General Programme

General Research Leader: Frederik Swennen

 

Our core legal fields are:

Law of Persons and Family Law
The Law of Obligations, particularly Tort Law
Property Law
Family Property Law
Insurance Law
Medical & Health Law
Private International Law (Conflict of Laws)

Alongside free research in those fields, PR2 focuses on a research programme with currently four interconnected lines of research, in which our fields of law and longitudinal focal points converge:

Contractualisation
Kinship Studies
Liability & Accountability
Personality Rights

Ongoing projects

"Masculinity as property": Towards a new legal theory on the relationship between gender-based forms of privilege and the law. 01/11/2020 - 31/10/2022

Abstract

Rooted in Critical Race Theory and Feminist Legal Theory, this project starts from the premise that masculinity continues to occupy a privileged position upheld by law. Despite the fact that gender equality has been formally achieved through the anti-discrimination framework, the law still legitimises gender-based disparities. The development of a new legal theory that departs from the traditional anti-discrimination framework is crucial to pinpoint and explain where male privilege is still endorsed by law. Inspired by Harris's foundational "Whiteness as Property", which conceptualises whiteness as a form of property guaranteed by law, this project aims to explore whether, and if so how, her theory of race-based oppression can be used to develop a new legal theory that better makes sense of (remaining) gender-based forms of oppression, by conceiving of masculinity as a form of property. In the same way as the exclusive enjoyment of property is legally protected, it can be argued that the privileges associated with cis-gender straight white masculinity evolved to become advantages guaranteed by law. Along this line of reasoning, after formal equality was achieved the law continues to protect this form of property in that it supports the status quo that de facto benefits men. In order to test this hypothesis and further develop the theoretical framework, recent European Union and Council of Europe law and case law that pertain to gender equality will be critically examined.

Researcher(s)

Research team(s)

Compensation funds: their nature, function and legality. 01/10/2019 - 30/09/2021

Abstract

Compensation funds provide compensation to victim of accidents regardless of whether their damage is the result of anyone else's fault. They are created because of perceived gaps of cover in or shortfalls in the compensation offered by the three other, traditional sources of compensation, i.e. tort law, private insurance and social security. It is hard not to see the many advantages of compensation funds: they offer compensation to victims who do not bear a heavy burden of proof, in an easy, fast and more administrative way and are nog obliged to go to court. Compensation funds seem to be a kind of deus ex machina, as the number of compensation funds is growing rapidly in Belgium. In view of their success, it is surprising till now compensation funds have not been the subject of any overall, critical analysis. This research project will investigate the accordance of compensation funds in the light of human rights, i.e. the right of access to court (given that some funds restrict this access) and of non-discrimination (given the difference in treatment between victims that can rely on a fund and those who can't). Moreover, it will be investigated whether compensation funds fulfill their objectives, i.e. reasonable compensation, easy access, coherent and transparent. Last but not least the project will analyze who should pay these funds: the government or the private sector.

Researcher(s)

Research team(s)

Including children for a better and more child-friendly case-handling, procedure and enforcement of decision in cross-border family disputes (INCLUDE). 01/09/2019 - 31/08/2021

Abstract

The 1980 Hague Child Abduction Convention has a limited but essential goal: assure the prompt return of children who are unlawfully taken to or retained in another member state. The Brussels IIa revision, currently under revision, complements this instrument. The European Commission and the European Parliament pleaded for a stronger focus on mediation and a better protection of the best interests of the child. This seems to be of vital importance. Recent research revealed that children feel frustrated about the lack of clear communication and a limited understanding of the situation. Additionally, children had the feeling that their opinion was not taken into account, even when they did have the opportunity to be heard. An undesired outcome for the child leads to feelings of desperation and anxiety. With regard to enforcement, a significant negative effect of the arrest of the abducting parent is perceived on the wellbeing of the child. Children who did not get the chance to say goodbye to their family and friends, alsoshowed a lower wellbeing. On the other hand, children who receive psychological assistance upon return, show a significantly better wellbeing as compared to children who did not receive such assistance. This research project aims to discuss with youngsters the most appropriate way to deal with child abduction cases (both at the level of the procedure and at the level of the enforcement of the judgments). The University of Antwerp team will provide the literature study, while the other partners will hold workshops with children to discuss children's rights and the procedures. The University of Antwerp team will use the results to write a good practice guide for professionals. the aim is to ensure a child-friendly approach to the problem.

Researcher(s)

Research team(s)

The legal status and protection of unborn human life: an approach from the perspective of human dignity. 01/01/2019 - 31/12/2022

Abstract

Current Belgian law regarding unborn human life lacks clarity, and is inconsistent and incoherent. The few relevant legal provisions are compartmentalised in different instruments and legal domains, and available case law is quite divergent. That piecemeal approach leads to legal uncertainty. The same is true on the international level, in human rights instruments and case law. Hence, the purpose of this project is to develop a coherent and consistent approach towards unborn human life in Belgian law. It is hypothesized that the concept of human dignity can fulfill a key function, when formulated as an operational principle on the basis of which the law on unborn human life can be reformulated. This function is already hinted at in international instruments and case law, with regard to entities to which human rights protection is not (yet) applicable as such. With a view to further operationalization, the current Belgian framework, including international and European law (descriptive part) will be evaluated through functional comparison with the French, Dutch, and federal German and United States jurisdictions (evaluative part). Ultimately, the principle of human dignity and the results of the comparative research will be used to propose and elaborate a coherent and consistent approach to unborn human life in Belgian law (normative part).

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Research team(s)

Cross-border access to end-of-life services in Europe: a legal analysis. 01/01/2019 - 31/12/2022

Abstract

Within Europe, cross-border access to end-of-life services is quickly gaining in importance and, very recently, Belgium has become one of the main countries of destination. The proposed research project will be the first to systematically analyse the legal challenges that arise when European citizens want to access end-of-life services in another European country. The focus will be on assisted suicide tourism; euthanasia tourism; the import of suicide pills or materials; and the crossborder recognition of advance directives. The first goal of the research project is to examine the legal measures that countries have taken or could envisage to prevent their citizens from accessing end-of-life services abroad that are prohibited on their territory and, conversely, to examine the legal measures that are in place or could be envisaged in countries of destination to restrict foreigners from accessing certain end-oflife services on their territory. Research will be restricted to France and the United Kingdom as countries of origin, and to Belgium, the Netherlands, and Switzerland as countries of destination. The second and main goal of the research project is to examine the legal acceptability of the restrictions so identified, in the light of European Union law, human rights law, and international private law. In this way, we will determine which restrictions to cross-border access to end-of-life services in Europe have been or could be legitimately imposed.

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Research team(s)

Credit for the Libraries in Social and Human Sciences (Faculty of Law). 01/01/2019 - 31/12/2021

Abstract

This project represents a research contract awarded by the University of Antwerp. The supervisor provides the Antwerp University research mentioned in the title of the project under the conditions stipulated by the university. The project aims to set up a model for well-balanced development of the law library as a laboratory for research and education in all domains of the law.

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Research team(s)

Scientific chair: Animal & Law. 01/10/2018 - 30/09/2022

Abstract

The objective of the chair is twofold: to develop animal dignity as a legal principle against which human actions and failings in relation to animals can be judged; and to encourage societal debate from a scientific perspective to raise awareness of the concept of animal dignity.

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Research team(s)

Late-term abortions: A comparative analysis of regulatory frameworks and legal challenges. 01/10/2018 - 30/09/2022

Abstract

Abortion of a viable foetus (henceforth late-term abortion) is a highly contentious topic and a source of growing concern. Despite raising truly exceptional legal issues, late-term abortions have not yet received systematic attention from legal experts. In order to fill this gap, the proposed research will be the first to systematically, and by way of international comparison, analyse the challenges that late-term abortions pose for medical and human rights law. Such an analysis is of exceptional importance in that it will highlight the possible limits of (the application of) essential principles of medical and human rights law. The focus will be on the legal tension that may exist between the legal recognition of the interests of the viable foetus and the rights to self-determination of the pregnant woman, which may impact significantly upon the physician's duty of care. This analysis will help determine whether we are witnessing the emergence of a new legal doctrine, that is focusing on the "best interests of the viable foetus", shows parallels with the "best interests of the child" standard and may require or prohibit certain medical interventions in the context of late-term abortions. More generally, it will shed fresh light on the unique and highly fascinating legal concept of "progressive legal protection", whereby legal protection is gradually extended to a foetus as it matures, reaches viability, and is born. The urgency and topicality of the project is further demonstrated by the fact that, within the Belgian context, the legal status of late-term abortions is not even settled, major legal developments are anticipated, and empirical data on the subject are completely lacking. For that reason, the project will give particular attention to the outstanding legal issues under Belgian law and to the merits and implications of position statements and legal initiatives that have recently been formulated. The project will result in recommendations to improve abortion legislation. Crucially, to provide an evidence base to inform these recommendations, we will be the first to, in close collaboration with other research groups that very recently have obtained access to two unique and relevant data sets, analyse empirical data on the practice of late-term abortions in Flanders.

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Research team(s)

Definition and relevance of predisposition and pre-existing conditions in Tort law and Insurance law. 01/10/2018 - 30/09/2022

Abstract

Predisposition and pre-existing conditions are one of the most controversial and difficult topics in law, especially Liability Law and Insurance Law. The (pathological) predisposition is a characteristic, mostly unknown, which does not affect ordinary life, but which favors the occurrence of damage when an accident happens. An example is when a person has a very rare allergy to a substance, and due to a car accident he is hospitalized and injected with that substance resulting in his death. The pre-existing condition is an abnormal physical or psychological condition of the victim which is already known or at least exists at the time of the accident. Examples are: anatomical elements (only one eye, or one leg), pathological physical elements (a heart defect) or psychological elements (schizophrenic episodes, post-traumatic stress disorder, depression). The most famous example is the eggshell skull-case in which a person with an eggshell skull or very thin skull suffers dead from an injury that would normally cause only a bump on a normal person. The negligence of a third person can aggravate this pre-existing condition. A one-eyed person loses his second eye due to an accident. An accident can also hasten the evolution of the pre-existing condition. A terminally ill patient who dies due to a car accident is an example of this hypothesis. In all the above mentioned cases the crucial question is whether the victim will be compensated in full or only for the foreseeable damage or for the damage caused separately. In other words, must the tortfeasor pay for the car accident or for the death of the victim? For one eye, or for the blindness? For the dead due to a car accident or only for the time he had to live? In tort law the basic rule is the right of full compensation. This cornerstone of tort law is seen as just and fair and according to the goals of tort law. The rule of full compensation comes under pressure when the damage is unforeseeable or the extent of the damage is unforeseeable due to a predisposition or pre-existing condition of the victim. Hence, an important research question is: are the issues of predisposition and pre-existing conditions in line with the principle of full compensation? Predisposition and pre-existing conditions also play an important role in insurance law. In order to make a proper assessment of the insured risk, the life or physical integrity of the person, insurance companies want information about the health condition of the prospective insured person. For this purpose insurance companies use medical questionnaires or impose medical examinations to look for pre-existing conditions. Questions about pre-existing conditions could violate some fundamental rights, like the right of privacy, and the right on non-discrimination. These questions are one of the key points of this project. Furthermore, the question arises whether the insurance company can determine the definition of a pre-existing condition and can also refuse coverage when no information about a pre-existing condition has been provided. Insurance companies use several clauses to exclude pre-existing conditions, which seems possible, regarding the principle of freedom of contract. First, they limit coverage of the pre-existing condition for a specified period (e.g. waiting period for 1 year). Second, insurance companies may raise an insured's premium due to the existence of a pre-existing condition (asthma e.g.). Finally, and more importantly, insurance companies often use pre-existing condition clauses to deny insurance altogether or to deny coverage of the specific condition for the lifetime of the applicant. The insurance practice must also be assessed in the light of fundamental rights and the contractual balance between parties.

Researcher(s)

Research team(s)

BECAREFUL: BEst interests interpretation in Child Abduction cases: an exploration into REsolving Fragmentation Under different international Legal regimes. 01/10/2018 - 30/09/2022

Abstract

According to children's rights law, as a subsection of human rights law, the best interests of the individual child must be a paramount consideration in all matters involving a child. According to private international law, when a parent wrongfully takes a child from one country to another, the general approach to the best interests of the child is that that child must be speedily taken back (unless exceptional circumstances can be proved). The individual versus general approach to the best interests of the child has caused debate among scholars and confusion among judges and civil servants. The question arises how these two international legal frameworks (in particular the UN Convention on the Rights of the Child and the Hague Convention on the Civil Aspects of International Child Abduction) interact and should interact with each other. This question is not limited to the issue of international child abduction. The difficult interaction, sometimes even conflict, between international legal regimes is a known problem. It can be addressed by seeking a hierarchy between the legal regimes, i.e. that human rights law must prevail over other areas of law or that human rights law must be seen as supportive rather than dominant. However, the hypothesis of this research is that reconciliation should be sought rather than hierarchy. The research envisaged by BECAREFUL will focus on seeking such reconciliation in the issue area of international child abduction. The researcher will investigate case law of two supranational courts, representing the different fields of law (the European Court of Human Rights and the Court of Justice of the EU) as well as national courts of six countries. The investigation will seek to establish how these courts combine the strict return rules of the Hague Convention with the best interests of the individual child as formulated by the Children's Rights Convention. This will be done through content analysis with the aid of NVIVO software. The outcome of the research will be used to draw conclusions not only for the issue area but also for the bigger debate of the interaction between international legal frameworks.

Researcher(s)

Research team(s)

Compensation funds: their nature, function and legality. 01/01/2018 - 31/12/2021

Abstract

The Belgian legislator is creating a rapidly growing number of compensation funds. Such funds provide full or partly compensation to victims of accidents, regardless whether or not their damage is imputable to someone else's fault. They are founded because of perceived gaps of coverage, or shortfalls in compensation, offered by the three other traditional sources of compensation, i.e. tort law, private insurance and social security. It is hard not to see the many advantages of compensation funds; a.o. they offer compensation without heavy burdens of proof to victims in an easy, fast and more administrative way, out of court. Compensation funds however seem to be a kind of deus ex machina. In view of their success, they surprisingly have not been the subject of any overall, critical analysis. Hence, this research project sets out to determine and assess their nature, function and legality, with a view of developing consistent touchstones for the organisation of current and future funds. More precisely, the project will investigate the accordance of compensation funds in the light of human rights, i.e. the right of access to justice and of non-discrimination(legality). Moreover, it will be investigated whether compensation funds fulfil their objectives, i.e. reasonable compensation, easy access, coherence and transparency (function). Last but not least the project will analyze who should endow these funds: the government or the private sector (private or public nature).

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Research team(s)

RETHINKIN – Family and family law studies in the Low Countries 01/01/2015 - 31/12/2024

Abstract

This is a fundamental research project financed by the Research Foundation – Flanders (FWO). The project was subsidized after selection by the FWO-expert panel. RETHINKIN steers the scientific redefinition of family law in the Low Countries and aims at taking up an international leading role from there. Redefining family law is necessary due to societal evolutions that have undermined the fundaments of traditional family law. RETHINKIN aims at pioneering in legal research in the Low Countries by redefining family law in a constant dialogue with other scien-tific disciplines (intra- and interdisciplinary research) and with civil society (transdisciplinary). Three research questions underlie the activities of RETHINKIN: 1. Which is the competence of the State, both in substantive and procedural law, to regulate the family as actor besides the market and social security ? 2. What should be the content of State intervention, from the perspectives of citizenship, police power and the parens patriae-doctrine? 3. How can law and policy be better tuned to social practices and perceptions ? RETHINKIN currently joins the entire Flemish academic research into family law with the Dutch Al-liantie Familie & Recht (Alliance Family and Law – ACFL, NIG en UCERF) as "Low Countries". RETHINKIN will first draw a Roadmap for Kinship & Family Studies in the Low Countries and develop its further scientific activities from there, towards applications under the EU Framework Programmes for Scientific Research and Innovation. A continuous dialogue with an international multi- and trans-disciplinary panel will allow opening the current research landscape so as to cultivate new areas in alliance with other disciplines. Under construction: http://www.rethinkin.eu

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Research team(s)

Project website

Past projects

Consultancy of a recommendation on equity of access to vaccines in the context of public health crisis. 15/10/2020 - 20/11/2020

Abstract

Member States of the Council of Europe currently face a severe public health crisis as a result of the COVID-19 pandemic. This health crisis is having a devastating effect on individuals, families, and communities. It also raises major ethical challenges and forces governments and competent authorities to take difficult decisions in a context of uncertainty and scarce resources. This project involves consultancy in the development of a possible legal instrument guaranteeing persons, within the context of a pandemic, access to vaccines in accordance with ethical principles and respect for human rights and fundamental freedoms as enshrined in Council of Europe instruments. These include the right to life and the protection against ill-treatment (Articles 2 and 3 of the European Convention on Human Rights), the right to the protection of health (Article 11 of the European Social Charter), and the principle of equitable access to healthcare (Article 3 of the Oviedo Convention).

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Research team(s)

Consultancy on a strategic action plan on human rights and biomedicine with regard to human rights and technologies in biomedicine for the period 2020-2025. 20/09/2019 - 31/10/2019

Abstract

Consultancy, in coordination with the Secretariat of the Committee on Bioethics of the Council of Europe and the Chair of the Drafting Group for the Strategic Action Plan, carrying out an editorial review of the Strategic Action Plan on human rights and new technologies with a view to its presentation at the Committee on Bioethics at its 16th plenary meeting (19-21 November 2019).

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Research team(s)

Handbook for parliamentarians on the Council of Europe Convention against trafficking in human organs. 09/05/2019 - 05/10/2019

Abstract

Drafting a "Handbook for parliamentarians on the Council of Europe Convention against Trafficking in Human Organs" designed to explain to parliamentarians and parliamentary staff the different provisions of the Convention and its added-value, and give them some examples of good national legislation.

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Research team(s)

Project website

Analysing and optimalising the decision tree and the process for administrative fines in animal welfare law. 21/01/2019 - 20/01/2020

Abstract

The research is meant to analyse legally and empirically the possibilities to optimize the decision tree which is used to decide about administrative fines given to persons who violated Flemish animal welfare law.

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Research team(s)

Outline of the Strategic Action Plan to address human rights challenges raised by developments, in the field of biomedicine for the period 2020-2025. 12/11/2018 - 20/12/2018

Abstract

External consultant in the preparation of the outline of the Strategic Action Plan for the period 2020-2025 of the Committee on Bioethics of the Council of Europe, to address the human rights challenges raised by developments in the field of biomedicine.

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Research team(s)

Organ transplant tourism. 04/10/2018 - 30/10/2018

Abstract

Support of rapporteur Ms Stella Kyriakides, Committee on Social Affairs, Health and Sustainable Development, Parliamentary Assembly, Council of Europe, in the preparation of her report on "Organ transplant tourism" by providing an expert memorandum on the subject matter of organ transplant tourism (focusing mainly on the current state of affairs in Europe and worldwide, including the issues at stake, challenges, policy responses, related to this topic). Preparation of an expert memorandum on the subject matter of organ transplant tourism for rapporteur Ms Stella Kyriakides, Committee on Social Affairs, Health and Sustainable Development, Parliamentary Assembly, Council of Europe, October 2018. Presentation of the expert memorandum before the Committee on Social Affairs, Health and Sustainable Development, Council of Europe, 4 December 2018, Paris.

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Research team(s)

Project website

The Principle of Equality of Citizens vis-à-vis Public Burdens: A General Basis for State Liability Not Based on Fault? 01/10/2018 - 30/09/2020

Abstract

It is beyond dispute that the State can be held liable like any other person if it commits a fault that causes damage. A more difficult question is whether it is possible to claim compensation for damage resulting from lawful State intervention. In France and the Netherlands, this is generally possible on the basis of the principle of equality of citizens before public burdens. According to this principle, the State cannot without compensation impose greater burdens on citizens than they need to bear in the public interest. More recently, the highest courts of Belgium have also applied this principle in the context of private property restrictions. However, little is clear as to the precise scope, meaning and function of the principle in Belgian law, and it remains an open question whether the adoption of the principle can be interpreted as a general acceptance of nofault State liability. Therefore, the PhD dissertation aims to elaborate a general framework regarding no-fault State liability and to test this framework against specific applications in property restricting legislation. The theoretical research results will be tested and applied within specific situations and ultimately evaluated, with policy recommendations. The project will be conducted in an intra-disciplinary way and build on insights drawn from property, civil liability, administrative and European law.

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Research team(s)

Bioethics: protection of human rights in biomedicine. 11/06/2018 - 25/09/2019

Abstract

Coordination of the work of the expert group on the examination of the Law of the Republic of Belarus No. 28-З On transplantation of human organs and tissues of 4 March 1997 (as amended in 2007, 2012 and 2015, as well as including draft amendments of 2018), vis-à-vis its compliance with the standards laid down in the reference documents on transplantation of the Council of Europe.

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Research team(s)

Bioethics: protection of human rights in biomedicine. 11/06/2018 - 10/09/2018

Abstract

Consultancy services related to the examination of the Law of the Republic of Belarus No. 28-З On transplantation of human organs and tissues of 4 March 1997 (as amended in 2007, 2012 and 2015, as well as including draft amendments of 2018), vis-à-vis its compliance with the standards laid down in the reference documents on transplantation of the Council of Europe.

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Research team(s)

Informed Choices in Cross-Border Enforcement (IC2BE). 01/01/2018 - 31/12/2019

Abstract

Objectives: the efficient recovery of debts in cross-border cases is universally recognized as being of vital importance. The EU has passed Regulations on the European Enforcement Order (EEO; 805/2004), the European Payment Order (EPO; 1896/2006), the Small Claims Procedure (ESCP; 861/2007), and the European Account Preservation Order (EAPO; 655/2014), all of which are optional for claimants. The project aims at analysing how practitioners actually choose between those instruments, at disseminating knowledge about their application, and at raising awareness among practitioners.

Researcher(s)

Research team(s)

Compensation funds: their nature, function and legality 01/10/2017 - 30/09/2019

Abstract

Compensation funds provide compensation to victim of accidents regardless of whether their damage is the result of anyone else's fault. They are created because of perceived gaps of cover in or shortfalls in the compensation offered by the three other, traditional sources of compensation, i.e. tort law, private insurance and social security. It is hard not to see the many advantages of compensation funds: they offer compensation to victims who do not bear a heavy burden of proof, in an easy, fast and more administrative way and are nog obliged to go to court. Compensation funds seem to be a kind of deus ex machina, as the number of compensation funds is growing rapidly in Belgium. In view of their success, it is surprising till now compensation funds have not been the subject of any overall, critical analysis. This research project will investigate the accordance of compensation funds in the light of human rights, i.e. the right of access to court (given that some funds restrict this access) and of non-discrimination (given the difference in treatment between victims that can rely on a fund and those who can't). Moreover, it will be investigated whether compensation funds fulfill their objectives, i.e. reasonable compensation, easy access, coherent and transparent. Last but not least the project will analyze who should pay these funds: the government or the private sector.

Researcher(s)

Research team(s)

Financial supervision in the insurance industry. 01/10/2017 - 31/12/2018

Abstract

This project examines how the implementation of the Solvency II directive in the act of March 13, 2016 and the expanding of the MiFID market conduct rules to the insurance industry can comply with the principle of proportionality as a general legal principle. From this perspective, the research analyzes both prudential supervision and market conduct supervision on the insurance industry. The goal is to define recommendations for the legislator, on the one hand, and for the National Bank of Belgium and the FSMA, on the other hand.

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Research team(s)

The Voice Of the Child in international child abductions in Europe (VOICE). 01/09/2017 - 31/08/2019

Abstract

General objective: assuring a child-friendly opportunity for children to be heard in cases of international child abductions and cross-border family conflict. The project examines case law of Belgium, Bulgaria, France, Germany, Hungary, Italy, the Netherlands, Poland, Spain, Sweden, as well as of the Euroepan Court of Human Rights and the european Court of Justice.

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Research team(s)

The Function and Criteria of Intergenerational Inheritance Law. 01/01/2017 - 31/12/2020

Abstract

According to intestate inheritance law, one's descendants inherit the property of his estate. The sole criterion for intergenerational inheritance rights is legal parentage. However, parentage neglects different family situations. Despite the societal evolution to families of choice (e.g. blended families, homo-sexual couple with children), children who are only biologically or socially related to the deceased, do not inherit because of the requirement of legal parentage. Furthermore, because legal parentage is sufficient to inherit, financial need of heirs and the quality of the relationship with the deceased are not taken into account for the entitlement to intestate inheritance rights. Yet, the European Court of Human Rights and the Belgian Constitutional Court take into account a broader variation of family situations. This tendency should also be noted in foreign legal systems, such as The Netherlands where it is possible for stepchildren to inherit equally to legal children. Also in other Belgian domains of law legal parentage is not an exclusive criterion. For example, in maintenance law children who are only biologically related to their parent can claim maintenance. These evolutions question the function and criteria of intergenerational intestate inheritance law. Thus, this research will verify whether legal parentage is necessary to inherit, and whether it is sufficient. To answer this question the function of intergenerational inheritance law will be determined.

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Research team(s)

The Function and Criteria of Intergenerational Inheritance Law. 01/10/2016 - 30/09/2020

Abstract

Belgian intergenerational intestate inheritance law is parentage-based. The sole criterion for intestate inheritance rights is legal parentage. However, parentage neglects different family situations. Today the societal understanding of family relations is no longer limited to legal parentage relations. There has been an evolution to families of choice (e.g. blended families, homo-sexual couple with children). Despite this evolution, children who are only biologically or socially related to the deceased, do not inherit because of the requirement of legal parentage. Furthermore, because legal parentage is sufficient to inherit -neither financial need nor any criteria other (such as a good relationship) is required-, situations of financial need of heirs and the quality of the relationship are not taken into account for the entitlement to intestate inheritance rights. Yet, the jurisprudence of the European Court of Human Rights and the Belgian Constitutional Court do take into account a broader variation of family situations and have evolved to a less parentage-based approach. This tendency should also be noted in foreign legal systems, such as the Netherlands where it is possible for stepchildren to inherit equally to legal children. Also in other domains of Belgian law, legal parentage is not an exclusive criterion to give entitlement to certain rights. For example, in maintenance law children who are only biologically related to the deceased can claim maintenance from the estate of their biological parent, if they are in financial need. These evolving societal and legal perspectives give rise to questions about the contemporary function and criteria of intergenerational inheritance rights. Thus, this research will verify whether legal parentage is necessary to inherit intestate, and whether it is sufficient to inherit. To answer this question the function of intergenerational inheritance law in the society will be determined.

Researcher(s)

Research team(s)

Organ trafficking and trafficking in persons for the removal of organs: A descriptive and critical analysis of international legal frameworks and their implementation. 01/10/2016 - 30/09/2020

Abstract

Organ trafficking – i.e. the use of financial inducements or other illicit means to obtain an organ – is a major point of concern for national governments, law experts, and physicians, due to its exploitative nature and its detrimental effects on the integrity of the transplant system. The combat against organ trafficking has only very recently become a priority for intergovernmental human rights, security and law-enforcement organisations, such as the United Nations, the Council of Europe, the European Union, the Organization for Security and Co-operation in Europe and Interpol. As a result, various international legal instruments prohibit commercial dealings, coercion and fraud in the context of organ donation. In a parallel legal development, organ removal has also been included in international legal instruments dealing with trafficking in persons. Following the example of these binding criminal law instruments in the field of trafficking in persons for the removal of organs, and in response to the loopholes left by them, the Council of Europe has recently adopted a Convention against Trafficking in Human Organs, hereby establishing a parallel criminal law regime. However, due to the very recent nature of the criminal law regimes developed around organ trafficking and trafficking in persons for the removal of organs, there is major interest in (1) a clear delineation between both types of crimes, and (2) the way in which relevant provisions are currently implemented and should best be implemented in domestic law. In addition, taking into account the heterogeneous origin of both legal regimes, uncertainty exists about a number of crucial legal issues. The proposed research project will involve an in-depth legal analysis of the exact scope and delineation of the parallel international legal frameworks developed around organ trafficking and trafficking in persons for the removal of organs. Particular attention will be paid to the importance of the recently adopted Council of Europe Convention against Trafficking in Human Organs, signed by Belgium and several other Council of Europe Member States at its signing ceremony held on 25 March 2015. Subsequently, the normative validity of key policy options in the implementation of both legal regimes will be examined. This will involve an assessment of (1) the (un)desirability of criminalising donors and/or recipients, and (2) the extent of the duty to report on the part of physicians who are confronted with instances of organ trafficking and trafficking in persons with the purpose of organ removal. Next, a comparative legal analysis will be undertaken of relevant legal provisions currently in place in (a) Belgium and its neighbouring countries, (b) European countries that have been involved in the trafficking crimes concerned (e.g. Moldova, Spain, Turkey), and (c) non-European countries which have recently adopted relevant provisions (e.g. United States, Israel, Pakistan). More in particular, this will involve an examination of (1) the criminal law provisions dealing with trafficking in persons for the removal of organs, (2) the criminal law provisions dealing with organ trafficking, and (3) the protective and preventative measures contained in the transplant regulations. Finally, on the basis of the findings of this research project, loopholes and best practice examples will be identified and guidance developed on how best to implement provisions .

Researcher(s)

Research team(s)

Empowering European Families. 01/08/2016 - 31/08/2017

Abstract

Empowering European Families (EEF) is a research project led jointly by Katharina Boele-Woelki (Bucerius Law School and Utrecht University), Wendy Schrama (Utrecht University) and Christiane Wendehorst (University of Vienna). It is co-financed by an action grant under the Justice Programme of the European Union and conducted in cooperation with the European Law Institute (ELI) as well as with the support of the Council of the Notariats of the European Union (CNUE). For want of a uniform European regime in the field of marriage and partnership law couples in the EU are still facing a number of problems when one or both partners live in a country other than their country of origin, when changing the country of their habitual residence, or when buying or selling property abroad. To a certain extent, the existing problems could be overcome by way of early choice of court and choice of law, and by agreeing in advance on important economic issues pertaining to a couple's legal relationship. EEF aims at removing obstacles to free movement for couples within the EU and at improving certainty and predictability within a couple's legal relationships by way of Comparative research on the ambit of party autonomy in family and succession law, Development of a set of information sheets and model templates to facilitate the use of party autonomy, and A strategy for awareness-raising among couples in the EU and their legal advisers

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Administration of a Minor's Estate by his Parents: Research into Belgian Law 24/12/2015 - 15/01/2016

Abstract

This project encompassed the Belgian report for a University of Groningen directed project on the administration of a minor's estate by his parents, on behalf of the Dutch Research and Documentation Centre (Ministry of Security and Justice)

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Kinship studies and health law. 01/12/2015 - 30/11/2020

Abstract

My research is devoted to the topics of organ trafficking, surrogacy, and experimental assisted reproduction technologies. With regard to the topic of organ trafficking, I will perform a legal analysis of the evolution and scope of the concept of organ trafficking and compare it to the concept of trafficking in human beings for the purpose of organ removal. This will be followed by a comparative legal analysis of national transplant regulations and penal provisions that are useful to prevent these types of crimes. In addition, I will also perform a legal and ethical analysis of key policy options in the combat against organ trafficking. With regard to the topic of surrogacy, I will explore (the evolution of) the supranational regulation of surrogacy and the regulation in Belgium and targeted other countries. Attention will also be given to the (alleged) right to procreate, to legal problems with respect to the nationality and parentage of children born under international surrogacy agreements and to the challenges raised by commercial surrogacy. The final subject concerns the legal implications of experimental assisted reproduction technologies, with particular attention to uterus transplantation, mitochondrial replacement technology, and 'artificial gametes'.

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Legal certainty versus the right to access to court 26/11/2015 - 31/12/2016

Abstract

ADR - Parties can use several methods to settle a dispute: from conducting negotiations to going to court and obtaining a judgment. This research focuses on the technique of settling a dispute contractually, as a result and tailpiece of a process of alternative dispute resolution (ADR). The doctoral research is well defined and focuses on the legal consequences of the settlement agreement. LEGAL CERTAINTY VERSUS ACCESS TO COURT – All western legal systems recognize the possibility for conflicting parties to settle their dispute via a contract, fixing their mutual rights and obligations. In general, such agreements are subject to the general law on obligations, in the same manner as any other contract is. Herein lies a possible problem. When conflicting parties decide to settle their dispute by concluding a contract, they want to settle it for once and for all. They want the contract to give them stability. Moreover, they want to exclude the possibility of one of the parties or a judge intervening in the precarious balance that was created by the agreement. The general law on obligations, however, offers parties possibilities to undermine that contract afterwards, as a result of which the conflict is rekindled. The parties did not get the legal certainty they wanted. The questions arises whether a new approach is needed. On the other hand, it is a fundamental human right that all citizens have at all time access to a court. But where lies the balance, necessary for a legally certain solution to contractually end a dispute? The research will examine if and to what extent the principle of party autonomy allows parties to settle a dispute for once and for all and will assess both the limits set out by law and those by case law to examine if a settlement agreement has a real added value, and if not, if and how the legal framework should change. This subject fits in with the research lines on "contractualisation" and "liability and accountability" of the research group 'Personal Rights and Property Rights' of the University of Antwerp. In 2014, the 'Antwerp Liability and Insurance Chair' was established. This proposal also fits in the research of this chair.

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Multi-parenthood, kinship terminology and the role of law: a critical analysis. 01/10/2015 - 30/09/2019

Abstract

This project aims to study the construction processes of terminology on new kinship formations, in the triangular interaction between social practice, public perception and the law, which affects the legal regulation of kinship. The project will focus on multi-parenthood, given its prominence on the policy agenda worldwide. Multi-parenthood is the condition where more than two parents are linked with a same child biologically, socially, intentionally and/or legally at the same time, e.g. joint parental projects of lesbians and gays or Three Person IVF. We do not have the words to address or refer to persons involved in multi-parenthood, which impedes it to develop in social practice, public perception and law. The project sets out to explore the gaps that now exist in the above-mentioned triangular interaction, in order to tackle the issue of what strategies the legislature could/should adopt to develop a truly accommodating legal framework. Overcoming the current dyadic and sexualised approach to parenthood in that context, will also enable developing new kinship studies in general. Through a law-in-context approach ('civilology'), this project will draw on an interdisciplinary methodological framework. Legal research methods will be combined with regulatory theory and different social science methods for secondary and primary data collection and analysis. The project will be the first to systematically and interdisciplinary address kinship terminology from a perspective of new kinship studies and to propose a legislative strategy towards the recognition of multi-parenthood. The project is divided into six Work Packages, which feasibility is guaranteed because they are embedded in current projects of the promoters' research group. WP1 encompasses a descriptive analysis of theories on kinship vocabulary and/in legal language and on new kinship formations, particularly multi-parenthood. WP2 will be spent on secondary data analysis and on the study of kinship vocabulary in social practices and public perception. WP3 aims at primary data collection and mining. WP4 will encompass a literature review on regulatory theory, particularly the performative effects of legal labelling. WP5 will provide a comparative law analysis of the possible strategies for the legal recognition of multi-parenthood. WP6 will allow integrating the results of WP1-5 and to critically analyse the triangular interplay between social practices, public perception, and legal recognition.

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Project website

Beyond coupledom: the regulatory dilemmas and policy challenges of singleness, polyamory and non-sexual households. 01/10/2015 - 30/11/2015

Abstract

This project addresses the question of how the state should deal with family formations that do not conform to the dominant matrix of the loving couple, and in particular how it should take up the challenges and difficulties these formations raise for law and public policy. It will focus on singleness, polyamory and non-sexual households in Belgium, Italy and the UK. The project will draw on diverse research sources: normative and regulatory theory, social science data, doctrinal analysis and focus groups. In correlation with the findings of my first three years as a FWO Pegasus MC Fellow, this study will provide a lens and case-study through which a core question for contemporary public policy is addressed: what legal and public policy instruments could and should the state adopt to deal with sexual and socio-cultural difference? The research will be conducted in four Work Packages. WP1 will offer a robust literature review to provide the appropriate foundation for the other WPs. WP2 will draw on a good wealth of ethnographic findings to provide a portrayal of the everyday experience of singles and individuals involved in polyamourous and non-sexual households. WP3 will engage in close textual analysis of a range of media representations published in the last 5 years. WP4 will delve into the question of the regulatory role of the state vis-à-vis citizens' autonomy in the construction and governance of their relationships.

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Comparative research parenting authority. 15/01/2015 - 01/07/2015

Abstract

This project represents a formal research agreement between UA and on the other hand the client. UA provides the client research results mentioned in the title of the project under the conditions as stipulated in this contract.

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Cross-Border Litigation in Europe: Private International Law Legislative Framework, National Courts and the Court of Justice of the European Union. 01/10/2014 - 30/09/2016

Abstract

This project represents a formal research agreement between UA and on the other hand EU. UA provides EU research results mentioned in the title of the project under the conditions as stipulated in this contract.

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Expertise Sessions for the Centre for International Private Law. 01/08/2014 - 30/09/2014

Abstract

This project represents a formal service agreement between UA and on the other hand Kruispunt Migratie-Integratie vzw. UA provides Kruispunt Migratie-Integratie vzw research results mentioned in the title of the project under the conditions as stipulated in this contract.

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Antwerp Liability Law and Insurance Chair (ALLIC). 01/01/2014 - 31/12/2020

Abstract

This project represents a formal research agreement between UA and on the other hand the client. UA provides the client research results mentioned in the title of the project under the conditions as stipulated in this contract.

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Antwerp Health Law and Ethics Chair (AHLEC). 01/01/2014 - 31/12/2020

Abstract

This project represents a formal research agreement between UA and on the other hand the client. UA provides the client research results mentioned in the title of the project under the conditions as stipulated in this contract.

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Liability Insurance: between protection and prevention. 01/10/2013 - 30/09/2017

Abstract

Liability insurance is profoundly imbedded in today's society, as evidenced by the broad use of compulsory (e.g. driver insurance) and optional contracts (e.g. family liability insurance). In this respect, insurance plays a key role in protecting the insured against the risks of liabilities imposed. At the same time, tort law is becoming more important as victims feel more entitled to receive compensation. As negligence still forms the base of tort law, strict liabilities increase, often with a link to liability insurance. Nevertheless, it is documented that insurance might induce moral hazard. Acting carefully becomes less important, if the financial consequences of liability can be shifted to the insurer. Hence, insurance companies need instruments to prevent this behaviour. To reconcile these two objectives, a balanced legislative approach is needed: too much focus on protection might give too much leeway to moral hazard offenders leading to adverse selection or inadequate premiums, while too much focus on prevention might, for instance, cause unwarranted exclusions of insurance applicants. Although the subject of insurance protection and moral hazard prevention has been studied separately in the existing law literature, no study has investigated whether there is a balance between both elements in Belgian insurance law. This project examines the prevalence of the 'protective' and 'preventive' motive in the Belgian insurance law. In view of the social importance of the research subject and the fact that moral hazard essentially deals with behaviour, the subject will not only be studied from an insurance law viewpoint, but also from an empirical viewpoint (psychology and the law and sociology and the law). More specifically, the project focuses on the examination of the legal framework of liability insurance and on the question if adequate protection is (still) offered to the insured. Given the fact that moral hazard is based on the assumption that insured have knowledge of the policy terms, it needs to be investigated whether this is true. The theory of legal consciousness will be used as a legal framework. The legal and empirical viewpoint will enrich the scientific study on insurance law and will give useful insights on the question how insurance regulation can be adapted to the legal consciousness. This project will also benefit the evidence-based knowledge of legal consciousness in the field of sociology and the law and psychology and the law.

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Acquisitive prescription. 01/10/2013 - 30/09/2017

Abstract

Acquisitive prescription ("verkrijgende verjaring") is a manner of property acquisition: somebody who has had the possession during a certain period of time of a proprietary right (right of ownership or an in rem right like usufruct), receives that right. The current Belgian legal framework concerning acquisitive prescription is rather complex and illogical. Moreover, recent case law of the European Court of Human Rights gave an important impulse to critical reflection on acquisitive prescription. The subject has an important practical relevance (e.g. sale of a good (e.g. a stolen vehicle) from a vendor, who afterwards appears not to be the owner; cohabitants or heirs become posessers of valuable goods (e.g. bonds) and discussions in reference to the action for revindication in seizure procedures). This research proposal aims to supply a coherent, clear and well-founded comparative law theory with the necessary (policy) recommendations via an in-depth analysis of acquisitive prescription with a thorough and critical analysis of its two constitutive conditions: possession and term. On the one hand, the research will critically analyze the current system of the acquisitive prescription, with a special focus on its justification, and on the other hand it will test its conformity with the national and international sources (principle of equality and protection of ownership) and its value of topicality ("actualiteitswaarde"). The central research question is: To what extent is the current legal framework concerning acquisitive prescription tenable (in the light of national and international evolutions) and which adjustments can be proposed?

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Francqui Chair 2012-2013 Prof. Simon Deakin. 01/10/2012 - 30/09/2013

Abstract

Proposed by the University, the Francqui Foundation each year awards two Francqui Chairs at the UAntwerp. These are intended to enable the invitation of a professor from another Belgian University or from abroad for a series of ten lessons. The Francqui Foundation pays the fee for these ten lessons directly to the holder of a Francqui Chair.

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Expertise sessions for the project of Private International Law. 30/04/2012 - 30/06/2012

Abstract

This project represents a formal service agreement between UA and on the other hand Kruispunt Migratie-Integratie vzw. UA provides Kruispunt Migratie-Integratie vzw research results mentioned in the title of the project under the conditions as stipulated in this contract.

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Group life insurances and matrimonial property law: a failed marriage? 01/01/2012 - 31/12/2012

Abstract

The main purpose of this KP BOF-project is to conduct fundamental, intradisciplinary research on the consequences of group life insurances on matrimonial property law. Notwithstanding the high practical relevance, the application of the Insurance Act causes uncertainty in legal practice due to its incompatibility with the principle of equality in the Constitution. This project aims to accessibilize the legal practice and to construct a clear, certain, workable, acceptable and coherent theory.

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Group life insurance: new challenges for the legislator? 01/01/2012 - 31/12/2012

Abstract

Group life insurance play a growing role in the second pension pillar, giving that they mostly foresee an additional income after retirement. The legislator has chosen to regulate group life insurance in the Wet Landverzekeringsovereenkomst (the Act on Insurance Law). Recent developments/regulations/judgments in other areas of the law have set this perspective under pressure. The goal of this project is to map the existing problems and to formulate concrete suggestions to the legislator on the base of scientific research.

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Opportunities and implications of the ratification by Belgium of the UNIDROIT '95 Convention on stolen and illegally exported cultural objects. 12/12/2011 - 12/10/2012

Abstract

This project represents a formal research agreement between UA and on the other hand the Flemish Public Service. UA provides the Flemish Public Service research results mentioned in the title of the project under the conditions as stipulated in this contract.

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Advice from the notary office initiative. Personal and patrimonial planning for problem children 16/08/2011 - 30/11/2011

Abstract

This project represents a formal service agreement between UA and on the other hand the Koning Boudewijnstichting. UA provides the Koning Boudewijnstichting research results mentioned in the title of the project under the conditions as stipulated in this contract.

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Private international law: the border between european and national rules 01/01/2011 - 31/12/2012

Abstract

The purpose of this project is to continue my research on the exact delimitation between European and national rules of private international law (PIL). This was the topic of my PhD thesis (2005). Since that time, questions concerning the relation between European and national rules have remained pertinent, even increasingly so. In the first place I would like to collect Belgian case law in which EU legislation on private international law is applied, and assemble this in a database. In the first phase it would be preferable to keep the database internal, and it can be made public at a later stage. In 2003 the Katholieke Universiteit Leuven had set up a website to make public Belgian case law in which European PIL rules were applied. At that time I was working as a teaching and research assistant at that University. The current Institute of Private International Law has however decided to no longer maintain the database, and to terminate the registration of the domain name. They are prepared to transfer the domain name to me. It seems desirable at this stage to update and expand the database. Belgium has no all-encompassing central database containing (published and unpublished) case law, while other countries do have such an instrument. The setting up of a database containing PIL case law will be useful for practicing lawyers and for academic researchers in Belgium and abroad. The addition of English summaries will make the case law accessible to a larger public. The database will then be able to contribute to the uniform interpretation of the European legal instruments: the process of making PIL rules uniform in the EU is undeniably linked to the correct and uniform application of those rules in practice (eg by courts). For the collection of the case law and the input in the database, it is necessary to call upon the assistance of job students. Besides the database, I would like to attend to a conference on PIL in April 2011 (and possibly also other conferences) and to buy books relevant for my research.

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Policy Research Centre for the equal opportunities policy. 01/01/2010 - 31/12/2011

Abstract

The main specific objective of the initiative is to provide scientific research Input and support for the equal opportunities policy development and implementation of the Flemish government by developing multidisciplinary expertise and research potential in the area of equal opportunities policy in Flanders in a more integrated way. Another specific objective is to create a documentation and information centre and a contact point which serves a wide circle of direct and indirect beneficiaries in the field of equal opportunities policy.

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The legal status of unborn human life. 01/10/2009 - 30/09/2011

Abstract

The legal status of unborn human life is uncertain and contested. This Ph.D. thesis aims at defining the legal status of unborn human life. Therefore this thesis will examine the current legal protection of human life from the moment of fertilisation until the moment of birth. In the sphere of this objective a thorough reflection on the concept of 'personhood' is also required.

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The legal and moral status of human substances, in particular organs and human tissues. 01/07/2009 - 30/06/2013

Abstract

Human bodily material, like blood, sperm, egg cells, organs and tissues, is very useful for therapeutic and research purposes. The goal of this project is to examine the legal and ethical statute of removed human bodily material, the pro's and con's of a commercialization of human bodily parts and to investigate the role of the state.

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Public/Private Crossovers in Contemporary Art Collections. 01/02/2009 - 31/12/2010

Abstract

Private collectors of contemporary art rather create their own legal structures to build, manage and transfer their collection than to seek synergy with public collections. Public authorities lack efficient tools so as to stimulate private collectors to create crossovers. Research into private and public tools regarding art collections will enable the creation of efficient crossovers.

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Building a better quality of life of people with dementia and their environment. 18/07/2008 - 30/11/2008

Abstract

With this project, the King Baudoin Foundation hopes to contribute to improving quality of life for dementia patients and their care-givers. It will do so by basing its work on the cultural images of dementia and on questions relating to patients' autonomy, relationships and dependency at different stages of dementia. Care and legal measures will be examined in greater detail. The aim of this part of the project is to report on the legal measures and to make recommendations.

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Project website

The medical-ethical-legal status of stem cells and stem cell research. 01/10/2007 - 14/09/2012

Abstract

The goal of this project is to analyze the conditions of access, quality and safety of stem cell research, from the perspective of ethical-legal principles of the autonomy of the person and the protection of the embryo, in interaction with the constant evolution of medicine.

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The legal status of unborn human life. 01/10/2007 - 30/09/2009

Abstract

The legal status of unborn human life is uncertain and contested. This Ph.D. thesis aims at defining the legal status of unborn human life. Therefore this thesis will examine the current legal protection of human life from the moment of fertilisation until the moment of birth. In the sphere of this objective a thorough reflection on the concept of 'personhood' is also required.

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Monitoring quality of end-of-life care in Flanders. (MELC-study) 01/09/2006 - 01/09/2010

Abstract

The strategic aims of the study are twofold. Firstly, the study aims to evaluate end-of-life care and end-of-life decisions in medical practice in Flanders, and to compare these findings with data collected in studies in the Netherlands. Secondly, the study aims to develop quality indicators of end-of-life care and end-of-life decisions, and to investigate possible monitoring systems.

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The legal status of the psychiatric patient and the Patients rights Act. 01/10/2005 - 30/09/2006

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Towards a modern European Family Law: the South-African example. 01/05/2005 - 31/12/2006

Abstract

The European institutions have no direct competence in the field of material family law. Yet, the existence of a European family law cannot be denied. At first sight, the content thereof is quite conservative, thus not encompassing modern evolutions in the formation of a-typical nuclear families. This research project examines the modernisation of European family law on the basis of instruments already available, in the light of comparable evolutions in South Africa.

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Research into case-law concerning poverty allowances (minimal income and supplementary and by local councils in Belgium). 01/01/2003 - 31/12/2003

Abstract

Analysis of judgements by labour tribunals concerning minimal income (federal) and supplementary aid (local councils) in Belgium. Yearly publication of report.

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Installation allowance 01/01/2003 - 31/12/2003

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