bluuebunny/crossref_metadata_2025 huggingface dataset:
Law as Integrity and Law as Identity: Legal Reasoning, State Intervention, and Public Policies
Authors: Feres Marcos Vinício Chein
Published: March 2019

Taking both ordinary regulations and constitutional principles in account, is state intervention in the market through public policies legitimate? The legitimate use of public policies, as far as state intervention is concerned, will be analyzed taking into consideration legal procedures and the necessary legal interpretation. Methodologically, the theoretical object of this research is to conciliate the idea of law as integrity, developed by Dworkin, with the idea of law as identity, complemented by Taylor's idea of identity and Bankowski's idea of living lawfully. In fact, the methodological approach consists of reconstructing a system of analytical concepts based on a moral reading of legal rules and constitutional principles rooted within contemporary legal theory. The final object is to figure out new means of interpreting legal economic regulations and finding new ground for the legitimate evaluation of public policies.
Does Economic Analysis of Law Need Moral Foundations?: Comment on Chein
Authors: Tuzet Giovanni
Published: March 2019

In this short paper commenting on Chein's contribution to the present and special issue of this Journal, I ask whether economic analysis of law, when understood as supporting, in particular, the state intervention in the market, needs moral foundations. This seems to be one of the claims made by Chein, and my answer is certainly “yes.” Economic analysis of law and state intervention in the market certainly need some moral ground (utilitarian, Kantian, or else). What I resist is Chein's claim that they need the complex theoretical construction of Dworkin's idea of integrity plus Taylor's idea of identity and Bankowski's idea of living lawfully.
The Interpretive Practice of the Hungarian Constitutional Court: A Critical View
Authors: Szente Zoltán
Published: March 2019

In this study, I examine the interpretive practice of the Hungarian Constitutional Court. The two-decade history of the Court gives sufficient experience to survey the methods of constitutional review employed by the Court. My analysis will concentrate on the period of 1990–2010, because the general elections of 2010 brought about essential changes not only in Hungarian constitutionalism, but in the Court's life too. The Constitutional Court, losing its independence and a substantial part of its earlier powers, will presumably not be the same anymore.
The Meaning ofRegulatory ActExplained: Are There Any Significant Improvements for the Standing of Non-Privileged Applicants in Annulment Actions?
Authors: Roer-Eide Haakon , Eliantonio Mariolina
Published: March 2019

The right to an effective legal remedy is a generally accepted principle of modern legal systems and is enshrined in national constitutions as well as international treaties, such as the European Convention on Human Rights and Fundamental Freedoms. On the European Union (hereinafterEU) level, the right to an effective remedy is laid down in Article 47 of the Charter of Fundamental Rights of the European Union.
The Freedom to Conduct a Business in the EU, Its Limitations and Its Role in the European Legal Order: A New Engine for Deeper and Stronger Economic, Social, and Political Integration
Authors: Usai Andrea
Published: March 2019

This paper examines the role and importance of the freedom to conduct a business enshrined in Article 16 of the Charter of Fundamental Rights of the European Union (CFR). With the entry into force of the Lisbon Treaty, the CFR became legally binding, gaining the same legal value as the Treaties. It will be argued here that Article 16 CFR, which recognizes the right to economic initiative, can be an important force for European integration by acting as a new engine of European social, economic, and political integration. That said, Article 16 should be read bearing its limitations in mind.
Fundamental Rights: The Missing Pieces of European Citizenship?
Authors: Raucea Chiara
Published: March 2019

All nationals of a Member State are Union citizens, and so, in principle, these citizens fall within the scope of European Union (EU) lawratione personae.However, the protection of European citizenship status (ECS) is a necessary but not a sufficient condition for enjoying European citizenship rights (ECRs). In order to bring a case within its jurisdiction, the Court of Justice of the European Union (CJEU) should also ascertain what the link is between ECRs and the scope of EU law (ratione materiae). Recently, the CJEU ruled that securing the “genuine enjoyment of the substance of the rights attaching to the status of European Union citizenship” is a sufficient condition to bring a case within the scope of EU law. This new formula challenges the traditional cross-border test: by referring to “genuine enjoyment,” it entails rethinking the CJEU's current practice of depicting the conditions under which a citizenship case should be consideredratione personaeandratione materiaewithin the scope of EU law. Importantly, the interpretative crux of this new formula concerns whether the Court has really opted for an innovative test of its jurisdiction, which may detach the protection of ECRs from the current exercise of fundamental freedoms. This paper critically maps out how the CJEU has gradually strengthened both the protection of the ECS and the protection of rights attaching to such status. It argues that the Court has recognized that thede factoexercise of fundamental freedoms is not the only way to establish a link between a EU citizenship case and the scope of EU law. On the contrary, the Court ruled that Art. 20 TFEU (on Union citizenship and European citizenship rights) can be invoked by Union citizens, even if they have never exercised their free movement rights, in order to challenge national measures, which “deprive citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union.” This interpretative move raises the question whether the new test concerning the substance of the rights attaching to the status of European citizens enhances the protection of fundamental freedoms, by also safeguarding the potential exercising of these freedoms in the future, or whether it calls for including the actual protection of fundamental rights (such as the right to respect family life) in the so-called “substance” of European citizenship rights. This paper argues that the Court's present approach indicates that the former is the case, casting doubts on the central position of fundamental rights with regards to European citizenship.
Security and the Transformation of the EU Public Order
Authors: Avbelj Matej
Published: March 2019

The purpose of this paper is to illustrate the changing character of the European Union (“EU”) public order under the impact of security concerns. The EU public order has long been characterized by a tension between a more market-oriented, neo-liberal Union and a more socio-political Union. The former would be driven by the EU's four fundamental freedoms, whereas the latter would be achieved and safeguarded through the language and practice of fundamental rights. As other scholarly contributions to the issue have demonstrated, the relationship between fundamental freedoms and fundamental rights is anything but settled. It continues to be subject to many, sometimes potent, legal and political controversies. However, while the EU public order is still in pursuit of the right balance between economic freedoms and socio-political rights, it also has to reckon with another fundamental value: The value of security.
A Note From the Editors: The State of the Political Constitution
Authors: Goldoni Marco , McCorkindale Christopher
Published: March 2019

The revival of the political constitution has come about in parallel with two developments, one in constitutional practice and the other in political theory. With regard to the former, the political constitution has been seen as something of a bulwark against the rise of legal (or judicial, or common law) constitutionalism. The seeming hegemony of this latter model of constitutionalism among contemporary lawyers and political scientists has produced from (so-called) political constitutionalists a reaction against the delegation of important decisions to non-political institutions and an obsessively court-centered scholarship. Perceiving this shift in focus from political to legal institutions to be the very antithesis of the traditional Commonwealth (more particularly, of the United Kingdom's parliamentary) model of constitutionalism, and, more broadly, to be an affront to democratic sensibilities, the notion of the political constitution was retrieved and defended in a seminal article in the 1979 edition of the Modern Law Review, written (though first delivered in his Chorley Lecture the previous year) by the late John Griffith. More recently, in the work of Adam Tomkins, Richard Bellamy, and Grégoire Webber and Graham Gee, a normative interpretation has been lent to Griffith's thesis so as to provide a full-fledged constitutionaltheorycapable of standing as an alternative to the liberal-legal paradigm—a turn, one might say, from the political constitution to political constitutionalism.
Foreword: Plea Bargaining in Germany after the Decision of the Federal Constitutional Court
Authors: Safferling Christoph , Hoven Elisa
Published: March 2019

Criminal procedure is most critical for the rights of the accused. It does not surprise that criminal procedural issues often give rise to constitutional complaints by convicted persons. Yet far beyond the ordinary cases, the latest opinion of the Federal Constitutional Justices on the constitutionality of the so-called deal-proceedings according to § 257c of the German Criminal Procedure Code (StPO) has caused much attention. The constitutional complaints, which kicked off the proceedings in Karlsruhe, forced the Justices to address the very basis of criminal procedure, its structure and traditional foundations. The decision of 19 March 2013, however, testifies the disunity amongst the justices and their anxiety not to trigger a stampede in the criminal justice system. Even if the outcome is rather unspectacular, the decision is nevertheless one of the most important and fundamental judicial documents concerning criminal procedure of the last years. Because of the centrality of the issue and its relevance also for comparative criminal law, we have decided to provide this topic with the broad room it deserves and put together a special issue on the “deal-decision” of the German Federal Constitutional Court.
Plea Bargaining in Criminal Proceedings: Changes to Criminal Defense Counsel Practice as a Result of the German Constitutional Court Verdict of 19 March 2013?
Authors: Schemmel Alexander , Corell Christian , Richter Natalie
Published: March 2019

Numerous comments have already been published on the verdict of the German Constitutional Court (BVerfG) of 19 March 2013 (2 BvR 2628/10, 2 BvR 2883/10, 2 BvR 2155/11) regarding the constitutionality of the legal regulations on plea bargaining in criminal proceedings under the central provision of § 257c of the (German Code of Criminal Procedure) (StPO). The assessments range from perplexity, “mixed, but with modestly auspicious overtones” and “provisional legal security” to agreement with the decision, although only “in the approach, but not in every point of the justification.”
Rebel Without a Good Cause: Karlsruhe's Misguided Attempt to Draw the CJEU into a Game of “Chicken” and What the CJEU Might do About It
Authors: Kumm Mattias
Published: March 2019

When the Federal Constitutional Court (hereinafter FCC) decided to refer the question of whether the European Central Bank's (ECB) decision on the purchase of Outright Monetary Transactions (OMTs) is compatible with EU primary law, it effectively forced the Court of Justice of the European Union (CJEU) into a game of “chicken.”
Friendly or Unfriendly Act? The “Historic” Referral of the Constitutional Court to the ECJ Regarding the ECB's OMT Program
Authors: Thiele Alexander
Published: March 2019

The boundaries of European integration and especially the relationship between European and German Constitutional Law have occupied the German Constitutional Court—the Bundesverfassungsgericht in Karlsruhe—time and again since its firstSolange IJudgment of 1974. Practically all of these decisions—Solange II,Maastricht,Lisbon, andHoneywellto name just a few—have had a major impact not only on the national, but also on the European discourse regarding the future of the European Union. 14 January 2014 now marks the date of another “historic” decision in this sense, which, unsurprisingly, has already led to major discussions not only in Germany, but all over Europe. For the first time ever the Constitutional Court has initiated a referral to the European Court of Justice asking questions about the conformity of some of the highly disputed measures of the ECB taken to fight the crisis with Primary European Law. The reluctance of the Constitutional Court to comply with its duties under the TFEU and to accept the role of the ECJ as the final interpreter of European Law had been criticized for many years, not only after theLisbonDecision of 2009. However, the Constitutional Court reacted to these critics in itsHoneywellDecision of 2010 and, so it seemed, started to redefine its understanding of its relationship with the European judicial system. This redefining process has now found its temporary endpoint with this first referral, which therefore truly stands for a new era in the relationship between the Constitutional Court and the ECJ within the “European Network of Constitutional Courts.”
An American's View of The Federal Constitutional Court: Karlsruhe's Justices
Authors: Smith Craig
Published: March 2019

Few Americans have heard of either Karlsruhe or its courts, the Bundesverfassungsgericht (Federal Constitutional Court) and the Bundesgerichtshof (Federal Court of Justice). Moreover, American lawyers who walk through the unique, Enlightenment-era city center of Germany's seat of justice may be surprised. Karlsruhe's streets are neither the twisting, medieval alleyways of travel brochures that extol Europe's charms nor the grand, straight avenues of Berlin. They are evenly spaced spokes of a rational planner's superimposed wheel. When American lawyers approach the Federal Constitutional Court (FCC), they find a further surprise: The court inhabits a modest, modern building. This unimposing structure is stunningly different from the U.S. Supreme Courts massive marble temple on Washington's unmistakably imperial Capitol Hill. The German court sits quietly, unobtrusively between gardens and lawns around a palace that long ago ceased to be a center of political power. Except for the handful of armed guards, one could easily mistake the court for an ordinary office building or part of the local university.
An Introduction to the Federal Constitutional Court
Authors: Kommers Donald P.
Published: March 2019

If social and political stability in a democratic state requires effective constitutional review, the brutal instability of German society over the first half of the 20th Century testifies to the shortcomings of earlier manifestations of German constitutionalism and the mechanisms for constitutional review upon which those constitutional systems relied. By the same standard, however, the stability and prosperity West Germany enjoyed (and has continued to enjoy since October 1990, as a reunified Germany) over the last half of the 20th Century bespeaks the integrity and efficacy of the Bundesverfassungsgericht (Federal Constitutional Court), the unique constitutional organ celebrating its 50th anniversary this year.
Celebrating the Milk Maid: What Federal Constitutional Court President Limbach Doesn't Tell Us About the Court Says It All
Authors: Winkler Viktor
Published: March 2019

It's a small book. Actually, it is a very small book. Only one hundred and twenty-eight pages, it's a format so thin it could fit into a pocket. As a matter of fact, it is smaller than a copy of the Grundgesetz (German Basic Law) that a German law student would carry along to class. The book's title, however, is considerably more intrepid than the book's small stature. At the same time breathtakingly pithy and slightly immodest, the book is simply called Das Bundesverfassungsgericht (The Federal Constitutional Court). And at the top of the cover, just to make sure, the word “WISSEN” (KNOWLEDGE) appears in big letters. While one wonders how a publication of such limited size could deign to comprehensively present the important “knowledge” of the Federal Constitutional Court, the other words on the cover provide some assurance. Those words are the name of the book's author who obviously could not be more adequate for the task. The author, Jutta Limbach, is the current President of the Federal Constitutional Court presiding in her seventh year.
The Present and Future Meaning of the State and the role of the Federal Constitutional Court — Interview
Authors: Di Fabio Udo
Published: March 2019

In this exclusive interview with Federal Constitutional Court Justice, Professor Udo Di Fabio, GLJ looks forward to some of the challenges the Court will face in next fifty years, especially the meaning for the Court of domestic (privatization) and international (europeanization) changes to the role of the nation state. The interview begins with an exploration of the nature and role of the Federal Constitutional Court in light of radical changes in the law as well as the social sciences. Justice Di Fabio also addresses the Court's narrow role as an interpreter of legal texts, noting that the Court performs this function while also exercising broader, quasi-legislative authority within a pluralistic and post-traditional society. The interview then turns to questions related to the role of the state and the traditional public structuring of societal authority as set against the general turn to societal self-structuring, especially in the context of the debate over the nature of the European Union's authority.
Expansion of Closer Cooperation as Contra-Indication to the Idea of European Integration: A Critique of Joschka Fischer's Speech and Giuliano Amato's Comment Thereon
Authors: Tohidipur Timo
Published: March 2019

[1] In his speech at the Humboldt University in Berlin, 12 May 2000, Joschka Fischer described the expansion of “reinforced cooperation” as a necessary first stage to Europe's further development. He pointed out that, with the tool of closer cooperation, those states desiring to cooperate more closely than other member states of the European Union could make progress in many areas like environmental protection, the fight against crime, the development of common immigration and asylum policies and on foreign and security policy. As a model for a successful “reinforced cooperation” he mentioned the Economic and Monetary Union and Schengen. Although he did not want the closer cooperation to be misunderstood as the end of integration and consequently the preliminary stage to a divided Union, he further underscored the concept by proclaiming that this step would constitute the formation of a “center of gravity.” Such a group of states should conclude a new European framework treaty, would develop their own institutions and establish a government that speaks with one voice within the European Union. This proclaimed “center of gravity” should be the avant-garde, some kind of driving force for the completion of political integration.
Is there Still a Chance of Revitalizing the United Nations Security Council?
Authors: Frulli Micaela
Published: March 2019

As professor Antonio Cassese rightly said in a public speech on September 26, the terrorist attacks on the US not only caused an unbearable number of innocent victims, but they are also disrupting some of the most important international legal categories that seemed to be consolidated until September 11, 2001.
A Lack of Language – Waging War or Combatting Crime? The Blurred Rule of International Law in the Face of the Attacks of September 11, 2001
Authors: Binder Claus
Published: March 2019

After the terrorists' attacks of September 11, 2001, a lot of war rhetoric came out of the public and private sphere within the United States of America. On October 7, 2001, however, the rhetoric turned into reality as President George W. Bush countered the terrorist attacks and the threat of future terrorism with military means. While waging that new war U.S. governmental officials constantly make one important point, and that is that the United States are just exercising their right of self-defense. Moreover, on the day after the attacks, the Security Council of the United Nations unanimously reaffirmed the inherent right of self-defense as recognized by the Charter of the United Nations. Does that mean that international law is just that clear?
Lex Mercatoria: A Reflexive Law Guide To An Autonomous Legal System
Authors: Calliess Gralf-Peter
Published: March 2019

In this presentation I shall start with a brief introduction into the concept of Reflexive Law (Part I), in order to examine what makes especially Reflexive Law a promising candidate for a fruitful contribution to the ongoing debate on the normative-legal or mere social-factual status of Lex Mercatoria (Part II), and finally coming up with the suggestion of some criteria or features, which we should draw special attention on in the process of the emergence of a New Law Merchant as an autonomous legal system (Part III).
The Outrageous Hunters: Does Headhunting Violate Business Standards?
Authors: Maurer Andreas
Published: March 2019

During the last few years the German courts have had to face several cases in which companies — especially from the IT-sector — filed lawsuits against “headhunters.” “Headhunters” in this context are (usually) executive consultants who try to poach personnel from other companies by simply calling them and asking whether or not they want to change companies. Since skilled and qualified workers and employees are desperately but often unsuccessfully searched by innumerable German companies on the domestic and most recently also the European and international job-market, the methods of poaching have reached and sometimes crossed the borders of unfair practices. The courts faced with these cases had to draw these borders, a process this article attempts to outline.
Do Courts Have to Show Deference: Notes on Paul Craig's View on the HRA
Authors: Zucca Lorenzo
Published: March 2019

The 1998 Human Rights Act (HRA) has incorporated the European Convention of Human Rights into English law. Undoubtedly, it constitutes a very important event since it purports to create a new system of rights protection. In order to achieve this aim, the act also introduces some norms empowering the courts to review acts of the legislative and executive branches. The main vehicle for this provision is Section 3 of the Act, (1) which establishes a presumption of compatibility between national legislation and rights laid out in the articles of the European Convention on Human Rights (ECHR). Such a presumption requires courts to systematically attribute to legislation and executive acts the meaning that is most consistent with the protection of rights. Article 3 has been very controversial, (2) particularly concerning the scope of the power it attributes to the courts.
The Constitutional Significance of the Charter of Fundamental Rights
Authors: Wiener Antje
Published: March 2019

While constitutionalism appears to be a new buzzword in political, public and analytical Eurospeak, it is never quite clear whether there are any shared terms of reference in this debate in “Europe,” let alone on a worldwide scale. To sort out the different approaches and their analytical strengths and weaknesses, this article offers an overview of analytical choices that are likely to determine the type and outcome of discussions about the constitutional significance of the European Union's Charter of Fundamental Rights (hereafter: the Charter). (2) It juxtaposes the seemingly paradoxical parallel development of a widespread use of “constitutionalism,” and increasingly “constitutionalization,” on the one hand, and the theoretical and political divergence in its application, on the other.
Copyright & Art
Authors: Ortland Eberhard , Schmücker Reinold
Published: March 2019

What is the impact of copyright(and neighbouring rights)on art— on the conditions for artistic production as well as on other art-related practices in modern societies like trading, conserving, exhibiting, performing, reproducing and distributing works of art or reproductions thereof in various media? And what is the particular relevance of art (and of aesthetic concepts, or theories of art) for copyright? Why should the dogmatics of copyright be concerned with aesthetics at all, and what function do aesthetic concepts fulfil in the conceptual structure of copyright and in the context of its legitimization?
Positive Corporate Governance and its Implications for Executive Compensation
Authors: McConvill James
Published: March 2019

As a result of a series of high-profile corporate collapses worldwide, along with regular reporting of shareholder money being spent on corporate jets, executive golf days and increasingly excessive executive compensation arrangements, the common perception is that the executives of our largest corporations are driven by self-interest with little regard for what is best for the corporation. Due to this negative perception, there has been an exponential increase in the amount of laws, rules and guidelines setting in place a heightened standard of corporate governance best practice. Without such regulation, it is believed, another collapse or scandal is inevitable. In this article, I dispute this reasoning. In my view if we embrace “positive corporate governance”, in which the positive strengths and virtues of company executives are emphasised, we can move towards an environment in which heavy regulation is replaced by positive corporate norms inside the corporation. I then apply my approach of positive corporate governance to address one of the most significant issues confronting corporate regulation at present- how to deal with the rapid increase in executive compensation in our largest corporations. I suggest that the dominant methodology of pay for performance is ultimately flawed.
Germany's Federal Constitutional Court and the Regulation of GPS surveillance
Authors: Ross Jacqueline E.
Published: March 2019

In its recent decision of April 12, 2005, Germany's Federal Constitutional Court (FCC) addressed concerns that advances in the technologies of surveillance will erode fundamental rights. Though it rejected the petitioner's call to limit use of the Global Positioning System (“GPS”) to track the movements of suspects, the Court did warn that surveillance technologies working in tandem posed privacy risks that were greater than the sum of each one working alone. The Court required investigators from different agencies and states to coordinate their activities and disclose all ongoing surveillance when seeking judicial approval of additional methods and technologies. It likewise cautioned the Bundestag (German Federal Parliament) to monitor advances in surveillance technology and to develop new statutory safeguards that would protect personal data by limiting the use of more powerful innovations. Yet the Court's opinion left many questions unanswered. It did not explain how legislators or investigative agencies could avoid unnecessarily and intrusively multiplying the use of surveillance, given the overlapping jurisdiction of intelligence agencies with state and federal police. And insofar as the German Strafprozessordnung (Criminal Procedure Code – StPO) regulates only those modes of surveillance that produce criminal prosecutions, statutory suppression remedies have no clear impact on the investigative use of surveillance for purely preventive or intelligence-gathering purposes. My essay will explore the implications and limitations of the Court's opinion with an eye on analogous American law (introduced to gain a comparative perspective.)
Shareholder Protection in the USA and Germany - “Law and Finance” Revisited
Authors: Braendle Udo C
Published: March 2019

Though Company Laws of the United States and Germany have much in common, they are opposite in many important ways. While the Anglo-Saxon Law derives from Common Law, German Law has its origin in the Civil Law.

La Porta et al. are not the only ones highlighting that the quality of shareholder protection varies across different jurisdictions depending on which legal system family the jurisdiction belongs. Pistor and Siems went a step further, highlighting that variations in market systems are explainable by more fundamental factors than law, like differences in the underlying ground rules.
Casenote – Berlusconi at the European Court of Justice – C-387/02
Authors: Tacconi Flaminia
Published: March 2019

On the 3rd of May 2005, the ECJ gave judgment in the Silvio Berlusconi and Others case dealing with the provisions of the First (D68/151/EEC), Fourth (D78/660/EEC) and Seventh (D83/349/EEC) Companies Directives and the transposing Italian national provisions. The case is a preliminary ruling referred to the ECJ by several Italian courts (Tribunale di Milano, Corte d'Appello di Lecce) on the basis of Art.234 EC Treaty. It has been decided by the Grand Chamber of the ECJ, which is quite indicative of a significant judgment. Furthermore, the Grand Chamber did not follow the opinion of the Advocate General Kokott. Finally, it is interesting to note that no other government except the Italian Government contributed to the case. This last fact seems very strange having regard to the highly sensitive issue. Indeed the decision deals with the criminal sanctions for false accounting.
Economic Analysis of Article 28 EC after theKeckJudgment
Authors: Russi Luigi
Published: March 2019

European Union (EU) regulation of the free circulation of goods may be considered an eminent jurisprudential achievement; in fact, it has emerged from and been strengthened by the judgments of the European Court of Justice (hereinafter “the Court”).

In particular, the Court's engagement with the prohibition on quantitative import restrictions and other measures having an equivalent effect established by Article 28 European Convention (EC), has paved the road towards integration. This was especially true of the Court's “milestone” decisions inDassonvilleandCassis de Dijon.

The judicial parameter established by those judgments was built upon the interpretation of “quantitative restrictions” as encompassing any “measures hindering trade.” Although this has proven to be, for a limited period of time, an efficient instrument in pursuing Treaty goals, like the creation of a single European market, it has also produced a few side effects, including: (a) an excessive broadening of the field of Article 28 EC's application; and, consequently, (b) an increase in the number of claims the Court has had to examine. This has placed the Court in the position of having to weigh, more and more frequently, the content of national policies in order to determine whether the restrictions they impose can be justified.
A Close Look at the Mannesmann Trial
Authors: Maier Stefan
Published: March 2019

In German post-war history, hardly any other trial concerning economic criminal cases attracted as much interest as the so-called Mannesmann trial. This is for two main reasons. First, the facts that form the basis of the decision, that is, the hostile takeover of the German Mannesmann AG by the British Vodafone, attracted much attention and sparked public discussion about eliminating the very possibility of hostile takeovers in general in Germany. Second, interest in the case was due to the magnitude of the bonuses granted and the significance this had for the public at large. As a consequence of this trial and the settled payments, the debate around the appropriateness of executive compensations, existing prior to the case, grew more acute. After all, the current draft law to disclose executive pay resulted from these debates about the size of the compensations.
Modernization of the German Anti-Corruption Criminal Law by International Legal Provisions
Authors: Wolf Sebastian
Published: March 2019

The Gesetz zur Bekämpfung der Korruption (KorrBekG – Anti-Corruption Act), enacted in 1997, was the last measure to improve Germany's anti-corruption criminal law that was solely initiated by German political actors. Since then all amendments originated in international legal instruments. Implementing only the minimum requirements of these international provisions has led to inconsistencies within the criminal law dealing with active and passive bribery. Further anti-corruption conventions signed by the German government require additional modifications. This opportunity should be used as a starting point for a thorough reform of Germany's anti-corruption criminal law.
Discrimination in Individual-Related Employment – A View from Europe and Germany to Canada, analysing the Requirements and the Background of the European Anti-Discrimination Directives
Authors: Hoentzsch Susanne
Published: March 2019

Sometimes it seems that the EC directives could be a framework for the Canadian anti-discrimination system, too. They open ways to create procedures which are working for a long time in Canada. This does not mean this can be adopted in EC member states because there are too many peculiarities amongst domestic legislation. The problem seems to combine the directives, formed by influence from the North American legislation,130 with the European understanding of law. Especially in Germany, where employees are well protected by the law, the well-balanced system of rights is in danger. This danger does not seem to be banished by the new AGG which adopted many regulations of the directives without giving answers to questions of its implementation. But seeing the practice in other countries could bring thought-provoking impulses for the embodiment and the use of anti-discrimination law.
A Journal of the Voyage from Apology to Utopia
Authors: Orford Anne
Published: March 2019

… fulfilment of my first ambition – to describe international law in a way that would resonate with practitioner experience – necessitated that I resist the pull of either excessive “formalism” or excessive policy-oriented “realism”. In the course of writing, however, I began to realise that this way of stating the problem also contained the seeds of its resolution … I needed to think about my own experience as far from idiosyncratic and to examine the contrast between “formalism” and “realism” as an incident of thestandard experience of any international lawyerin the normal contexts of academy or practice.
Born Again Lawyer: FATU as An Antidote to the ‘Positivist Blues’
Authors: Prost Mario
Published: March 2019

For some time, there has been something paradoxical about Martti Koskenniemi's From Apology to Utopia (hereinafter FATU). FATU might very well have been the single most influential book of the last 15 years in the field of international legal theory. Virtually all of my colleagues have, at one point or another, engaged with it and used it to sustain their arguments in diverse areas of the law (including, amusingly enough, even in commercial arbitration). Yet, as is well known to most law library users, FATU has long been out of print, making it extremely difficult to find a copy, even more so when, as is periodically the case at my home university, the available copy goes missing. FATU, in other words, seemed to be everywhere, but nowhere to be found. The prophet had believers. His tables of the Law, however, seemed to have disappeared. The splendid republication of FATU comes as great news to all of us who have struggled to access, let alone to possess, this seminal book.
Martti Koskenniemi'sFrom Apology to Utopia: A Reflection
Authors: Rajagopal Balakrishnan
Published: March 2019

“International Law is what international lawyers make of it”. Thus ends the new epilogue to the second edition of Martti Koskenniemi'sFrom Apology to Utopia(hereinafter FATU), a seminal work on international law, originally published in 1989 and now republished in 2005. Shortly thereafter, he also notes the inherent situatedness of all international legal practice, citing Outi Korhonen, which has a decisive influence on how international lawyers practice their trade, whether they are formalists, antiformalists, positivists, pragmatists or naturalists. Finally, Koskenniemi notes that the main political point of FATU is an empirical one, that the system of international law has a structural bias, wherein it favors some outcomes or distributive choices over others, especially showing a bias against the South or the Third World.
An Epilogue on an Epilogue
Authors: Hoffman Florian
Published: March 2019

As the last straw, a question: where does it (From Apology to Utopia) lead us to, what are we to make of and with it (international law)? The author himself hints at an answer in the very last sentence of the Epilogue, which marks the difference between the original and this new edition of From Apology to Utopia (FATU), by pointing to his second Hauptwerk, the seminal Gentle Civilizer of Nations and the story about international lawyers it tells. Indeed, the last paragraph of FATU thereby becomes a sort of epi-epilogue, an interpretive afterthought on Gentle Civilizer, written after the original FATU, within the afterthought of FATU's new edition, written after Gentle Civilizer. The latter is taken to illustrate the consequences of FATU for both individual practitioner and academic lawyers, notably the continuous double bind between law and politics inherent in the structure of international law. That double bind demands, according to Koskenniemi, at once coolness and passion, that is, as he concludes, “a full mastery of the grammar and a sensitivity to the uses to which it is put.” This, of course, alludes once again to the twofold intent that inspires FATU: to disinter with archeological precision the grammatical structure of international law and to thereby enable its critique, or, as the author puts it in the Epilogue, to join a descriptive with a normative project. The double-edged argument that has resulted from this combination has uniquely captured the letter and spirit of international legal practice and has mesmerized the international legal profession ever since it first appeared in 1989. Together with Gentle Civilizer, it has justly made its author into one of the iconic figures of international legal theory of the intellectual fin-de-siècle of the outgoing twentieth and the incoming twenty-first century. Yet, for all the echoes FATU has been occasioning in virtually all corners of the legal theoretical spectrum, the consequences that flow from it for legal theory and practice have remained somewhat under-explored.
From Province to Protectorate to State? Speculation on the Impact of Kosovo's Genesis upon the Doctrines of International Law
Authors: Goodwin Morag
Published: March 2019

The province of Kosovo – 2 million people in 11,000 square kilometres of territory nestled between Serbia to the North and Albania and Macedonia to the South – was thrust into the international limelight when Serbian actions to repress Kosovo Albanian calls for independence made it a subject of international concern at the end of the 1990s. While Kosovo is not unique in becoming well-known for suffering the repressive actions of a parent state, and while it has not even enjoyed the distinction of being the only territorial administration of its time, it appears to be unique in its (potential) impact on the doctrines of international law. On a number of levels, the international community's response to the situation created by Milosevic's actions and NATO's intervention threaten to call fundamental pillars of the post-World War II order into question. It is too early to speculate conclusively on whether the NATO action in KosovosansSecurity Council approval in some measure paved the way for an emerging doctrine of “humanitarian intervention” that, in turn, opened the door to the illegal invasion of Iraq. It seems not implausible to suggest that the apparent success of unauthorised military intervention in Kosovo in stopping mass human rights violations emboldened politicians on both sides of the Atlantic in opting for a moral path over the formally legal one. In any event, grounded as they are in that history, the final status talks on the future of Kosovo represent a serious challenge to the current framing of the international order. It is these issues that this symposium wished to raise and examine.
Sentencing in Germany: Basic Questions and New Developments
Authors: Streng Franz
Published: March 2019

Before delving into the details of a specific German theory of sentencing, this first section attempts to very briefly outline the general framework of the sentencing process according to German law.

German law is codified law. This means that not only the individual crimes are laid down in the German Criminal Code, but also the general principles concerning sentencing are contained therein. The constitutional basis of the sentencing structure can be drawn from the notion of theRechtsstaat, which can be translated with the term “rule of law.” This principle, which is laid down in Article 20 § 1Grundgesetz(German Constitution – GG), encompasses the culpability-principle, under which the punishment must be proportionate to the individual guilt of the offender. Thus, section 46 § I of the Criminal Code (Strafgesetzbuch – StGB) reads: “the guilt of the perpetrator is the foundation for determining punishment.” The culpability-principle is a specific expression of the proportionality principle, which is also a constitutional requirement of the “rule of law.”
AvenaandSanchez-LlamasCome to Germany – The German Constitutional Court Upholds Rights under the Vienna Convention on Consular Relations
Authors: Gogolin Jana
Published: March 2019

Much attention has been given to a series of decisions by the U.S. Supreme Court regarding the effects of the decisions of the International Court of Justice interpreting the Vienna Convention on Consular Relations. On 19 September, 2006, the GermanBundesverfassungsgericht(BVerfG - German Federal Constitutional Court), has made its first judgment on the issue. The decision is significant for international law and even more specifically for U.S. jurists: Its outcome differs significantly from the U.S. Supreme Court decisions.
State-Dialogue with Muslim Communities in Italy and Germany - The Political Context and the Legal Frameworks for Dialogue with Islamic Faith Communities in Both Countries
Authors: Jasch Hans-Christian
Published: March 2019

Estimates of the number of Muslims in EU Member States vary widely, depending on the methodology and definitions used and the geographical limits imposed. Excluding Turkey and the Balkan-regions, researchers estimate that as many as 13 to 20 million Muslims live in the EU: That is about 3.5 - 4% of the total EU population. Muslims are the largest religious minority in Europe, and Islam is the continent's fastest growing religion. Substantial Muslim populations exist especially in Western European countries, including France, Germany, the United Kingdom, Spain, Italy, the Netherlands, Belgium and the Scandinavian Countries. Europe's Muslim populations are ethnically diverse and Muslim immigrants in Europe hail from a variety of Middle Eastern, African, and Asian countries, as well as Turkey. Most Muslim communities have their roots in Western Europe's colonial heritage and immigration policies of the 1950s and 1960s used to counter labor shortages during the period of reconstruction after World War II. These policies attracted large numbers of North Africans, Turks, and Pakistanis. Furthermore, in recent years, there have been influxes of Muslim migrants and political refugees from other regions and countries, including the Balkans, Afghanistan, Iraq, Somalia, and the West Bank and Gaza Strip.
Ethics, Law and the Challenge of Cognitive Science
Authors: Mahlmann Matthias
Published: March 2019

Many questions come to the mind if one starts thinking about morality and the law - questions about the epistemological or ontological status of morality, its content, motivating force or cognitive accessibility. They concern the content of norms, the enigma of justice and the demands of human solidarity. The universality, particularity or relativity of morality and material legal standards is as much an issue as the general relation of morality and the law.
Lüth's 50thAnniversary: Some Comparative Observations on the German Foundations of Judicial Balancing
Authors: Bomhoff Jacco
Published: March 2019

On January 15th2008, it was precisely fifty years ago that the First Senate of the Federal Constitutional Court (FCC) (Bundesverfassungsgericht) handed down its seminal decision in theLüthcase. TheLüthdecision can be seen as a foundational moment for at least two transformative Post-War developments in constitutional thinking that continue to influence legal systems around the world.
The Eighteenth Camel: Mediating Mediation Reform in India
Authors: Chodosh Hiram E.
Published: March 2019

In the western part of India, on the edge of the Thar Desert, a wealthy camel herdsman died, leaving his seventeen camels to his three sons. His final wishes distributed the camels to his heirs in specific proportions: one-half to the eldest, one-third to the middle son, and one-ninth to the youngest. The sons quickly appreciated the immediate obstacle to complying fully with their father's wishes. How could they make this specific distribution? They could not wait for the camels to breed; nor did they choose to sell them off and share the proceeds because herding camels was all they had ever known. Accordingly, they decided to consult their village leaders from the local panchayat. Seemingly uncertain of the appropriate solution, one of the five elders suggested that the boys accept a loan of one of his camels, go home, think it over again, and return the camel to him on the very next day. Disgruntled by the ostensible futility of this advice, they returned to their tent, under their breath cursing the stupidity of the old man.

While shaking their heads over tea, the youngest quickly rose in excitement. “Brothers,” he exclaimed, “we now have eighteen camels.” “So?!?,” the eldest mocked him, “we will have seventeen only tomorrow. What good will that do, you fool?!?” “But bhaya, with eighteen camels, we can divide them up according to the wishes of our papa: you get nine; our brother gets six; and I get two. That makes seventeen. We divide the herd, and give the eighteenth camel back to our elder!”
The Approach to European Law in Domestic Legislation
Authors: Leible Stefan
Published: March 2019

National legislators approach European law very differently. The reason for these differences lies partly in the historical development of their individual legal cultures. If one pursues a broad interpretation of the term ‘legal culture’ one takes especially into account the style of law and the attitude toward it. Thus legal culture can be defined as the Continental civil law countries’ ideal of a “concise, but comprehensive codification by which the judge can derive solutions for all possible cases through teleological interpretation;” whereas the common law rather limits this concept to “special laws which are interpreted very narrowly by the courts and accordingly are designed by the legislator to the last detail”. Furthermore, one could include the status of a judge, the nature of legal discourse, or the training of legal professionals, as well as the respect accorded to the law by the population when defining the concept of ‘legal culture'.