bluuebunny/crossref_metadata_2025 huggingface dataset:
Freeze-Out Transactions in Germany and the U.S.: A Comparative Analysis
Authors: Krebs Christian A.
Published: March 2019

A freeze-out is a transaction in which a controlling shareholder forces out the minority shareholders and compensates them in cash or stock. A successful freeze-out transaction marks the end of the exchange-traded life of a corporation—it is a “going private” transaction. A freeze-out is therefore the counterpart to an initial public offering. Whereas the latter leads to the public listing of a corporation and thus a multiplication of shareholders, the freeze-out transaction aims at reducing the number of shareholders of a corporation to one.
When in Europe: Customary International Law and EU Competence in the Sphere of External Action
Authors: Konstadinides Theodore
Published: March 2019

European Union law must be interpreted and its scope delimited, to the extent possible, consistent with the relevant rules of international law. Article 3(5) of the Treaty on European Union (TEU) provides that “the EU shall uphold and promote … the strict observance and the development of international law.” A similar legal commitment can be found in the constitutions of most EU Member States, which in some cases is about delegation of powers, whilst in others it concerns the achievement of global objectives. Article 3(5) of the TEU is also reminiscent of the judicial canon laid down by the United States Supreme Court inCharming Betsyregarding the affirmation of international norms by the Congress. TheCharming Betsydoctrine of statutory construction requires national legislation (an American statute) to be construed so as not to raise conflict with international law where possible.
The EU Emissions Trading Scheme and the Court of Justice: The “High Politics” of Indirectly Promoting Global Standards
Authors: Fahey Elaine
Published: March 2019

The European Union (EU) Emissions Trading Scheme (ETS) is a cornerstone of the European Union's policy to combat climate change and its key tool for the cost-effective reduction of industrial greenhouse gas emissions. Moreover, according to the European Commission, it is the first and biggest international scheme for the trading of greenhouse gas emission allowances, including sophisticated and far-reaching penalties. Notably, however, the scheme arose out of a failure at the international level to agree on global standards. When an amended directive included aviation under this scheme beginning in 2012, it ignited a global controversy that came before the Grand Chamber of the Court of Justice in December 2011. In its decision, the Court and Advocate General explicitly explain that the EU ETS regime arose because of the failure of the International Civil Aviation Organisation (ICAO) to evolve a global regulatory scheme. To some, the decision of the Court of Justice on the EU ETS represents a definitive view on the legality of the EU's ambitions to uphold high environmental standards and to compel others to uphold these standards also.
‘Targeted Touchdown’ and ‘Partial Liftoff’: Post-Crisis Dispute
Resolution in the OTC Derivatives Markets and the Challenge for
ISDA*
Authors: Biggins John
Published: March 2019

Since the 1980s, influential participants in the niche over-the-counter
(OTC) derivatives markets have sought to encourage contractual
standardization in the industry to mitigate the potential for unforeseen
legal interruptions and ensure the enforceability of OTC derivatives
contracts. The International Swaps and Derivatives Association (ISDA), a
trade association and standard-setter, has spearheaded this effort;
resulting in the creation and sustenance of a highly successful
transnational private regulatory regime (TPRER). Most notably, ISDA has
generated a standardized boilerplate contract for OTC derivatives, known as
the ‘ISDA Master Agreement’. However, the TPRER within which the ISDA Master
Agreement operates displays some intriguing features and paradoxes. Chief
amongst these paradoxes is that, while this TPRER appears at first glance to
be highly legalistic and formal, indications are that rates of formal
litigation between members of the regulatory regime have traditionally been
low relative to the size of the market (the total notional amount of OTC
derivatives contracts outstanding at the end of 2011 was estimated at US$648
trillion).
Home State Regulation of Environmental Human Rights Harms As Transnational Private Regulatory Governance*
Authors: Seck Sara L.
Published: March 2019

Home state mechanisms designed to address harms arising from overseas resource extraction have recently been considered in Canada. This paper will examine whether such mechanisms could be viewed as an example of transnational private regulatory governance, and the implications of doing so for our understanding of both public international law and transnational private regulatory governance. After first briefly unpacking the idea of transnational private regulatory governance, the paper will compare common understandings of the scope of home state jurisdiction to regulate transnational corporations under international human rights and international environmental law. Recent developments in Canadian law and policy culminating in the creation of a Corporate Social Responsibility (CSR) Counsellor for the international operations of the Canadian extractive industry will then be described. This Canadian experience will serve an example of home state-based transnational private regulatory governance.
Transnational Private Regulation and the Changing Media of Rules
Authors: Porter Tony
Published: March 2019

The growth of transnational private regulation has involved a great many types of changes, including changes in the types of actors that make rules, in the degree of formality of rules, and in the spatial boundaries of rules. One type of change that merits more focused attention is in the media of rules. Historically a major shift was from rules that were communicated orally, to rules that were inscribed in physical objects. Changes in these objects, from stone or clay to paper and print media were also consequential, enabling rules to be created, preserved and disseminated in new ways. This shift was closely associated with the growth of public authority and its accompanying artefacts such as written constitutions, official documents, and paper money. Today further technological changes in information and communications media are widely recognized as associated with structural transformations of all types of institutions. These technologies facilitate the use of networks and transnational supply chains by business. They stimulate the growth of global social movements and undermine state censorship. They lead to experiments with e-Government and threaten the business models of newspapers and the music industry. But what exactly is the significance of these technological changes for the creation, preservation and dissemination of rules, and how do these changes in the media of rules interact with the growth of transnational private regulation?
What is Terrorism?
Authors: Sinn Arndt , Safferling Christoph
Published: March 2019

The “war against terror” remains one of the most difficult challenges for criminal law, as it takes the rule of law to its constitutional limits. Eleven years after 9/11, we see that these events have led to modifications of the general structure of security laws worldwide and also in Germany. National laws have not only been extended to address modern phenotypes of terrorism and the financing of terrorism but have also been expanded to catch foreign and international organizations. Fighting terrorism can only be successful with global cooperation. The papers in this special issue were presented at the International Forum on Crime and Criminal Law in the Global Era in Beijing, and should thus be seen as part of the German-Chinese dialogue on criminal matters. As the question of how German legislation and jurisprudence react to the challenges connected to the fight against international terrorism stretch far beyond this dialogue, a special issue of the German Law Journal seems to be the perfect forum to address a wider global audience.
Criminalizing male circumcision? Case Note: Landgericht Cologne, Judgment of 7 May 2012 – No. 151 Ns 169/11
Authors: Fateh-Moghadam Bijan
Published: March 2019

On Thursday 19th of July 2012, just prior to the parliamentary summer holidays, the Deutscher Bundestag (German Parliament) passed a resolution based on a rather irritating motivation. The parliament intended to guarantee that “Jewish and Muslim religious life will be further possible in Germany.” The resolution itself consisted in only one sentence: The German Government is requested to provide until fall 2012 – in due consideration of the constitutionally protected legal positions of the well-being of the child, the right to bodily integrity, the right to religious freedom and the parental rights in education – draft legislation in order to safeguard that professionally performed male circumcision, without unnecessary pain, is generally lawful under German law. What had happened to provoke such extraordinary political action in defense of religious freedom? The resolution responds directly to a decision of the Landgericht (Court of Appeal) Cologne from 7 May 2012 which declared that male circumcision in children amounts to criminal battery, even if performed lege artis and with the consent of the parents unless there is a medical indication for the procedure. In doing so, the court followed a restrictive position within the German criminal law literature that has been advocating the criminalization of male
The Participation of the German Länder in Formulating German EU-policy
Authors: Suszycka-Jasch Magdalena , Jasch Hans-Christian
Published: March 2019

On the 30 June 2009 the German Federal Constitutional Court (Bundesverfassungsgericht, FCC) has passed its long-awaited decision on the compatibility of the Act approving the Treaty of Lisbon and the accompanying legislation with the Basic law (Grundgesetz). The FCC's decision according to which the ratification law is compatible with the Basic law was greeted with relief by many German and European policy makers. It has removed another obstacle for the adoption of the Treaty of Lisbon in the European Union (EU), which still has to be ratified by Ireland, Poland and the Czech Republic, though. But also Germany's ratification still depends on the amendment of the accompanying “Act Extending and Strengthening the Rights of the Bundestag and the Bundesrat in European Union Matters” (“Extending Act”) which the FCC has declared incompatible with the Basic law insofar as the legislature, Bundestag and Bundesrat, have not been accorded sufficient rights of participation in European law-making and treaty amendment procedures. The FCC has therefore ruled that the Federal Republic of Germany's instrument of ratification of the Treaty of Lisbon may not be deposited as long as the constitutionally required legal elaboration of the parliamentary rights of participation has not entered into force. This puts pressure on German law-makers to amend the accompanying “Extending Act” possibly before the referendum in Ireland and before German elections in autumn 2009.
Law and Development Today: The New Developmentalism
Authors: Sherman F. Charles
Published: March 2019

The purpose of this essay is to consider the significance ofnew developmentalismfor the field of law and development. New developmentalism refers to a theory and practice of development economics, which appears to have entered mainstream development thinking. Its core elements also seem to have been a factor in the dynamic economic growth that has occurred in a number of emerging economies. This trend is significant for the field of law and development because: (a) conventional economic development orthodoxies are seen to have shaped previous law and development movements; (b) these models and their corresponding law reform projects were arguably inadequately adapted to existing domestic circumstances; and (c) new developmentalism represents a departure from conventional development orthodoxies, as it necessitates both learning and adapting to local settings. Yet such a system also creates new challenges for law reformers and policymakers within the international development community (not to mention domestic reformers), and it remains unclear (if not doubtful) that new developmental states can be engineered by external actors and institutions.
Remarks at the Opening of the Symposium Celebrating the 10th Anniversary of the German Law Journal – German-American Lawyers' Association (DAJV)
Authors: Hirte Heribert
Published: March 2019

First and foremost, in the name of the German-American Lawyers' Association (DAJV) I wish to congratulate the German Law Journal on its 10th anniversary! The German Law Journal has contributed extensively to the reversion of the “one-way traffic” of the transfer of law, at least on some points, which typically flowed from the U.S.A. to Europe. I can still remember quite well that, at the time Germany gradually arose from the shadowy existence of an “emerging market” in the area of capital markets, time and again it was emphasized that German law was indeed compatible with a world market—if only it was available in the English language. The German Law Journal recognized this deficiency and has contributed significantly to the spread of awareness and understanding of German law abroad.
Restricting Freedom of Contract through Non-Discrimination Provisions? A Comparison of the Draft Common Frame of Reference (DCFR) and the German “General Equality Law”
Authors: Ebert Franz Christian , Pinkel Tobias
Published: March 2019

In recent years hardly any field of private law has given rise to the amount of debate that was provoked by the non-discrimination legislation adopted at the European level and, subsequently, by various Member States. In particular, the run-up and the adoption of the GermanAllgemeines Gleichbehandlungsgesetz(German General Equality Law, hereafter “AGG”) were subject to extensive deliberation. Numerous German private lawyers objected to the perceived dilution of freedom of contract that they felt would result from the comprehensive private law protection against discrimination.
Risk Regulation Approach to EU Policy against Terrorism in the light of the ECJ / CFI jurisprudence
Authors: Simoncini Marta
Published: March 2019

In order to get a better understanding of the current relationship between liberty and security in the European Union (EU), the essay adopts a new approach to counterterrorism matters, namely by availing itself of Administrative Law, and focuses on a specific case study, the European Community's (EC) regulations on freezing the assets of the terrorists as well as those of the people and entities associated with the terror network and blacklisting the identified subjects.
The Basic Law at 60 – Human Dignity and the Culture of Republicanism
Authors: Mahlmann Matthias
Published: March 2019

The German Basic Law is a resilient constitution. It has proved able to cope with both the new beginning of the constitutional tradition in Germany after the cataclysm of 1945 and German reunification after the fall of the Berlin Wall in 1989. To be sure, there is reason for some critical reflection concerning concrete questions and even fundamental issues—not the least of which is the question whether German reunification should have been marked by a process of constitutional self-reflection and renewal beyond what has been done. All in all, however, the Basic Law is, in historical perspective, a remarkable success. Therefore, it is not surprising that it has gained much international attention. Some aspects of the Basic Law have even become a kind of attractive export article not accounted for in Germany's foreign trade balance, but nevertheless of considerable importance.
Determination of the Creditors and the Context of the Restructuring Project in Turkish Restructuring Law
Authors: Akil Cenk
Published: March 2019

The enforcement and bankruptcy system in Turkey is principally regulated by the Code of Enforcement and Bankruptcy (CEB), Act Number 2004, which came into force on 4 September 1932. This Code mainly originates from the Swiss Federal Law on Debt Collection and Bankruptcy. During 2003 and 2004, several amendments were made to the CEB by Law Number 4949 and by Law Number 5092.
The Lisbon Judgment of the German Federal Constitutional Court – New Guidance on the Limits of European Integration?
Authors: Steinbach Armin
Published: March 2019

The German Federal Constitutional Court (FCC) has found that there are no constitutional objections against the Lisbon Treaty. At the same time, the FCC imposed limitations to future integration by identifying a number of state functions that are non-amenable to integration and which have to be retained at the national level. This article examines the scope and content of these core competencies. It also discusses to what extent the criteria used by the FCC for the determination of core competencies might reflect a European-wide standard for the determination of limits to the transfer of competencies to the European Union. The article concludes that the judgment clarifies the limitations of the transfer of competencies, even though the criteria used by the FCC cannot claim to produce the set of inalienable sovereign powers that were recognized as such throughout the Union.
Review Essay– Erich K. Before the Law: Reflections on Degenhardt's Study of Erich Kaufmann - Book Review of Frank Degenhardt, Zwischen Machtstaat und Völkerbund. Erich Kaufmann (1880–1972). Baden-Baden: Nomos, 2008, pp. 244. Price: 54,- €
Authors: Paz Reut Yael
Published: March 2019

This article is a review-essay of Frank Degenhardt's Zwischen Machtstaat und Völkerbund. Erich Kaufmann (1880–1972), published in 2008. While this review discusses Degenhardt's achievements, it pays much attention to the different academic contexts this research implies: On the one hand this review-essay contextualizes Degenhartds' own research endeavors, and discusses howZwischen Machtstaat und Völkerbundis part and parcel of the growing historical analysis in international law both in Germany and elsewhere. On the other hand, it pays attention to Erich Kaufmann's historical context both on a personal and professional level. Furthermore, this review-essay examines Degenhardt's book dedicated to Kaufmann's contributions to international law in light of Kaufmanns' Jewish German identity that was a lifelongLeitmotivreflected both in his theoretical and practical work.
Risk in Law – Law in Risk: The 50th Annual Meeting of Public Law Assistants in Greifswald, 23–26 February 2010
Authors: Kirchner Stefan , Recker Sebastian
Published: March 2019

The 50th Assistententagung, the annual meeting of public law assistants, convened this year in Greifswald. Greifswald is not only home to academic institutions, but also has a long legal history and is the host city of both the State Constitutional Court and the Highest Court of Administrative Law in the state of Mecklenburg-Western Pomerania. The meeting's aim was to facilitate an exchange between postdoctoral and doctoral candidates on questions relating to public law. Until 1959, the assistants in public law, who are usually conducting doctoral or post-doctoral studies, had been admitted to the annual meeting of public law professors. Assistants could benefit from professors' wealth of experience, including how to structure lectures and how to answer difficult questions, through participation in the Public Law Professors' Meeting. With the exclusion of non-professors from the annual Staatsrechtslehrertagung in the 1950s, assistants no longer had a forum to learn how to perform as academics. This exclusion resulted in the beginning of the annual meeting of German-speaking public law assistants in 1961 in Hamburg, to which not only postdoctoral candidates, but also doctoral candidates were welcomed. The meeting served as both a training course and an opportunity for academic exchange. And it was therefore in accordance with tradition that Jörg Scharrer, who hosted the first panel, had to ask the dean of the law faculty at Greifswald University, Prof. Dr. Axel Beater, to leave the building before opening the first session.
Book Reviews, The Common Law Tort of Defamation, and the Suppression of Scholarly Debate
Authors: Sutherland Kate
Published: March 2019

Professor Joseph Weiler will soon stand trial for criminal libel in France for refusing to remove a book review from a website associated with an academic journal for which he serves as editor. His case has disturbing implications for all those who write, edit, and publish critical scholarly work. In this article, I explore those implications for Canadian scholars at home and as members of a global scholarly community. I assess the likelihood of success of a similar complaint under Canadian defamation law, and I consider the impact of libel chill and libel tourism. I conclude that although the defendant in such a case would have a good chance of prevailing under Canadian law through the defense of fair comment, a threat to academic freedom remains that requires action on the part of individuals and institutions committed to its preservation and enhancement.
Understanding Market Access: Exploring the Economic Rationality of Different Conceptions of Free Movement Law
Authors: Davies Gareth
Published: March 2019

There has been much discussion of the proper scope of the European Treaty articles on free movement. Central to this discussion has been a debate about the best concept around which to build free movement law, and in this debate “discrimination” has been opposed to “market access.” It is, however, the central thesis of this paper that the opposition is largely false. In general, measures which affect all market actors equally do not, as a matter of economic fact, impede market access. The non-discriminatory measures which impede market access, which some have felt it so important to bring within the Treaty, are therefore more mythical than real. This argument is made with reference to competition law and theory concerning barriers to market entry.
EULEX Kosovo: The Difficult Deployment and Challenging Implementation of the Most Comprehensive Civilian EU Operation to Date
Authors: Spernbauer Martina
Published: March 2019

While the European Union (EU) has been finding itself increasingly involved in providing security in its “near abroad,” the proposal of a “Stabilisation and Association Process for Countries of South-Eastern Europe” has marked the commencement of a nearly all-encompassing commitment to progress in the countries of the Western Balkans. In this context, Kosovo—for which the European perspective of the Western Balkans has been declared open—provides a text book example covering all aspects of external assistance as well as security and defense policies. Among the latter, the European Union Rule of Law Mission in the territory of Kosovo (EULEX Kosovo) is indeed characterized by a number of extraordinary factors and circumstances. It is not only EULEX Kosovo's unparalleled European and local staff size or its partly executive mandate that set this EU mission apart from other civilian missions of the Common Security and Defense Policy (CSDP) which have thus far been deployed to the Western Balkans. Unsurprisingly, the complexity of the mission has generated difficulty in comprehending its deployment, mandate and implementation. Yet, against the backdrop of the 2003 Security Strategy which makes the credibility of the EU's foreign policy dependent on its achievements in the Balkans, a clear understanding of EULEX Kosovo appears paramount.
Kosovar Constitutional Court's Jurisdiction: Searching for Strengths and Weaknesses
Authors: Doli Dren , Korenica Fisnik
Published: March 2019

Having gone through an international process on status settlement, in the aftermath of the proclamation of independence, the Kosovo Assembly adopted a Constitution and a range of essential laws. One of the very basic laws adopted in the aftermath of independence is the Law on the Constitutional Court. The Ahtisaari Commission had given a singular importance to the latter, having seen the Kosovan Constitutional Court as one of the most important guarantors of democracy in constitutional terms. In an Ahtisaarian view, the Kosovan Constitutional Court is,inter alia, thought of as a guarantor of the ethnic communities' constitutional rights. As a result, the law concerned along with the Constitution of Kosovo determined the organization and functioning of the Kosovo Constitutional Court.
What the ICJ's Decision Means for Kosovars
Authors: Moliterno James E.
Published: March 2019

The International Court of Justice's advisory opinion favoring the legal status of the Kosovar declaration of independence came as an exhilarating surprise to many in Kosovo. The spirit of suspicion and negative perception of most internationals (US citizens being a notable but not exclusive exception) meant that a favorable ruling from an international court was unexpected.
Progressive Eras, Periods of Reaction, and Constitutional Change
Authors: Nicol Danny
Published: March 2019

This article argues that “political herding” plays a crucial role in driving and shaping constitutional change. It links the prevalence of political herding to a psychological phenomenon, “social influence.” It goes on to argue that constitutional change is often driven by the desire for certain substantive policies, which in turn are determined by whether, in a particular epoch, the political community is herding in a progressive or reactionary direction. Contending that the general phenomenon whereby political communities go through recurrent swings to the left or to the right has been neglected by scholars, this essay aims to give this phenomenon the centrality it merits in relation to the evolution of the British constitution. Accordingly it considers the 1906 Liberal government, the 1945 Labour government and the lengthy succession of post-1979 neoliberal governments, analyzing how substantive progressive and reactionary programs led to constitutional change. Finally this article considers the legitimacy both of political herding itself, and of political herding's impact on constitutional change.
The Gordian Knot of European Union Competence: Commercial Aspects of Intellectual Property After the Judgment in Case C-414/11Daiichi Sankyo
Authors: Gotsova Boryana
Published: March 2019

The division of external competences between the European Union and the Member States is a long-standing object of contention for constitutional and practical reasons. The competence to negotiate and conclude international agreements in a given area has as many highly political implications as concrete policy-making ones. This tension is well illustrated by the field of the commercial aspects of intellectual property. Community, and later Union, competence over this area was established only gradually. After multiple Treaty revisions and legal disputes over competence, the Treaty of Lisbon now lists the field as one of the main elements of the Union's Common Commercial Policy (CCP). The CCP itself is one of the founding policies, dating back to the European Economic Community. It structures the Union's trade relations with third countries, encompassing bilateral and multilateral trade and tariff agreements, as well as unilateral trade defense measures such as anti-dumping and anti-subsidy instruments. Today, the Treaty of Lisbon expressly provides for exclusive Union competence over the CCP, codifying the case law of the Court of Justice.
The Irish “Bail-Out” and Cuts to Social Protection Spending— the Case for a Right to a Subsistence Minimum in EU Law
Authors: O'Gorman Roderic
Published: March 2019

As part of the 2010 EU/IMF economic adjustment program or “bail-out,” the Irish Government was required to undertake billions of euros in cuts to social protection spending over a three-year period. These have been implemented in subsequent budgets, resulting in increased levels of poverty and social exclusion. In light of these impacts on social rights in Ireland and other Member States, this article argues that the outcome of such Union legislative measures should be subject to some degree of rights-based scrutiny. It examines how, in theHartz IVdecision, the German Constitutional Court ruled that an attempt by the German Government to pass legislation that significantly cut a range of social welfare benefits breached the fundamental right to a subsistence minimum under the German Basic Law. Drawing inspiration from the approach of the German Constitutional Court, the article argues that the two elements of the German Basic Law which grounded that decision—the right to human dignity (Article 1(1)) and the social state principle (Article 20(1))—are both present within the Union Treaties as a result of changes occasioned by the Lisbon Treaty. The article advocates that the European Court of Justice should discover such a right within Union law and use it as a tool to analyze the impact of future cuts mandated by Union institutions on the economically disadvantaged.
What Red Lines, If Any, Do the Lisbon Judgments of European Constitutional Courts Draw for Future EU Integration?
Authors: Theil Stefan
Published: March 2019

The lingering European financial crisis continues to threaten the Eurozone and, in the opinion of German Chancellor Angela Merkel, the very survival of the European idea. With this apocalyptic rhetoric, it is easily forgotten that only nine years earlier Europe overcame a predicament that was, at the time, equally described as the most challenging in its history. Two failed referendums in Member States of the European Union (Member States)—namely, in France and the Netherlands—stopped the Treaty establishing a Constitution for Europe (Constitutional Treaty) in its tracks and led to an extended “period of reflection” for Europe's leaders. From this emerged a reboot of the Constitutional Treaty, now dubbed the Treaty of Lisbon, with few substantial changes, but more success throughout the ratification procedures. The final hurdle presented itself in the form of institutionally strong Constitutional Courts (CC) and Tribunals (CT) of the European Member States. Of these, the following were at one time or another seized with complaints against the ratification of the Lisbon Treaty: The AustrianVerfassungsgerichtshof(Austrian CC), the Belgian CC, theÚstavní soud České republiky(Czech CC), the FrenchConseil Constitutionnel(French CC), the GermanBundesverfassungsgericht(German CC), the Hungarian CC, theLatvijas Republikas Satversmes tiesa(Latvian CC), the PolishTrybunał Konstytucyjny(Polish CT), and theTribunal Constitucional de España(Spanish CT).
Conflicting Rules of Recognition: UN Security Council Resolution 1244 or the Constitution of the Republic of Kosovo
Authors: Muharremi Robert
Published: March 2019

Kosovo's declaration of independence in 2008 and the United Nation's claim that UN Security Council Resolution 1244 (1999) (“Resolution 1244”) remains in effect have resulted in the unique case of two competing legal systems, both of which claim legitimacy and supremacy in Kosovo. While Kosovar authorities claim to exercise exclusive and sovereign authority over Kosovo based on the Constitution of the Republic of Kosovo, the UN, acting through the United Nations Interim Administration Mission in Kosovo (“UNMIK”), maintains that Resolution 1244 vests administrative authority over Kosovo in the Special Representative of the Secretary-General (“SRSG”). This conflict is best exemplified in a number of judgments rendered by the Special Chamber of the Supreme Court of Kosovo on Privatization Agency Related Matters (“Special Chamber”) and the Constitutional Court of the Republic of Kosovo. The purpose of this Article is to illustrate the problems that have emerged in the process of the creation of a new legal system in Kosovo and the emergence of a new rule of recognition which is reflected in conflicting judgments of the Special Chamber and the Constitutional Court.
Between Individual Justice and Mass Claims Proceedings: Property Restitution for Victims of Nazi Persecution in Post-Reunification Germany
Authors: Dostal Caroline , Strauss Anke , von Carlowitz Leopold
Published: March 2019

German history of the twentieth century offers a rich resource of precedent for property restitution and compensation programs. The Federal Republic of Germany instituted different mass claims proceedings shaped to “reverse” or mitigate violations of property rights that took place as part of (a) the persecutions by the Nazi regime from 1933 to 1945, (b) the Land Reform (Bodenreform) during the Soviet occupation of East German territories from 1945 to 1949, and (c) the nationalization activities of the German Democratic Republic (GDR) from 1949 to 1990. Except for cases under the Land Reform in the Soviet zone, restitution preceded compensation as the main means of redress. All reparation schemes involved specific compensation arrangements including elaborate property evaluation systems.
Incomplete Data Protection Law
Authors: Zhang Kunbei
Published: March 2019

The European legal system governing data protection issues is widely regarded as an adequate blueprint for late developers to follow. According to this position, host countries will benefit from receiving the ready-made data protection law because it has already gone through a process of trial and error in Europe. For example, China follows the traditional civil law measures on data protection, such as contractual and tort liability. No Chinese legislation deals specifically with the right to protection of personal data. In China, researchers paid attention to the European legal system, which is regarded as the milestone for data protection. Some vigorously suggest that China should quickly move to enact data protection law based on the model provided by European law.

When Chinese researchers strongly promote the European legal system over data protection issues, they send an underlying message that the quality of European laws is good enough to sufficiently deter violations: Individuals would be prohibited from carrying out harmful actions as soon as the expected law is transplanted to China. From a Chinese perspective, our country could quickly move to enact a similar law following the tone of Europe in order to enhance the efficiency of data protection. But is this a compelling position? Will European data protection laws indeed regulate unambiguously and prospectively? Will European data protection laws provide clear guidance to Chinese judges for resolving data protection-related cases? And will the court-enforced laws sufficiently solve the broad spectrum of problems on data use? Understanding the European enforcement mechanism covering data protection issues, and thereby assessing its efficacy on deterrence, is vital to answering these questions.
“It's the Autonomy, Stupid!” A Modest Defense ofOpinion 2/13on EU Accession to the ECHR, and the Way Forward
Authors: Halberstam Daniel
Published: March 2019

The Court of Justice of the European Union has arrived! Gone are the days of hagiography, when in the eyes of the academy and informed observers the Court could do no wrong. The pendulum has finally swung the other way. The judicial darling, if there is one today, is Strasbourg, not Luxembourg. Not hours had passed before the Court's 258-paragraph longOpinion 2/13on the Draft Agreement on EU Accession to the European Convention on Human Rights was condemned as “exceptionally poor.” Critical voices have mounted steadily ever since, leading to nothing short of widespread “outrage.”
The EU's Accession to the ECHR: The Dream Becomes a Nightmare
Authors: Peers Steve
Published: March 2019

Just before Christmas 2014, the Court of Justice of the European Union (CJEU or the Court) gave its long-awaited ruling on the European Union's accession to the European Convention on Human Rights (ECHR). This ruling, Opinion 2/13, is a complex judgment that raises many legal questions. This case comment sets out: A summary of the ruling; an assessment of the consequences of the ruling; and an initial critique of the Court's reasoning. On the latter point, the Court's ruling is fundamentally flawed. In short, the Court is seeking to protect the basic elements of EU law by disregarding the fundamental values upon which the Union was founded.
Corruption: Uncovering the Price of Normative Morality and the Value of Ethics
Authors: Rauen Verena
Published: March 2019

Corruption should be understood as illustrative of an ethical problem that runs deeper than specific immoral actions. This Article sees corruption as an unethical exchange, a view that can shed light on the economic structure of normative morality (as distinguished from ethics which is the theoretical field that underlies normative morality)—a structure that enables the possibility of exchanging moral values against marketable prices in the first place. To go beyond normative morality, this Article will discuss two profound philosophical concepts and their relation to corruption: (1) a non-economic justice as founded by Aristotle's principle ofépieikeia(equity), and (2) Levinas' notion of theThirdwith the ethical responsibility that is connected to it. In addition, the discussion of the Third will be informed by philosophical theories of gift exchange as proposed by, among others, Marcel Hénaff, who examined the connections between gift exchange, monetary exchanges and corruption. Based on this, a way of thinking about the suspension between ethics and corruption is developed that avoids falling back into the logic of economic exchange which is constitutive for corruption. Instead, an ethical perspective is suggested as the fundamental ability to adequately balance universal normative claims with the individual case. This kind of just balancing opens up new spaces of reflection to confront corruption.
The Sound of One Hand Clapping: Unilateral Declarations of Independence in International Law
Authors: Kassoti Eva
Published: March 2019

In light of the uncertainty surrounding recent unilateral declarations of independence, this Article purports to re-visit the question of their legal nature under international law. The Article shows that the International Court of Justice's (ICJ) judgment in the Kosovo advisory opinion (hereafter referred to as the Kosovo Opinion) is of little assistance in establishing whether and to what extent such declarations fall within the ambit of international law. The Article proceeds to examine claims that unilateral declarations of independence are regulated—entirely or partly—by international law and argues that these claims are ill-founded on multiple grounds. The Article asserts that international law is legally neutral towards the claims—a proposition in accord with both the factual nature of the process of state formation in international law and with the relevant practice.
Legal Limits of a Permissible Criticism of Religion
Authors: Hillgruber Christian
Published: March 2019

In its present state, Article 166 StGB does not satisfactorily achieve its purpose of ensuring the effective enforcement of the ban on insulting of religious beliefs and religious communities. This is largely because of the difficulty satisfying the “disturbance of the public peace” requirement. In this paper, I first refer to the legal limits of the freedom of opinion in consideration of religion and then argue with regard to Article 166 StGB that the disturbance of peace criterion ought to be eliminated because abuse of religion, in itself, already disturbs the public peace.
Of General Principles and Trojan Horses — Procedural Due Process in Immigration Proceedings under EU Law
Authors: Bast Jürgen
Published: March 2019

The present paper concerns procedural guarantees in immigration proceedings, thus addressing the broader question of the role of the general principles of EU law in respect of administrative decision-making. The main assertion is that certain requirements of procedural due process are recognized in EU law as fundamental rights. They must therefore be observed by Member State authorities when decisions significantly affecting the legal position of a person are taken, provided that the decision is at least partly determined by EU law. The relevant immigration proceedings involve measures related to the termination of residence as well as decisions related to denial or loss of a particular legal status. In effect, the actual scope of application of the EU's administrative fundamental rights is determined by the actual scope of activity of the European legislator. The author concludes that even a relatively ‘shallow’ harmonization of laws can lead to a ‘deep’ reshaping of the domestic legal order, by becoming a Trojan Horse for fundamental rights heretofore alien to some national immigration regimes.
Review Essay:“Lost In Disordered Clouds: Transnational Legal Pluralism and the Regulation of Global Asymmetries” - Mireille Delmas-Marty'sOrdering Pluralism(2009)
Authors: Hartmann Moritz
Published: March 2019

Written in a transitional period between the two World Wars and taking place during the Austro-Hungarian monarchy's last days before World War I, Austrian author Robert Musil's novel, “The Man Without Qualities” considers the societal need of preserving order in times of political disorder by tracing the story of Ulrich, the “man without qualities”. Claiming that “if all that high-speed business doesn't suit us, let's do something else!”, the novel's main character emphasizes the emerging challenge of social cohesion in times of political transformation: between the collisions of public power and private autonomy; a nation-state past and an international future; and collective action and individual capacity.
The Right to Food and Buyer Power
Authors: Ganesh Aravind R.
Published: March 2019

Modern global food supply chains are characterized by extremely high levels of concentration in the middle of those chains. This paper argues that such concentration leads to excessive buyer power, which harms the consumers and food producers at the ends of the supply chains. It also argues that the harms suffered by farmers are serious enough as to constitute violations of the international human right to food, as expressed in the Universal Declaration of Human Rights and more specifically, in the International Covenant on Economic, Social and Cultural Rights. World competition law regimes cannot ignore these human rights imperatives. To a certain extent, these imperatives can be accommodated under existing consumerist competition law theories by the interpretive mechanism of conform-interpretation. However, when one comprehends the truly global scale of modern food supply chains, it becomes obvious that conform-interpretation alone will not suffice. Instead, the protection of a minimum level of producer welfare congruent to those producers’ right to a minimum adequate level of food must find a place among the aims of any credible theory of competition law. Moreover, the same globalized nature of these food supply chains means that current doctrines of extraterritorial jurisdiction of competition control have also to be revised.
Cover Me: The Economy Is on Fire (The German Pfandbrief)
Authors: Quirk Patrick
Published: March 2019

This article examines the German Pfandbrief (“covered bond”) as an example of the banking practice of “originate to hold” by which mortgage debts are retained on the balance sheet of the originator and not sold on to a third party such as an investor or hedge fund. The global financial crisis (GFC) of 2008-2009 will be forever linked to the process known as “securitization” and the distribution of mortgage-backed securities throughout willing and later remorseful financial markets. But this is not the only model. As a member of the Executive Board of the European Central Bank (ECB) noted in June of 2008, “it may be worth recalling that this [originate to distribute model] is not the way banks have historically done business. Under the traditional—perhaps, I should say secular—‘originate to hold’ business model, banks extend loans to firms and households and hold them in their balance sheets until they mature or are paid off.”
The Appeal of the Project of Global Constitutionalism to Public International Lawyers
Authors: Schwöbel Christine
Published: March 2019

Global constitutionalism, an idea neither necessarily rooted in nor emerging specifically from international law, has captured the imagination of public international lawyers. Rather than adding to the plethora of suggestions of what a global constitution would and should look like, this article is aboutwhyinternational lawyers are interested in this idea. The literature so far has largely omitted a stocktaking of what it is that is so appealing about constitutionalism and who is particularly partial to it. When discussing global constitutionalism, international lawyers commonly assume one of two orientations: either a normative orientation (this is the type of constitutionalism we should have) or a descriptive orientation (this is the type of constitutionalism we already have). The former mostly concerns visions for “a global constitution” while the latter often concerns ideas of the process that will at some point culminate in “a global constitution;” this process is commonly referred to as “constitutionalization.” The recent co-authored book by Jan Klabbers, Anne Peters and Geir Ulfstein,The Constitutionalization of International Law, sets out to go further. It aims to see “what a constitutional international legal order could look like.” In a sense, they have therefore adopted a third orientation: one that takes the descriptive case of constitutionalism as a given and theorizes about further normative aspects in regard to the international legal order.
Old Weimar Meets New Political Economy: Democratic Representation in the Party State
Authors: Towfigh Emanuel
Published: March 2019

One of the prominent questions surrounding Weimar Theory of the State was that of the significance and influence of the political parties within the state. From the perspective of constitutional law, parties were as undesirable as they were an “inescapable” fact of modern statehood. They appeared to be an absolutely necessary consequence of the emancipation of all classes and social strata: Legitimation of state rule was no longer conceivable merely as a natural rule from above; on the other hand, there was no longer a unified bourgeoisie, and it thus seemed impossible for the political whole to be represented by people who felt beholden exclusively to the common weal. The homogeneous “people” had become a heterogeneous “mass.” The parties seemed to be a necessity, on the one hand, for active citizens to articulate themselves in the political system and, on the other hand, for state unity not to be torn apart by the power of a plurality of interests leaning in many different directions. Parties could therefore be conceived of as aprerequisitefor state organisation: The idea of the “party state” was born. One important protagonist in the discussion on the status of parties within the state structure was the constitutional legal scholar Gerhard Leibholz (1901–1982). In Weimar times, he was the most prominent representative of party state theory (Parteienstaatslehre), and as someone who “had somehow fallen between the eras,” he also actively shaped the party state of the Bonn Republic for over twenty years (1951–1971), as a judge at the Federal Constitutional Court (Bundesverfassungsgericht), by significantly influencing legislation on parliamentary, party, and electoral law. His persona was therefore a particularly important bridging link between the Weimar Republic and the Federal Republic of Germany, and even today, his theses are highly topical: “Beyond all eras, Gerhard Leibholz stands for the great tradition of German constitutional theory.”