the internet, because it might cost you hundreds of euros.

Sources:

  • ECLI:NL:RBROT:2017:1143
  • ECLI:NL:RBAMS:2017:318
  • ECLI:NL:RBDHA:2016:15985
  • ECLI:NL:RBDHA:2016:15983
  • ECLI:NL:RBMNE:2016:5518
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Dirk Visser 2017-02-27T07:58:00+00:00
Who to vote for in these challenging times? - wsifranchise.info http://wsifranchise.info/articles/who-to-vote-for-in-these-challenging-times http://wsifranchise.info/articles/who-to-vote-for-in-these-challenging-times#When:06:00:00Z
Many people do not yet know which party to vote for in the upcoming elections. To avoid escalation of conflicts it has become essential to choose individuals with balanced minds – politicians who are able to transcend a dualistic world view.
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This year there will be elections in several European countries and on 15 March it will be the Netherlands’ turn. The number of parties to choose from here is historically high, no less than 28. But even with such a huge choice many people have said they do not yet know which party they are going to vote for. Apparently, choosing the right political party in these times is far from easy. And how do you know you have made the right choice? After only one month of Trump’s presidency in the US, I’m sure many protest voters are already very much regretting their choice. They had listened to his many promises but had not taken account of his personality.

Focus on individuals

Therefore it makes sense to be more aware in advance what the likely consequences will be of a particular vote. I think the prime question for the coming elections (in whatever country they take place) is: do you want to contribute to an escalation of conflicts (on different levels) or do you genuinely want to contribute to a reversal of the process? Considering the current developments in world politics and the presence of a survival instinct in all of us, I bet not many people would seriously opt for an escalation.
To realize the reversal process, a decline in conflicts, I think it is more important than ever that – before we blindly accept the beautiful promises of the party programmes – we must first take a closer look at the individuals within the parties, starting of course with the party leaders. The current situation in the US, which is affecting the whole world, shows that it is essential to get individuals with reasonably mature, balanced minds on the influential positions. The party banner they operate under is not insignificant, but it takes second place.

Transcending dualism

For me, the central criterion is to vote for someone who personally knows the limits and dangers of a dualistic world view, and is also able to transcend it – thereby creating a mental space for building bridges. In a nutshell we can say that dualism is an expression of our ego consciousness, which is rooted in our heads, whereas transcending it means that our heart gets involved as well and is even allowed to take over. When this happens, we are bound to remember that in fact we have always been interconnected beings – connected to others, to the country, and to the world.

Reciprocity

That this deeper, connected side of ours is not just some fanciful idea we can witness in the fact that no one can live without breathing the air, drinking the water, and eating the food, which the natural environment keeps on offering us continually without asking anything in return. And the incredible amount of cultural wealth, created by people of previous generations and freely given to us, must also not be taken for granted. Transcending dualism means becoming aware of the importance of reciprocity: of being deeply grateful and considering it natural to offer something in return for all that has been given. This is essential wisdom for politicians who genuinely want to serve the inhabitants of their country and the natural world. It is my firm belief that only politicians who know at heart that we are interconnected beings can be trusted with making good decisions and creating good laws.

Avoiding bad laws and bad examples

I think we should avoid voting for politicians who are still largely missing this kind of wisdom. Observing today’s political developments we can see that ego-driven politicians are primarily identifying themselves with the Absolute Good and are recognising anything negative only in an absolute sense in other easily identifiable groups. Jungians would say they are projecting their inner shadow onto others. It should be clear to voters that politicians with this kind of dualistic mindset cannot serve anyone but themselves and should not be trusted with anything either – least of all with taking decisions and making laws that deal structurally with the problems in our society. And we should not forget that they are simply setting a bad example to all of us, by saying that it is OK to be like them – to be angry all the time, to be proud to exclude people, to project fear onto others – and that this is all there is to being human.

Balance and challenge

But of course there is a lot more to being human, and fortunately many people are aware of this. We should not underestimate the fact that a growing number of people on this planet have discovered the wealth of their inner potential, and know that the meaning of their life depends on developing this potential. They are continually working on transcending their own dualistic tendencies, on balancing their ego and their deeper interconnected side. They know that it is an exciting project that is never finished, and that there is also a real challenge in being involved in this. Because of this they have begun to feel more part of a rising Earth Community than of any particular country. (See my previous blog on this theme.) Naturally there are politicians who have picked up this ‘spirit’ as well and try to include it in their policies.

Finding the right candidate

How can we recognise these kinds of politicians? Simply by their sense of being genuinely grateful and compassionate, by their honesty and openness, by their peaceful intentions, by their cooperative nature, by the absence of any smart media strategies to trick us into voting for them, by the absence of hidden agendas. And, perhaps most importantly, by the fact that they only speak after they have listened! Personally I have spotted a few Dutch politicians who express these qualities to a reasonable degree. And, after having weighed the content of their party programmes as well, one of them will get my vote in March.  

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Wim Bonis 2017-02-22T06:00:00+00:00
Towards a European ban on microbeads - wsifranchise.info http://wsifranchise.info/articles/towards-a-european-ban-on-microbeads http://wsifranchise.info/articles/towards-a-european-ban-on-microbeads#When:14:19:00Z
The Plastic Soup Foundation is campaigning to ban microbeads in cosmetics products. Students of the Leiden Advocacy Project on Plastic (LAPP) wrote a memo providing legal guidance on the prohibition of microbeads in the EU.
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Have you ever thought about plastic in your toothpaste? Probably not. It has been common practice for the cosmetics industry to add tiny little particles of plastic, called microbeads or microplastics, to everyday products such as shampoo, scrub products and toothpaste. Since the microbeads end up in our household waste water, they eventually end up in the ocean leading to environmental pollution on a global scale which is probably irreversible. The tiny size of the particles makes them hardly visible to the naked eye, so they are a more or less hidden threat to the environment and human health.

The Plastic Soup Foundation

Since 2012, the Dutch NGO the Plastic Soup Foundation (PSF) has been campaigning for a European ban on microbeads in cosmetics. Although the campaign was initially inspired by environmental considerations, recent research has identified serious human health risks due to exposure to microplastics, for example through the consumption of seafood and other food products, drinking water and through the air. Commissioned by the European Commission, consultancy agency Eunomia identified three options to regulate microbeads: the Cosmetics Regulation, the REACH Regulation and the Ecodesign Directive. The Plastic Soup Foundation wanted to know whether these regulations are indeed suitable for accommodating a ban on microplastics and what procedures should be followed. The Leiden Advocacy Project on Plastic (LAPP) was requested to review the three options from a legal perspective.

Cosmetics Regulation

The Cosmetics Regulation is more or less applicable to all cosmetics products. It aims at a high level of human health protection while establishing an internal market for cosmetics. Since the Cosmetics Regulation only regulates the safety of a product during normal use, and thus not indirectly via the food chain or water, the product itself should pose a risk to the health of the user. This could be true for products containing microbeads such as toothpaste and lip gloss, which can be swallowed, and creams, which can penetrate the skin. The EU Scientific Committee on Consumer Safety plays a central role in assessing whether substances can be restricted or banned for use in cosmetics products. Restricting microbeads in cosmetics products requires at least one amendment to the Annexes and the standard legislative procedures of the EU will apply.

REACH Regulation

While the Cosmetics Regulation only applies to cosmetics products, the REACH Regulation regulates the registration, evaluation, authorisation and restriction of chemicals in general. The purpose of the REACH Regulation is to ensure a high level of protection of human health and the environment, as well as the free movement of substances on the internal market. There are several levels of restriction. A substance may be used under certain conditions or banned in a specific product category or - in the case of the most dangerous substances – may not be put on the market or allowed to be used at all. From a quick examination of the list of restricted substances, it appears that most of the substances are placed on the restriction list for reasons pertaining to risks to human health, primarily due to being carcinogenic or toxic for reproduction. This might give rise to the suggestion that plastic particles may not reach the severity threshold required by the REACH, but further research regarding the effects of microplastics on organisms including humans should clarify this. Moreover, a substance can also be restricted for environmental reasons, such as the persistence of substance. This could be the case for microplastics, because plastics are highly persistent and hardly degrade at all under normal circumstances. A first step in restricting microbeads under the REACH Regulation is the compiling of a ‘dossier’ on substances by the European Chemicals Agency. After assessments by several committees and multiple consultation rounds, an amendment must be adopted. Further scientific research regarding the toxicity and persistence of microplastics could be helpful in this procedure.

Ecodesign Directive

While the Ecodesign Directive was adopted in 2010 with the aim of improving the energy efficiency of products, it has been suggested that the directive is also suited to improving a product’s resource efficiency. Its preamble explicitly refers to ‘extending its scope beyond energy-related products’ and the Commission has called ecodesign pivotal in minimizing waste. By setting standards regarding waste treatment and recycling, the use of microplastics could be banned in certain product groups. But, before this can happen, an amendment must be adopted to include resource efficiency as a leading requirement for design standards. Hence, banning microbeads via the Ecodesign Directive requires multiple amendment procedures; first to amend the Ecodesign Directive itself and second to set standards for certain products.

Challenges  

As microbeads are increasingly being acknowledged as an urgent environmental problem, a quick solution is preferred. The three options studied all require multiple procedures and further implementing measures to establish a complete ban on microplastics in all cosmetics products, but also in other products  - very much a time-consuming process in the EU. To speed up the removal of microbeads from cosmetics products, the PSF also looked at the adoption of voluntary agreements with the European cosmetics industry. However, Cosmetics Europe, the European branch organisation, was very hesitant to discuss any branch agreement for reasons related to EU competition law. Voluntary agreements between manufacturers are regulated by the rules of EU competition law and huge fines have been issued for price fixing in the margins of a voluntary environmental agreement. Therefore, enthusiasm for branch agreements has generally faded. In our view, a voluntary phase-out of microbeads by manufacturers remains a possibility, but only under the strict conditions of EU competition law and only on a completely independent and voluntary basis. A further issue is the adoption of an all-encompassing definition of microbeads, as microbeads can consist of several kinds of microplastics. The definition of a substance is essential when incorporating it into a directive or regulation. National initiatives banning microbeads, such as those in the United States and Canada, may function as guidelines on that matter and will be further studied by LAPP.

While a definite solution may take some time, the current momentum for action on plastic pollution, as well as resource efficiency and the circular economy, should stimulate the European Union to act powerfully and effectively. At LAPP, we are honoured that our work is contributing and will continue to contribute to the campaign of PSF and other organisations for a ban on microbeads.

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Judith Jansen, Floor Veldhuis, Marleen Schreuder 2017-02-17T14:19:00+00:00