bluuebunny/crossref_metadata_2025 huggingface dataset:
Selected problems concerning formation of a holding SE (societas europaea)
Authors: Oplustil Krzysztof
Published: March 2019

Formation of a holding SE is one of the four ways of establishing a European Company (societas europaea- ‘SE') as regulated in the Council Regulation No 2157/2001 on the Statute for a European Company (cited below: SE-Reg.). It is also an original way of European company law to create a joint stock company. It's true that companies are making use of the holding structure in order to combine their economic potentials and to create international groups of enterprises. But, as it was in the case of the formation of theAventis S.A., the holding structures usually come into existence by means of an increase of the subscribed capital in an existing company. The new shares are issued to the shareholders of another company who pay for it with the shares of their company. The operation results in formation of a holding structure in which the company that increased its capital, becomes a holding company dominating a company or companies the shares of which were contributed. The formation of a holding SE is guided by the similar idea: an exchange of the shares of national private or public limited liability companies into the shares of a European Company. However, in contrast to the Aventis like-cases, the dominant company, i.e. the SE, does not exist yet but has to be created by the companies according to the provisions of the SE-Regulation. This fact as well as many legal gaps existing in the scanty regulation of holding formation and the necessity to apply both the provisions of European and national law concomitantly may lead to many legal problems some of which will be presented below.
Arbitration in Germany: SchiedsVZ Journal SchiedsVZ Journal Promotes Arbitration in Germany
Authors: Risse Jörg
Published: March 2019

Business disputes, especially those with an international context, are often decided by an arbitral tribunal. As of January 1, 1998, the Federal Republic of Germany has adopted the UNCITRAL Model Law for domestic and international arbitrations taking place in Germany. Consequently, German parties have increasingly chosen arbitration as a means of dispute resolution. Moreover, international parties are also discovering Germany as a suitable place for arbitration. The reason for this trend is not only the acceptance of the well-known and arbitration-friendly Model Law. Germany as the designated place of arbitration compares favourably with its international competitors given its very efficient court system that willingly supports arbitral tribunals, if required. Furthermore, a large number of polyglot German lawyers who are well-versed in the laws of foreign jurisdictions are qualified to conduct arbitral proceedings at a high standard for – compared to their Anglo-Saxon competitors – a relatively low price.
From the Hammock onto the Trampoline
Authors: Graser Alexander
Published: March 2019

For a long time now the German labor market has been deep in the throes of a crisis. The search for ways out has become the leading topic of political debate, at the latest since the election year 2002, with the main emphasis centering round concepts for activation programs. These concepts have been under international academic discussion for several years. In some countries they have meanwhile been put into practice, for instance within the scope of the sweeping welfare reform carried out in the United States (U.S.) in the mid-nineties under the slogan “from welfare to work”.
The Legal Profession in Europe: Achievements, Challenges and Chances
Authors: Hellwig Hans-Jürgen
Published: March 2019

First of all I want to express my deep gratitude for having been given the honour to speak to you today. A lawyer from Germany addressing the 50th birthday celebration of the Nederlandse Orde van Advocaten - that would have been inconceivable back in 1952 when the Dutch Bar was founded. This inconceivable idea has become reality thanks to the rule of law. After all, the rule of law has been the fundament on which the treaties establishing the European Union of today have been based. Incidentally, the first such treaty, the European Coal and Steel Community Treaty dates of the same year 1952. We all, and in particular we foreign lawyers, should pay tribute to Hugo de Groot (Hugo Grotius), this magnificent Dutch lawyer, who centuries ago has laid the theoretical bases therefor.
AALS Annual Convention Plenary Panel: Impact of Globalization on Human Rights – Globalization and Human Rights
Authors: Wald Judge Patricia
Published: March 2019

I am going to discuss three aspects of globalization that have an impact on human rights. The first is the greater knowledge around the world about what is happening in far away places that has resulted from the advances in communications technology and in the mobility, if not of masses of people, of influential people, including journalists.
AALS Annual Convention Plenary Panel: Impact of Globalization on Human Rights
Authors: Neier Aryeh
Published: March 2019

There are various ways in which globalization can and does promote human rights. I want to focus on one of the ways in which globalization, because of the way it is managed by the most highly developed countries, has a very deleterious impact on human rights. Highly developed countries have managed globalization in a number of ways such that it has increased wealth disparities between the center and the periphery and the effect has been to heighten resentment for the center from the periphery. Unfortunately, that resentment sometimes manifests itself in the rejection of what are seen as Western values, including human rights. In fact, a number of leaders of countries on the periphery find it convenient to manipulate public opinion in order to foster hostility towards the West and in the process, hostility towards efforts to improve their human rights practices.
Towards the Definitive Status of the Charter of Fundamental Rights of the European Union: Political Document or Legally Binding Text?
Authors: Brand Michiel
Published: March 2019

At the Nice summit in December 2000, we witnessed the solemn proclamation of the Charter of Fundamental Rights of the European Union, which can be seen as the remarkable product of a revolutionary process. The Convention that drafted the Charter had adopted the approach ‘as if’ it were to be incorporated into the European Treaties. However, the question as to the final status of the Charter had not yet been decided when it was proclaimed. Instead, the issue was placed on the post-Nice and post-Laeken agenda and is currently being discussed in the Convention on the future of Europe.
The Use of the Shell of a Limited Liability Company
Authors: Veil Ruediger
Published: March 2019

There are four stages leading up to the creation of a limited liability company (GmbH). The founders agree upon the memorandum and articles (1), appoint a manager (2) and pay in the capital contribution (3). They must then notify the relevant District Court (Registergericht) in order to register the company in the Commercial Register (Handelsregister) (4). This notification must include a confirmation from the manager that the requisite minimum proportion of the proprietor's capital contributions has been paid in and is freely available for his or her use.
Mentally Retarded Offenders and the Death Penalty – The Latest Supreme Court Ruling and Possible European Influences
Authors: Eidam Lutz
Published: March 2019

The legal term “mental retardation” can be a life-saver since the summer of 2002. The possibility that had been announced in an earlier decision by the U.S. Supreme Court finally came true: The Court decided in a 6–3 vote that the Constitution of the United States bars the execution of mentally retarded offenders. With its “landmark death penalty ruling,” as it was called by the New York Times, the Court saved the life of Mr. Atkins, a man with an I.Q. of 59 who was convicted of committing murder and robbery at the age of 18. Empirical estimates show that this decision could move 200 or more people off death row. Unfortunately, the ruling is too late for at least 44 mentally retarded inmates who have been executed since 1976.
The School of German Law in Cracow Celebrates Its 5th Anniversary
Authors: Oplustil Krzysztof
Published: March 2019

The School of German Law at the Jagellonian University in Cracow was established in 1997 as joint academic undertaking of the Law Faculties of the three Universities Ruprecht Karls- University (Heidelberg, Germany), Johannes Gutenberg-University (Mainz, Germany) and Jagellonian University (Cracow, Poland). The initiators and first directors of the School were Professor Kazimierz Lankosz (Cracow), Professor Horst Konzen (Mainz), and Professor Peter Hommelhoff (Heidelberg). The 5th anniversary of the School in 2002 provides a good opportunity to sum up the activity of the School until now and to ventilate some thoughts on the future plans for this innovative undertaking, which already had proven to have gone well beyond its original boundaries.
The Principle of Democracy: Watered Down by the Federal Constitutional Court
Authors: Becker Florian
Published: March 2019

For historic reasons, the parliamentary legislator of North-Rhine-Westphalia assigned important public responsibilities concerning water supply and distribution in the areas of the rivers Lippe and Emscher to the public-law bodies Lippeverband and Emschergenossenschaft. By law the compulsory members of theses bodies are the Land (federal state) North-Rhine-Westphalia, the municipalities situated in the respective territories, as well as private companies involved with water distribution or usage as well as companies profiting from the bodies’ work or making it more difficult. In 1990 the organizational structure of the two bodies was reformed and participation rights of the respective work forces were introduced. They were granted the right to name representatives to the bodies’ supervisory boards (councils) and the boards of directors, but not for the most powerful organs, the assemblies of the bodies’ members.
ICC Case Simulation Exercise: Prosecutor v Five Pilots from Blueland and Whiteland
Authors: Goldmann Matthias , Schneider Cornelia
Published: March 2019

During the process of the establishment of the International Criminal Court (ICC), a voluminous set of rules was elaborated to ensure that the Court will become an effective instrument for the enforcement of international law. These rules and provisions were drafted and approved in the abstract, but how would they actually work in practice? – We hear that the USA has undertaken an enormous diplomatic effort to limit the jurisdiction of the ICC. To what extend would the outcome of these efforts create an obstacle for the Court to exercise its jurisdiction? – The new ICC Prosecutor has just been sworn in, and several hundred incidents have been reported to the Court where crimes falling under the Rome Statute of the International Criminal Court might have been committed. Still, it might take some months, if not years until the Court sees its first indictment or trial and until the statute and rules of the Court are applied for the first time.
Conference Report – “From Government to Governance? The Growing Impact of Non-State Actors on the International and European Legal System” - 6th ASIL / NVIR / T.M.C. Asser Institute Joint Conference in The Hague, 3 -5 July 2003
Authors: Kirchner Stefan
Published: March 2019

This year's 6th Joint Conference held by the American and Dutch Societies of International Law and organised by the T.M.C. Asser Institute in The Hague focused on the increasing importance of the role of non-state actors in international law and at the same time provided an opportunity for American and European lawyers to address recent differences between the U.S. and Europe, e.g. on the use of force in Iraq. Consequently one of the three major issues of the conference was the response to international terrorism, while other issues included the role of international organizations as well as transnational corporations in international law.
Constitutional Law as a Work of Art - Experts’ Eyes: Judges of the World examine the Constitution of Europe
Authors: Kemmerer Alexandra
Published: March 2019

“To be honest,” remarked Lord Scott with dry humor when we left Villa La Pietra, -“to be honest, I passed no single room where I would simply feel comfortable after a long day's labors.” However, the British Lord of Appeal in Ordinary thinks highly of the arts, certainly no less than his colleagues from Washington, Paris, Rome, Karlsruhe and Luxemburg with whom he explored the collections at La Pietra on this midsummer afternoon. But the wealth and variety of the artworks assembled during the course of the last century by English eccentrics and their assemblage according to fairly personal esthetic criteria relieve the visitor barely for a moment of concentrated observation, requiring permanent attention – and considerate behavior in the midst of irreplaceable treasures.
The Shared Transatlantic Jurisprudence of Dignity
Authors: Miller Russell
Published: March 2019

Critiques of Robert Kagan's recent, inflamatory work on the nature and state of transatlanticisim seem to come in three forms: material, analytical and emotional. By “material” I mean critiques of the fundamental and more or less obvious facts and structures out of which he has spun his claims. These facts amount to little more than the less than revelatory reminder that the U.S. devotes considerably more resources to security and defense spending than do Europeans. Critiques of Kagan's work at this level are pointless. At least on this much, Kagan has it right: we are now all too familiar with the staggering statistic that reveals that American security and defense spending is equal to the total of the expenditures of the next twenty countries.
Of Power and Justice
Authors: Wrange Pål
Published: March 2019

This spring, Florence was cluttered with peace flags, hanging out from private apartments, churches, official buildings, and businesses. One day in the middle of March, I counted as many as 50bandiere de la pacein a single street crossing in the Oltrarno area, south of the river Arno. On 9 June 31 of them were still hanging there. At the time of my first count, it was obvious that the flags all meant “no” to the military action that was to begin in Iraq. What did they mean two months after the fall of Baghdad?
If I had a Hammer: A Review of Kagan's “Power and Weakness”
Authors: Dilling Olaf
Published: March 2019

In recent years it has become a truism that after the Cold War Europe no longer plays the important role it used to play. The focus of US foreign policy seemed to shift away from Europe towards other regions like the Middle East or Asia. This process is even accelerated by the recent disagreement of European politicians with respect to the U.S. led military action against Iraq. The climax of this development was Chancellor Schröder's strict and explicit rejection of a German role in any form of military action against Iraq, be it sanctioned by a UN Security Council resolution or not. German Federal Minister of Justice Herta Däubler-Gmelin was axed in the wake of the tensions and replaced by Brigitte Zypries after she compared Bush's war against terrorism with Hitler's strategy to concentrate on foreign policy in order to distract attention from domestic problems (thereby, as the Economist put it, giving a fine example of “the pot calling the kettle black.”).
American Legal Theory and American Legal Education: A Snake Swallowing its Tail?
Authors: Schlegel John Henry
Published: March 2019

My story is a story about American Legal Realism. It is part of an attempt to understand what Realism was by addressing the question, “Why is the study of Realism a subject of legal history and not of current events?” Of course, the “answer” to such a question is made up of several partial answers, of which what follows is but one. Others would talk about the relationship between legal doctrine and capitalist economic development or about legal theory and political philosophy or about legal theory and legal practice, to name a few examples. However, this partial answer can best be approached by examining how a simple idea about law - the liberal idea of the rule of law in its guise as the “rule theory of law” - has had in its rise and in its demise an impact on legal education and to attempt to understand why that is so. My attempt however, requires that I start my story back aways with Christopher Columbus Langdell and the Harvard Law School.
Legal Disintegration and a Theory of the State
Authors: Clune William H.
Published: March 2019

This paper describes a topology of legal thought and the social conditions (the larger social construction of reality) of which that topology, that thought, is a component. Part I is a description of the structure of legal thought; Part II of the social conditions (a theory of the state, or political economy). The Conclusion considers the place of traditional legal practice on a new landscape.
Rationality Potentials of Law - Allocative, Distributive, and Communicative Rationality
Authors: Preuss Ulrich K.
Published: March 2019

It is hardly controversial that the modern law is a pivotal element in the process of societal rationalization. But the concept of rationality (or rationalization) is rather vague and ambiguous; even beginning to clarify it requires elements of a social theory. The law is not a quasi-technical, neutral “instrument” which can be applied in any society for any purpose. Rather, as an element of a society's structure it not only codetermines its specific mode of reproduction but informs us about the standard of civilization a society has attained. Throughout this essay I shall take the position that, for reasons of politics, morality, and what I understand to be ongoing requirements of justification in stable societies, we wish to privilege law in some way. This position is closely connected with the quest for legal rationality.
Is Post-Positivism Possible?
Authors: Petroski Karen
Published: March 2019

In some of his last published works, Neil MacCormick began to refer to his theoretical position as “post-positivist.” In light of the widely perceived limitations of the “positivist” label, this self-identification might seem prudent. Was it anything more? Was MacCormick's position really post-positivist? In this paper, I argue that it was not, but that this need not be viewed as a failing of MacCormick's work, since there is a sense in which modern jurisprudence cannot and need not hope to become generally post-positivist. More specifically, given the institutional context in which legal scholarship is produced, positivism is likely to be an inevitable (if not necessarily dominant) mode of theorizing about law. Yet much informative work remains to be done under the positivist rubric—not just along the lines suggested by MacCormick, but along others as well.
Seven Role Models of Legal Scholars
Authors: Jakab András
Published: March 2019

In the following Article I will develop seven ideal-typical role models for (or caricatures of) legal scholars: the Oracle Scientist, the Prophet, the Law Reformer, the Humble Clerk, the Wise Pragmatist, the Self-Reflective, and the Media Star. Ten features will be used to characterize the ideal for each model: primary audience, ideal function, perverted form, influence on the law, prestige, measure of success, time scale, use of non-legal (moral or social/economic) arguments, precondition of existence, typical countries, and famous lawyers (representing themselves or at least proposing to other legal scholars to follow that specific role model).
Assessing Legal Research: Sense and Nonsense of Peer Review versus Bibliometrics and the Need for a European Approach
Authors: van Gestel Rob , Vranken Jan
Published: March 2019

There is no uniform approach to assessing scholarly publications in legal research. Peer review is still the most accepted form, but the popularity of bibliometrics, such as the impact scores of journals and the citation scores of individual articles is increasing. However, there is no ranking of European law journals and none is likely to materialise any time soon. Comparing the UK, Belgium and the Netherlands, we will demonstrate why both peer review and the use of metrics have serious shortcomings. We believe it is necessary to think about such alternatives as more attention for methodological justification in legal research, more clarity from editorial boards about the quality criteria being used to approve or reject submissions, and more emphasis on standards for different forms of legal scholarship. Last but not least, we call for a Europe-wide debate on the pros and cons of different systems of research assessment, rather than let every country reinvent the wheel.
The Impact of EU law on National Judiciaries: Polish Administrative Courts and their Participation in the Process of Legal Integration in the EU
Authors: Jaremba Urszula
Published: March 2019

Since May 2004 Polish administrative courts have passed a great deal of judgments in which the law of the European Union (formerly European Community law) has played either the main role or a subsidiary role in the proceedings. This article seeks to examine how the above-mentioned courts comply with the expectations which are put on them by EU law and how they participate in the process of legal integration within the EU. In this context, the author scrutinizes how the national judiciary adjudicating in the administrative law area understands, interprets, employs and applies the systemic principles of EU law such as: supremacy, and (in) direct effect and effectiveness. In addition, the participation of national courts in the process of a dialogue with the Court of Justice of the European Union through the preliminary ruling procedure is captured. The analysis is not aimed at being exhaustive and focuses solely on the total impact of EU law on the national judiciary and the general trends in the judicial application of EU law, that is to say the overall reception of EU law and the dimension of the EU-friendliness displayed by Polish administrative courts.
Prospects for the Increased Independence of International Tribunals
Authors: Benvenisti Eyal , Downs George W.
Published: March 2019

There appears to be a widespread perception, particularly among developing states, that international institutions continue to be disproportionately influenced by a small group of powerful states that played a dominant role in their creation and design. In recent years this has led to a growing acceptance among international legal scholars that the future legitimacy and credibility of international tribunals will be critically tied to the extent to which they are viewed as independent.
A Procedural Approach to the Legitimacy of International Adjudication: Developing Standards of Participation in WTO Law
Authors: Ioannidis Michael
Published: March 2019

Lawmaking by judicial institutions requires legitimation. As international courts gradually play an ever more significant part in the shaping of international law, they share with any other lawmaker the need for a convincing basis of legitimacy. In the case of international courts, however, this need has to be addressed by taking into account their special function: that is, to review decisions made by other lawmakers (mainly domestic). The question of the legitimacy of judicial institutions is thus crucially connected with the standard they apply in reviewing such decisions.
Does the European Commission Have Too Much Power Enforcing European Competition Law?
Authors: Karayanidi Milana S.
Published: March 2019

The article critically assesses the role of the Directorate General of the European Commission in executing enforcement of the European Communities Competition Law. The Commission is granted equally unprecedented legal powers to carry out the functions of policy maker, investigator, “judge”, “jury”, and “executioner”. For some, it is accordingly difficult to resist the suggestion that the focus of so many regulatory roles and so much power in the hands of one organization represents a legitimate source of concern. By comparing the European system of antitrust enforcement with that of the United States and examining the historical evolvement of the Commission's role, the article determines whether focus of so much power in the hands of the European Commission forms a legitimate source of concern. It determines whether so much power given to the Commission may interfere with the basic rights of corporate undertakings to carry out their business operations, and how the powers granted to the Commission lead to legally based reasons for anxiety.
Multilingualism and Multijuralism: Assets of EU Legislation and Adjudication?
Authors: Schilling Theodor
Published: March 2019

The article discusses whether EU arrangements allow the opportunities offered by its multijuralism and multilingualism to be realized and the problems raised by them to be minimized. Those opportunities are defined, in the case of multijuralism, as the EU having at its disposal a toolbox of many legal solutions for many situations. In the case of multilingualism, one has to distinguish between a strong variety (all language versions are equally authentic) and a weak variety (one authentic language and so many official translations). One opportunity offered by both varieties is that multilingual laws are linguistically superior to monolingual ones because of the clarifying effect of translations. An opportunity offered only by the strong variety is that the meaning of such a law can best be pinned down by linguistic triangulation, i.e. by approaching it from different linguistic angles. Problems caused only by strong multilingualism are the intractability of contradictory language versions of a law and the very indeterminacy of all laws, which is the necessary counterpart of the possibility of linguistic triangulation. Concerning multijuralism, the article finds ample possibilities for EU lawmakers and adjudicators alike to make use of the toolbox. Concerning multilingualism, while the clarifying effect of translation is real enough, current arrangements allow the EU to profit from it only at some legislative stages. Further, linguistic triangulation is found not to be a workable concept in the EU, which has 23 authentic official language versions. Strong multilingualism therefore, cannot offset the problems it causes.
Case Note—Judgment of theBundesgerichtshof(Federal Court of Justice of Germany) of 22 March 2011: Passion to Inform—BGH Expands Banks' Advisory Duties
Authors: Jansen Jean David
Published: March 2019

In February 2011, aBundesgerichtshof[BGH—Federal Court of Justice] decision caused a great media echo. The court convicted Germany's largest bank to pay about half a million Euros in damages for the breach of advisory duties. In the aftermath of the financial crisis, banking law evolved fast in German courts. The recent decision raises new questions concerning the advisory duties of a bank, when offering financial products to its clients. The article gives an insight to various factual backgrounds, which, as financial products of today, are somewhat complex. Another interesting aspect to this case is that there are numerous decisions of lower courts that dealt with the same product as the BGH did. The ruling is considered to be far-reaching and groundbreaking. This case note will look into the question how far this is true.
Euratom, the European Court of Justice, and the Limits of Nuclear Integration in Europe
Authors: Wolf Sebastian
Published: March 2019

Only a few European integration experts know that Jean Monnet, one of the masterminds of the European Coal and Steel Community, strongly preferred the European Atomic Energy Community to the European Economic Community in the 1950s and 1960s. From his point of view, sectoral and technical cooperation in the field of nuclear energy seemed to be much more promising in order to foster European integration than cross-sectoral economic integration. Monnet and others believed that nuclear energy could, inter alia, solve all energy supply problems, would revolutionize research and technical development, and could contribute to unifying the peoples of Europe in a few decades. However, nuclear energy in general and Euratom in particular have belied these expectations.
The Loss of Citizenship by Revocation of Naturalization or ex lege: Overview of German Case Law and Legislative Changes of 2009
Authors: Kirsch Andrea
Published: March 2019

In recent years, German nationality law was subject to changes. Several legal issues that had previously not been decided by the Bundesverwaltungsgericht (Federal Administrative Court—FAC) and the Bundesverfassungsgericht (Federal Constitutional Court—FCC) were clarified by these courts. Still, some questions had been left unanswered; the courts explicitly demanded that parliament become active. Issues were namely the time limit for revocation of naturalization, the effect of revocations on third parties (like children) that had been naturalized at the same time and the effects of the discontinuance of certain premises that had been the condition for the obtainment of citizenship by children ex lege on their naturalization. Parliament complied with this call to action; in February of 2009, the changes came into force.
The European Court of Human Rights: Yesterday, Today and Tomorrow
Authors: Hedigan Justice John
Published: March 2019

I would like to address the European Court of Human Rights (ECtHR) from the perspective of its past, its present and its future. Where did this institution come from and why? It was the first Court to provide the opportunity to an individual to sue his government before an international tribunal although the initial expectation was that it would be State parties that policed each other under the system established. Why such a radical innovation and to what purpose? Why should State parties create a stick with which they themselves might be beaten?
The ECHR, the EU and the Weakness of Social Rights Protection at the European Level
Authors: O'Gorman Roderic
Published: March 2019

Ever since the conceptual division of rights into three separate categories; civil, political and social, the legal status of social rights has been controversial. This divergence in views is illustrated by the decision of the Council of Europe in 1950 to protect civil and political rights through a judicial format where adherence to the European Convention on Human Rights (ECHR) was ensured by the European Court of Human Rights, whereas social rights were addressed separately through the European Social Charter (“Social Charter”), with merely a reporting mechanism to the European Committee of Social Rights.
The Future of the European Court of Human Rights
Authors: O'Boyle Michael
Published: March 2019

It is a pleasure to be back in Dublin and to have this opportunity to speak to you about the Court and its future. Reading the outpourings of denigration in the newspapers recently you can be forgiven for believing that the Court is about to be towed into the middle of the Rhine and scuppered by a coalition of unhappy State Parties. So where does the future of the Court lie and how should one respond to such media buffetings?
Lecture –– Germany's Sozialstaat Principle and the Founding Period
Authors: Bommarius Christian
Published: March 2019

I cannot avoid beginning on an embarrassing note –– speaking to you as possibly the next German Foreign Minister. That is a position I will have earned because it is a good old (bad) tradition in Germany that its Foreign Ministers speak English either not at all or so badly that it is better if they do not speak it. Some say that not being able to speak English is even a requirement for becoming Foreign Minister. Well, in that case my prospects are excellent. I hope you will forgive my poor English.
Marriage, Same-Sex Partnership, and the German Constitution
Authors: Sanders Anne
Published: March 2019

Marriage today does not only involve private interests; it is also an important legal and political issue. The question of what marriage means today and whether it should be open to same-sex unions is under debate all over the world. In many countries, for example in Germany and the United States, such questions are not only debated in the political arena, but also in relation to constitutional law. This Article will trace the development of how marriage has been understood in relation to German constitutional law and critically discuss the law's approach to same-sex marriage.
Expanding Criminal Laws by Predating Criminal Responsibility - Punishing Planning and Organizing Terrorist Attacks as a Means to Optimize Effectiveness of Fighting Against Terrorism
Authors: Wörner Liane
Published: March 2019

Going after terrorists, often means “fighting the unknown”. The so-called “new threat” cannot be tracked back to known terrorists plotting against known government officials within national boundaries. The need for early investigation is clear, nothing more urgent than to forestall further terrorist actions. Today's sleeper can be tomorrow's terrorist. Hence, the argument herein is that new developments remain as consequent continuation perfecting well-known terrorist strategies and techniques. Instead of predating criminal responsibility the unknown needs to be identified. In refusing such identification current criminal law turns into a soft law reflecting actual social needs by preventing a future wrong. Current German criminal law on terrorism overextends appropriate borders in criminalizing chains of preparations. Punishment is carried out for “thinking different” by way of pre-crime, just symbolizing the wrong. The paper argues that even if criminal responsibility is predated in order to identify the unknown, it has to base on behavior, which can be understood as disorder outside the offender's interim sphere to qualify as criminal wrong. This applies to suspected terrorists and also to all other suspects of crime.
The “Place of Effective Management” as a Connecting Factor for Companies' Tax Residence Within the EU vs. the Freedom of Establishment: The Need for a Rethinking?
Authors: Cerioni Luca
Published: March 2019

The determination of the tax residence of companies – as a fundamental issue of (international) tax law – emerged between the end of the 19thcentury and the start of the 20thcentury. This emerged as an issue in cases where companies which were found to have their place of management, in the sense of a decision-making centre, in the United Kingdom (UK), carried out all their business activity, in terms of production and commercialization, in another country. At a time when the UK was establishing its tax system earlier than other countries, the tax courts of this country began to develop the “central management and control test” as a test for establishing companies' tax residence in these situations and to consider the companies at stake as tax residents in the UK on the ground that their decision-making centre was located there. Such decisions appeared to have been driven by an interest to prevent companies carrying out their business abroad from escaping UK taxation on their worldwide income, and thus to have been motivated by a specific anti-avoidance purpose. Nonetheless, the “central management and control” test formed the basis of the “place of effective management” test which, under the Organization for Economic Cooperation and Development (OECD) Model for bilateral conventions against double taxation, is currently adopted as a tiebreaker rule,i.e.as a criteria for allocating the tax residence of companies in cases where both contracting
Remarks at the Opening of the Symposium Celebrating the 10th Anniversary of the German Law Journal – In Praise of Transnationalism
Authors: Bryde Brun-Otto
Published: March 2019

My short intervention has two parts: First, I want to congratulate the team of the German Law Journal on ten years of successful work from the perspective of a German reader. Second, I want to praise the transnationalization of legal culture, the subject of this conference.
Remarks at the Opening of the Symposium Celebrating the 10th Anniversary of the German Law Journal — Positioning German Scholarship in the Global Arena: The Transformative Project of the German Law Journal
Authors: von Bogdandy Armin
Published: March 2019

The 10th anniversary of the German Law Journal marks ten years of a seminal project to transform legal scholarship and adapt it to globalization.

As the transnational sphere becomes dominant, globalization means more than interdependence. It entails profound change to the academic systems as currently understood. These systems were formed in the nineteenth and early twentieth centuries as national institutions. Academics were (and often still are) public servants; future academics — particularly those representing the interests of the state in core areas like education, law, forestry, and theology — can only become public servants after they undergo state examinations. National institutions have financed academic scholarship in order to achieve effective administration, national fame, and economic profit. Accordingly, academic scholarship organized itself into national associations, nurtured national publication bodies, whose public voice spoke in the mother tongue. Certainly, international contacts were maintained with varying intensity, and comparative law has had an enduring and prominent history in many legal fields. However, these contacts had a national foundation that largely determined orientation, style, media, means, career and reputation. Under the bell jar of the nation state, national academic communities developed strikingly individual characteristics.
Remarks at the Opening of the Symposium Celebrating the 10th Anniversary of the German Law Journal – U.S. Embassy in Berlin
Authors: Pollard Robert A.
Published: March 2019

It is a privilege to address such a distinguished audience of judicial and legal professionals, including Minister Zypries and Professors Miller and Zumbansen, and to celebrate with you the 10th anniversary of the German Law Journal. In the past decade the German Law Journal has played an important role in improving our understanding of German, European, and international law and jurisprudence, especially by illuminating the political, historical and cultural context in which legal decisions are made at each of those levels. I would especially like to commend the joint projects that the German Law Journal has initiated with American law students. This is a wonderful way to build links within the transatlantic legal community. And, of course, what many of my American colleagues and I find particularly helpful is that the German Law Journal is published in English!
Theorizing Transnational Law – Varieties of Transnational Law and the Universalistic Stance
Authors: Mahlmann Matthias
Published: March 2019

It is difficult to put a label on a historical period. Human history is full of variety, complexities and contradictory developments. Consequently, the precondition of grand theories of history is often their openness to unjustified simplification. On the other hand, some orientation is indispensable, and for this, general descriptions are helpful if one stays aware of their limited function and value. With this in mind it is possible to state that the post-war period is marked by what one may call a universalistic stance.
Europe as Transnational Law– The Transnationalization of Values by European Law
Authors: Calliess Christian
Published: March 2019

Values define an important link between law and culture. Giving consideration to the title of the German Law Journal's Tenth Anniversary Symposium, “The Transnationalization of Legal Cultures,” I will address how European law has affected the transnationalization of values.
Conference Report — The Transnationalization of Legal Cultures
Authors: Abplanalp Kaitlin , Bruckmann Ronald
Published: March 2019

On July 2 and 3, 2009, both old and new friends of the German Law Journal (GLJ) gathered in Berlin for a symposium in celebration of the Journal's tenth anniversary. The two-day symposium, hosted in partnership with the Budesministerium der Justiz (the Federal Ministry of Justice) and the Law Faculty of the Freie Universität, brought together renowned justices, scholars and practitioners as well as law students from North America and Europe to discuss the transnationalization of legal cultures.
Aussenwirtschaftsrecht and corporate investments in Germany – new hurdles for foreign investors
Authors: Theiselmann Rüediger
Published: March 2019

The newAussenwirtschaftsrechtgenerates new insecurity with regards to M&A transactions: On the one hand every industry may be affected by a prohibition, whereas certain sectors (telecommunications, energy incl. oil or natural gas, universal postal services, railway nets, banks, pharmaceutical industry or chemicals industry) are presumably of special importance. On the other hand, vendors should preventively ask any potential buyers from abroad but also German based prospects (given the fact that external investors could be one of their main shareholders) for a written declaration that they comply with the new law or that they have received anUnbedenklichkeitsbescheinigungfrom the BMWi. Additionally, investors from outside the EU or EFTA seeking to purchase of at least 25 percent of a German enterprise should consider anUnbedenklichkeitsbescheinigungat an early stage, ideally in combination with passing on the complete transaction files to the BMWi. Only in this way is a high level of legal and transaction safety possibly achieved. Conversely, investors prepared to risk of prohibtion and considering the intended purchase as unproblematic should desist from an announcement to the BMWi but bear in mind that theBaFinor theBundeskartellamtcould inform the BMWi, thereby triggering an assessment.

Due to the new law, the BMWi will get an improved overview of planned or ongoing M&A transactions in Germany, given that many investors or vendors will apply for anUnbedenklichkeitsbescheinigungas a precaution. But the German state gains this increased level of regulation only through significant administrative efforts.
Review Essay –Principles of European Constitutional Law (Armin Von Bogdandy & Jurgen Bast eds., 2006)
Authors: Martinico Giuseppe
Published: March 2019

Recently the GermanBundesverfassungsgericht(Federal Constitutional Court) knocked on the European Union's door with its impressive judgment on the Lisbon Treaty, recalling all the weight of the German scholarship tradition steeped in the German dogmatic flavor: the attention to the history of sovereignty and the attempt to catch all the European Union constitutional system's life revealed the systemic approach peculiar to the German dogmatic scholarship.
The Basic Law at 60 – Introduction to the Special Issue
Authors: Baer Susanne , Boulanger Christian , Klose Alexander , Will Rosemarie
Published: March 2019

For Germany 2009 was a year of constitutional anniversaries: the first democratic constitution (Paulskirchenverfassung of 1849) was promulgated 160 years ago; the 1919 Weimar Constitution would have turned 90; and finally, the country celebrated 60 years of the Basic Law, which was proclaimed and signed in Bonn on 23 May 1949. Despite its birth in the midst of economic and political turmoil and widespread disillusion with politics, the Basic Law has come to be regarded as a “success story.” As is well known, it was never meant to last – the very term “Grundgesetz” (basic law) indicated that it was intended to serve as a temporary constitutional framework until the enactment of a new constitution for the whole of Germany. Yet the Basic Law outgrew its provisional character. Today, not only the political establishment is united in praising the Grundgesetz. The scholarly assessment also has been mostly positive. The constitutional bargain struck in 1949 has been able to achieve what no previous German constitution had managed. The right and the left of the German political spectrum fashioned an enduring compromise that combined democracy, federalism and the welfare state. It is part of the story that the old anti-liberal and nationalist elite had been thoroughly delegitimized by loosing the war. Also, the Allies gave the effort an additional nudge. The progressive changes could then be implemented quite effectively by relying on the juristic culture of the Rechtsstaat that dates back to the bureaucratic legacy of, among others, the Prussian state.
The Basic Law at 60 – Politics and the Federal Constitutional Court
Authors: Zypries Brigitte
Published: March 2019

I don't usually open my commentary by citing great words spoken by old men. But in this case I will make an exception. Ferdinand Lassalle is not only the grandfather of German social democracy; he is also the author of these words: “Constitutional issues are power issues.”
The Basic Law at 60 – From 1949 to 2009: The Basic Law and Supranational Integration
Authors: Kokott Juliane
Published: March 2019

Sixty years after the entry into force of the Basic Law the world is much more interdependent. The concepts of statehood and sovereignty have changed. The following contribution examines how the Basic Law, as amended and interpreted by the Federal Constitutional Court, deals with this development. As a foundational matter, the Basic Law contains a commitment towards integration, although sixty years ago integration largely was seen as a promise. Now, 60 years later, the Federal Constitutional Court is developing limits to integration and recently ruled out Germany's participation in a European Federal State and sees itself as the guardian of German sovereignty. A change of paradigms seems to have taken place. For the founding fathers and mothers, a united—possibly even federal—Europe was considered to be the solution to protect against war and relapse towards an undemocratic, terroristic regime. But now the Federal Constitutional Court feels compelled to protect democracy and the core values of the Basic Law against “too much” European integration.
Keynote Address: “Sociology of Law in Germany”
Authors: Raiser Thomas
Published: March 2019

The following essay was the keynote delivered at the International Conference of the German Law & Society Association in Bremen, Germany, in March 2010. In seeking to understand the formation of the Association of the Sociology of Law it is important to be mindful of the context of the spirit of the 1960s and 1970s in which it arose. Sociology of law's beginnings can be traced to the start of the 20th century with especially Eugen Ehrlich, Max Weber, Hermann Kantorowicz, Arthur Nußbaum and Theodor Geiger. However, after nearly being wiped out under German National Socialism, it began to re-emerge slightly in the 1960s.
Review Essay– Fuyuki Kurasawa's, The Work of Global Justice: Human Rights as Practices (2007) - [Fuyuki Kurasawa, The Work of Global Justice – Human Rights as Practices (Cambridge University Press, 2007); ISBN: 9780521673914; 256 pp.; $31.99 Paperback]
Authors: De Luca Adam
Published: March 2019

This is a book review of Fuyuki Kurasawa's, TheWork of Global Justice: Human Rights as Practices.Fuyuki Kurasawa is an associate professor of sociology, political science and social and political thought at York University in Toronto. Professor Kurasawa has a particular interest in human rights and global justice through the exploration of the theoretical underpinnings of global justice projects. Kurasawa proposes a theoretical model that strikes a balance between normative universalism and empiricism. This leads to a vision of an alternative globalization marked by radical redistribution of economic and political power. The work of global justice is largely the emancipation of those who are systemically barred from justice, through five modes of ethico-political practice: bearing witness, forgiveness, foresight, aid and solidarity. This book review is a critical look at this theoretical model and his vision of an alternative globalization.