bluuebunny/crossref_metadata_2025 huggingface dataset:
The Emerging Principles of International Competition Law
Authors: Noonan Chris
Published: January 2009

International competition law has grown in importance as national economies have become more integrated, at the same time as national competition laws have proliferated and enforcement efforts have been strengthened. This system is beset with conflicts arising where States perceive that the way that another country does or does not apply its competition law adversely affects its interests. This book clarifies the nature and origin of these conflicts, and explores possible ways to reduce them. The legal and policy issues associated with the control of restrictive business practices and anticompetitive mergers in international markets are analysed. International cartels, dumping, private market access barriers, and mergers between international firms subject to multi-agency review are discussed. Topics include the harmonization and coordination of competition laws, cooperation between enforcement agencies, international judicial assistance, and the role of trade agreements and the WTO in international competition law. The problems that States have in regulating conduct beyond their borders and the merits of a variety of potential responses are also examined. It contends that there is an evolving international competition law system. States are only just beginning to see the system as a whole and are struggling to identify where their long-term interests lie. This book describes the elements of the system and their interactions, and explains how the system is evolving; suggesting what States, individually and collectively, could do to modify the system to their mutual advantage.
Introduction
Authors: Noonan Chris
Published: January 2009

This introductory chapter begins with a discussion of the scope of the study, covering the international competition law system, the inter-relatedness of international competition law problems, and the comprehensive coverage of international business activity. It then clarifies the meaning of some terms that are often used to describe aspects of the internationalization of law. An overview of the subsequent chapters is presented.
The Limited Case for Harmonization to Protect Competitiveness
Authors: Noonan Chris
Published: January 2009

This chapter examines the links between competition law, competitiveness, and trade policy. Section 4.1 assesses the meaning of the claim that harmonization may be justified to promote ‘fair trade’. Section 4.2 examines the case for harmonization purely on the grounds of loss of competitiveness. Sections 4.3 to 4.5 use the economic analysis of regulatory competition to identify the type of situations where harmonization could in theory improve global and national welfare.
The Competition Rules of the World Trade Organization
Authors: Noonan Chris
Published: January 2009

This chapter examines the WTO rules that require the enforcement of national competition laws or regulate the enforcement of such laws. It argues that the WTO's provisions either do not contain binding obligations, or apply only in specific situations and do not define what conduct is ‘anticompetitive’. Thus, a WTO panel may have difficulty finding that a member's conduct is inconsistent with the WTO unless it is clearly not reasoned or inconsistent with other decisions in similar cases. A number of WTO provisions prohibit anticompetitive conduct where there has been some government involvement in the creation of market power or the conduct itself. These provisions appear to reduce the ability of WTO members to authorize exceptions and create exemptions to general national competition law rules. There is also a risk that these different provisions will be interpreted as prohibiting different types of anticompetitive conduct, which creates uncertainty.
International Enforcement Cooperation and Judicial Assistance
Authors: Noonan Chris
Published: January 2009

This chapter discusses the various forms of international competition law enforcement cooperation pursued by the international community. Section 13.2 briefly surveys the existing international arrangements for cooperation on competition law. Sections 13.3 to 13.6 discuss four major international competition law issues identified in previous chapters: (1) gathering information located abroad; (2) enforcement of the judgments and orders abroad; (3) investigation of harmful conduct taking place within another country; and (4) coordination of investigations and court proceedings. It is argued that given the improbability of agreement on a global competition code and the unworkability of inter-state dispute resolution on competition law, international competition law problems need to be (and can be) addressed through enforcement cooperation between competition authorities and international judicial assistance.
Regulating Jurisdictional Relations Between National and International Courts
Authors: Shany Yuval
Published: January 2009

The book seeks to investigate the growing jurisdictional interaction between national and international courts — i.e., their parallel involvement in the same or related disputes — in the light of competing theoretical, ideological, and methodological discourses on the nature of the relationship and the means to regulate it. In particular, it aims to explore what, if any, rules of international law could, or perhaps should govern such interactions, and regulate forum selection or multiple proceedings involving national and international courts. In addition, the book explores the standards of review employed by international courts vis-à-vis the decisions of their domestic counterparts and vice versa. It posits that the regulation of such interactions ultimately depends on the selection of the overarching paradigm that governs the relations between national and international courts (hierarchical/non-hierarchical and disintegrative or integrative). Following academic discussion of the problems and solutions pertaining to the interaction between national and international courts, the book considers the potential applicability of several jurisdiction-regulating measures to jurisdictional interactions between national and international courts. These include rules on forum selection and on rules designed to regulate multiple proceedings (e.g., lis alibi pendens and res judicata), utilization of comity based measures and doctrines, such as discretionary stay or dismissal of proceedings and margin of appreciation judicial review, and examination of the prohibition against abuse of rights. This segment of the book strives to provide lawyers and academics with a ‘tool kit’ of measures which could be employed in cases involving jurisdictional interactions between national and international courts.
The Fragmentation of International Law
Authors: Shany Yuval
Published: January 2009

This chapter identifies and discusses two principle strategies employed by judges in national and international courts: disintegrationism and integrationism. Disintegrationism involves the division of one complex dispute into a multiplicity of mini-disputes arising under different specific legal regimes and the application of the distinct norms of one specific legal regime to one aspect of the dispute, excluding other relevant norms or circumstances; integrationism encourages judges to adopt a comprehensive approach towards different, yet closely related, disputes and to apply all relevant norms to all related circumstances. The chapter then draws an analogy between the debate over the fragmentation of international law into distinct self-contained regimes and the choice between disintegrationism and integrationism, and describes dualism (and to a lesser degree hierarchy) as a disintegrationist strategy.
The Feasibility of Regulation: Do National and International Proceedings Overlap?
Authors: Shany Yuval
Published: January 2009

This chapter sets out the conditions under which jurisdiction interaction between national and international courts may be feasible. First, one has to ascertain that the courts in question operate in a non-hierarchical context. This is sometimes facilitated by identification of hierarchy or non-hierarchy signifiers. Second, the applicability of any international jurisdiction regulating norm depends on the ability of the relevant courts to invoke international law. Third, the two related proceedings need to exhibit a considerable degree of similarity, specifically, involve the same parties and same issues. The chapter discusses the unique challenge of applying these conditions across the conceptual divide between national and international institutions and the different characteristics of the respective legal systems. It concludes that only a flexible approach to the tests of similarity could facilitate the application of jurisdiction regulating rules to the relations between national and international courts.
3 Authentic Learning and Receiving—A Search for Criteria
Authors: Örsy, SJ Ladislas
Published: January 2009

Receptive learning among Christian churches is authentic only when it is marked by truth and transfused by prudence. A community that is intent on receptive learning must first learn about valuable insights and praiseworthy practices in another church, and only then can the community receive them into its existing tradition. To bring such a process to a good resolution requires norms for authenticity. This chapter discusses these norms, specifically, preserving identity, true and false reception, and prudent and imprudent reception.
8 What Roman Catholics Have to Learn from Anglicans
Authors: Pecklers, SJ Keith F.
Published: January 2009

This chapter explores the gifts that Roman Catholics have to receive from Anglicans under four headings: church, authority, worship, and spirituality. It argues that as we seek a way forward, there is much that we can learn from one another's churches and there is much that we can do in the concrete visibly to express our common faith in Jesus Christ.
11 The International Lutheran—Roman Catholic Dialogue—An Example of Ecclesial Learning and Ecumenical Reception
Authors: Rusch William G.
Published: January 2009

This chapter gives a short history and review of the international Lutheran–Roman Catholic dialogue, including its results, development, and methodology. It then demonstrates how this dialogue may be viewed as an example of ecclesial learning and ecumenical reception by the sponsoring churches.
12 Catholic Learning and Orthodoxy—The Promise and Challenge of Eucharistic Ecclesiology
Authors: McPartlan Paul
Published: January 2009

This chapter focuses on the very fruitful decade for international dialogue between Catholics and Orthodox, namely, the 1980s, which saw the production of three major agreed statements: ‘The Mystery of the Church and of the Eucharist in the Light of the Mystery of the Holy Trinity’ (1982); ‘Faith, Sacraments and the Unity of the Church’ (1987); and ‘The Sacrament of Order in the Sacramental Structure of the Church’ (1988). In particular, it highlights the ten years from the first agreed statement of 1982 to the production of the Catechism, and the many resonances that exist between the latter's teaching and the statements of the dialogue.
13 Catholic Learning Concerning Apostolicity and Ecclesiality
Authors: Puglisi, SA James F.
Published: January 2009

This chapter reviews some of the learnings gleaned from the various ecumenical discussions that have taken place on the theme of apostolicity. It is shown that there is now a general consensus about apostolicity, namely: that first and foremost apostolicity is applied to the whole church and not just to some elements of the church. In general, all recognize the place of the apostolic ministry within the apostolicity of the whole church. It is also recognized that there is an intimate relationship between the apostolic continuity of the whole church and the apostolic succession of the ministry.
14 The Holy Spirit as the Gift—Pneumatology and Catholic Re‐reception of Petrine Ministry in the Theology of Walter Kasper
Authors: Edwards Denis
Published: January 2009

Two issues have dominated the discussion of Catholic ecumenical receptivity: first is the general need for western receptivity to the East with regard to a proper balance between pneumatology and Christology; second is the particular, strategically important issue of Petrine ministry. This chapter argues that the pneumatological theology of Walter Kasper illuminates both issues. It traces his Spirit theology from his Christology to his Trinitarian theology and his view of the church, then presents an example of this pneumatology at work in ecumenical theology — the critical issue of the Petrine ministry.
19 Receptive Ecumenism and Recent Initiatives in the Catholic Church's Dialogues with the Anglican Communion and the World Methodist Council
Authors: Bolen Donald
Published: January 2009

This chapter begins by looking at the methodologies adopted and developed within the Roman Catholic Church's dialogues with the Anglican Communion and the World Methodist Council, reflecting on aspects attentive to ecumenical learning, and which to some degree could be adapted or replicated in other contexts. It looks at recent initiatives within Anglican–Roman Catholic relations, in particular, the work of the International Anglican–Roman Catholic Commission for Unity and Mission, as a means of bridging the gaps mentioned above. It then considers recent developments in Methodist–Catholic relations, focusing on a mutual exchange of gifts in the most recent statement of the Joint International Commission for Dialogue Between the World Methodist Council and the Roman Catholic Church. Finally, the chapter offers concluding reflections on Receptive Ecumenism in the light of these dialogues.
23 Receptive Ecumenism, Ecclesial Learning, and the ‘Tribe’
Authors: Sweeney, CP James
Published: January 2009

This chapter addresses the following questions: How can the underlying processes of communal identity formation be accommodated? How will it be possible to get beyond the simple tribalism of establishing identity over, against, and, even hostile to, the foreign ‘other’? Can we envisage a shift in favour of an ‘ecumenical tribe’? These questions are explored in four movements: Catholic identity, between the universal and the particular; receptive ecumenical learning: the overcoming of tribal prejudice; irreducible difference: the limits of receptive ecumenical learning; and discerning the conditions for receptive ecumenical learning.
25 Receptive Ecumenism and Catholic Learning—an Orthodox Perspective
Authors: Louth Andrew
Published: January 2009

This chapter presents an Orthodox response to the suggestions by Paul McPartlan and Joseph Famerée as to what Catholics might learn from the Orthodox. It argues that such learning is not a one-way process, and that ‘eucharistic ecclesiology’, in particular, should be seen as a striking example of Receptive Ecumenism on the part of both Roman Catholics and Orthodox.
26 Anglicanism and the Conditions for Communion—A Response to Cardinal Kasper
Authors: Sagovsky Nicholas
Published: January 2009

This chapter presents a response to Cardinal Kasper's question: How it is possible ‘to designate Scripture and the Apostles’ and Niceno–Constantinopolitan Creeds as normative in the Chicago–Lambeth Quadrilateral, but to disregard the binding force of the subsequent living tradition? It argues that Anglicans, though they do not define, or make explicit, the binding force of the living tradition, as Roman Catholics do, by no means disregard it. At the moment they are far from united on how that ‘binding force’ may be discerned, but they cannot see in other Christian traditions the specific gift or gifts that can resolve this crisis in communion.
28 Receptive Ecumenism and Catholic Learning—Reflections in Dialogue with Yves Congar and B. C. Butler1
Authors: Flynn Gabriel
Published: January 2009

Cardinal Yves Congar (1904-95) and Bishop Basil Christopher Butler (1902-86) were both dedicated to the renewal of Catholic Learning and to the promotion of Christian unity. Butler, a convert to Catholicism, followed a more ‘conservative’ line than Congar. For his part, Congar, the leading figure of the Catholic ecumenical movement in France and a member of the Catholic–Lutheran Commission of Dialogue since 1965, was profoundly influenced by Lutheran theology in the formulation of his later ‘progressive’ stance on ecumenism. This chapter explores the themes of Receptive Ecumenism and Catholic Learning as they relate to the thought of Congar and Butler, respectively. It also seeks to extrapolate ethical implications for the present-day ecumenical movement. Specifically, it attempts to draw Congar and Butler into dialogue on the central doctrine of the incarnation, regarded by the former as ‘the key to the whole mystery of the Church’.
29 Receptive Ecumenism and the Hermeneutics of Catholic Learning—The Promise of Comparative Ecclesiology1
Authors: Mannion Gerard
Published: January 2009

This chapter utilizes the methodology of comparative ecclesiology towards the end of eliciting further the enormous potential of the proposed strategy of Receptive Ecumenism. It identifies postmodern ecclesial polemics as a major obstacle to such dialogue and openness flourishing today. It explores ways in which such polemics might be transcended with a view to developing a ‘wider’ or ‘macro-’ ecumenism. It goes on to suggest that the fledgling sub-discipline of comparative ecclesiology offers the most promising starting-point for churches wishing to embrace dialogue, openness, and pluralism, as opposed to retreating inwards. Here the work of Roger Haight looms large. Finally, the chapter offers some reflections on how exactly the church might and should be a hermeneutical community.
30 Receptive Ecumenism—Learning by Engagement
Authors: Hardy Daniel W.
Published: January 2009

Receptive Ecumenism opens the Roman Catholic Church to what may be learned through encounter with other Christian traditions, which denotes a readiness to place that church amongst the churches in a fashion parallel to the Second Vatican Council's renewal of Catholicism's engagement with history. It also engages with the ecclesiological and theological questions which arise for and from the church as it confronts secular counterparts and postmodern critique. This chapter argues that we must explore what this might mean, and what the fuller implications of such encounter might be, in the hope of making Receptive Ecumenism not only more effective for the Roman Catholic Church, but also beneficial for all the churches.
Introduction
Authors: Lowe E. J.
Published: January 2009

This introductory chapter highlights the main theses defended in the book, beginning with those of Part II, and provides a brief overview of each chapter. It is made clear that the dualistic philosophy of mind defended in Part I can be accepted independently of the theory of rational action developed in Part II, but that the latter presupposes the truth of the former.
The Self as an Emergent Substance
Authors: Lowe E. J.
Published: January 2009

This chapter explains why traditional arguments in favour of substance dualism are avoided in this book. In their place a new argument is presented which, however, supports only a non-Cartesian version of this view, according to which beings like ourselves — persons or, more generally, subjects of experience — are bearers of both psychological and physical properties, while nonetheless being distinct from our biological bodies and any parts of them. It is then explained why this view is well-suited to accommodating the dualistic psychophysical interactionism defended in the earlier chapters. The chapter concludes with a new and intuitively compelling argument against physicalist theories of mind. This completes Part I of the book.
Event Causation and Agent Causation
Authors: Lowe E. J.
Published: January 2009

This chapter begins by characterizing event causation and agent causation, and then looks at strategies for attempting to reduce one of these species of causation to the other. In the end, arguments are presented in favour of the view that talk in terms of event causation — to the extent that it should strictly be countenanced at all — is best understood as elliptical for talk in terms of agent causation, although only where the word ‘agent’ is very broadly construed, rather than being confined in its application to the much narrower class of rational agents, ourselves included.
Human Rights-Based Approaches to Development: Towards Accountability
Authors: Twomey Patrick
Published: January 2009

This chapter outlines the core concepts of human rights-based approaches (HRBAs) and explores the evolution of human rights-based approaches to development including the United Nations (UN) commitment to integrate human rights into all its work, national development plans, the role of socio-economic rights in development problem analysis, impact assessment, and key challenges to undertaking human rights-based development. The chapter also highlights the issue of measurement of human rights change as a critical factor in development planning, implementation, and evaluation towards ensuring accountability for both process and impact.
The Applicability of Economic and Social Rights to the UN Security Council
Authors: White Nigel D.
Published: January 2009

This chapter examines the applicability of economic, social, and cultural rights (ESC rights) to the UN Security Council, to determine whether it is bound to respect human rights law generally, and ESC rights in particular, when acting under Chapter VII of the UN Charter. This includes instances when it imposes economic sanctions against states and against individuals (such as those suspected of terrorism), and when it establishes a post-conflict administration in a state. It is argued that while the primary rules of international law, including fundamental economic and social rights, are applicable to the activities of the Security Council, the UN system is woefully inadequate in ensuring the accountability of the Security Council in this, or in any other, regard.
Economic and Social Interests and the European Convention on Human Rights
Authors: Warbrick Colin
Published: January 2009

This chapter argues that, with the exception of the right to education, the European Convention on Human Rights (ECHR) does not protect economic and social rights. The chapter does not dispute that there may be overlaps between certain civil and political rights and economic and social rights. For instance, the trade union aspects of the political right of association with the economic right to organize for the protection of workers' interests; but they are not the same thing. Certainly they are not the same in the ECHR and the European Social Charter (ESC). It argues that what the Convention sometimes protects are economic and social aspects of explicit Convention rights. For instance, protection against state-inflicted destitution as an aspect of article 3; but again, this is not the protection of an economic and social right to social security or even to social and medical assistance.
The United Kingdom and the International Covenant on Economic, Social and Cultural Rights
Authors: Bates Ed
Published: January 2009

This chapter explores how the International Covenant on Economic, Social and Cultural Rights (ICESCR) has been of relevance for the British government in recent years and the British government's view on the nature and status of Covenant rights, in particular their susceptibility to incorporation into domestic law. It looks at the 1996 UK Report to the Committee on Economic, Social and Cultural Rights (ESCR Committee) under the Conservative administration and the 2001 UK Report under the ‘new’ Labour administration. It shows that both these reporting rounds revealed a significant disparity of views between the ESCR Committee and the British government as regards the susceptibility of Covenant rights to incorporation into UK law.
Democracy and the Promotion and Protection of Socio-Economic Rights
Authors: Burchill Richard
Published: January 2009

This chapter examines the relationship between democracy and economic, social, and cultural rights. It discusses the problems that have arisen in the international legal discourse due to the minimalist understanding of democracy as equating to a limited range of civil and political rights. A case is made for a definition of democracy that explicitly encompasses socio-economic rights as integral features. The chapter then examines the extent to which international human rights law has moved beyond these conceptions through an examination of the International Covenant on Economic, Social and Cultural Rights. It argues that for human rights and democracy to live up to their promised deals, socioeconomic rights need to be given much greater attention in a way that places them at the centre of concerns for human dignity and development.
Trade to Live or Live to Trade: The World Trade Organization, Development, and Poverty
Authors: Joseph Sarah
Published: January 2009

This chapter addresses two anti-WTO critiques. First, it examines the argument that current WTO rules are biased in favour of developed states. Second, it examines the argument that trade liberalization, which has been facilitated, but certainly not completely achieved, by the WTO, is good for the poor, particularly in the developing world. The differing interests of the North and South are also discussed, bearing in mind that losers from economic globalization and poverty exist in developing and industrialized states. Finally, the chapter suggests a reform proposal which addresses some of the major Southern concerns, whilst also taking into account some of the concerns of Northern progressive groups.
The Right to Development as Applied in National Law
Authors: Ansah Jane
Published: January 2009

This chapter examines the legal status of the right to development in international law and its inclusion as an ESC right. This is applied to the particular national example of Malawi, which has the right to development protected by its Constitution. It is shown that the main obstacle for the realization of the right to development within states is the lack of equitable policies and programmes for distribution and redistribution of resources, which, if remedied, should result into the elimination of power inequalities.
The Changing Role of the Advocate General
Authors: Sharpston Eleanor
Published: January 2009

This chapter discusses the changing role of the Advocate General. Essentially, the Advocates' General contribution is, and remains, quasi-judicial. The Court does not deal with EU law in the abstract; it decides cases. The Advocates General helps it perform that job as effectively as possible. In so doing, they also help to place the Court's decision-making in a wider context. They can make use of the individual freedom that they enjoy to explore, to advise and to warn. Provided the role of the Advocate General is enabled to evolve sensibly, Advocates General are as relevant now as when the Court was founded.
The EFTA Court, the ECJ, and the Latter's Advocates General – a Tale of Judicial Dialogue
Authors: Baudenbacher Carl
Published: January 2009

This chapter focuses on the judicial dialogue between the European Court of Justice (ECJ), its Advocates General and the European Free Trade Association (EFTA) Court. The results produced by the cooperation between the ECJ and the EFTA Court are considered a true paradigm for international cooperation between judicial institutions. The European Economic Area (EEA) type of dialogue is affirmative in nature, as far as the ECJ is concerned; and the framework conditions for judicial cooperation in the EEA are particularly favourable.
Continuity and Change in the Law Relating to Services
Authors: Edward David , Shuibhne Niamh Nic
Published: January 2009

This chapter examines the meaning of ‘services’ in the Treaty, and how the law on services fits into the more general law of the internal market. It argues that this neglected area of free movement law, particularly as regards its future development, deserves greater attention on the part of explorers.
Equal Before the Law? Not if You Want to Register a Trade Mark
Authors: Keeling David T
Published: January 2009

This chapter examines the principle of equal treatment as it applies to trade mark. It argues that trade mark registration is in danger of becoming a lottery; the danger can only be averted if the CFI and ECJ start stressing the Office's duty to act consistently, to apply common standards, to identify analogous cases and to give them similar treatment. The CFI and ECJ also need to understand that genuine consistency in decision-making practice can only be achieved at the purely administrative level.
About Rules and Principles, Codification and Legislation, Harmonization and Convergence, and Education in the Area of Contract Law
Authors: van Gerven Walter
Published: January 2009

Experts in contract law from different Member States have drafted two volumes of Principles of European Contract Law, which are based on ‘rules’ contained in the contract laws of the EU Member States. But contrary to the (unformulated) principles referred to in Article 288(2) EC, they are worded in very precise terms, and structured and numbered in the same way as articles are in a ‘civil code’. This chapter argues that the aforementioned Principles of European Law are rules, not principles. Moreover, taken together they form a fully fledged European Code of Contract Law — or, more appropriate, it would seem, a European Contract Law Act.
An Overture
Authors: Bell Christine
Published: January 2009

This chapter sets out the book's aims and objectives as to provide a legal account of peace agreements as potentially legal documents with a role for legal enforcement, and peace agreements as subject to the regulation of international law. It forms an overture to the book, pointing to the book's central argument that the legal status (or not) of peace agreements and their relationship to international law are closely linked in ways that cannot easily be separated, and have operated so as to produce an emerging ‘law of the peacemakers’ or lex pacificatoria.
The Rise in Peace Agreements and International Law
Authors: Bell Christine
Published: January 2009

This chapter examines the argument that there has been a rise in negotiated settlement, particularly as a response to conflicts within states, post the end of the cold war around 1990. It is argued that to the extent that the post 1990 rise of peace agreements was a real one, it was propelled by international legal developments in the area of self-determination law, human rights law, and peacekeeping.
Peace Agreement Obligations
Authors: Bell Christine
Published: January 2009

This chapter examines whether and how peace agreement language aims to induce compliance through the way in which provisions are framed. This examination confirms the importance of precision to certain types of peace agreement obligation, but demonstrates how peace agreements rely equally on constructive ambiguity. Here too lies an alternative challenge for drafting of peace agreement obligations. Rather than a challenge of attempting to maximise precision over ambiguity, this challenge lies in the difficulty of crafting obligations that will serve both short term ceasefire commitments and longer term conflict transformation goals, and assists a transition between the two. Thus, precision has drawbacks in limiting the peace agreement's development in the long-term, while constructive ambiguity can be used to begin to build shared constitutional frameworks in divided societies.
Peace Agreement Third Party Enforcement
Authors: Bell Christine
Published: January 2009

Delegation of powers of interpretation and enforcement to third parties constitutes the third dimension of legalisation of agreements. The argument is that the more third parties are given powers to interpret and ‘enforce’ agreements, the more these agreements are legalised. Independent third parties with clear decision-making authority and enforcement powers (such as courts) are understood to promote compliance. This chapter argues that while peace agreements use of third parties in the same ways as other agreements, they cannot be fully understood in terms of conventional assumptions about when and how third party enforcement operates most effectively. Rather, peace agreements use ‘hybrid legal pluralism’ — that is multiple institutions which straddle the law/politics divide and contain both international and domestic actors — to enable a broad range of diverse international participation in peace agreements. Thus, they acknowledge the ‘third party’ as simultaneously guarantor, mediator, administrator, ‘actual’ party, and norm promoter, and enable third party actors to shift the emphasis between these different functions as circumstances and legitimacy require.
The New Law of Hybrid Self-determination
Authors: Bell Christine
Published: January 2009

This chapter explores how peace agreement content is regulated by international law. It begins by examining self-determination law as relevant to the constitutional and territorial arrangements of peace agreements. The chapter argues that the combination of conflict settlement and normative framework has produced a new practice which is taking on the form of a ‘new law’ of self-determination. This new law stands, not as established law, but as a normative expectation with regard to how self-determination disputes will be resolved, whose normative ‘creep’ can be seen in state practice and the reasoning of international tribunals.
Lex Pacificatoria: Marriage of Heaven and Hell
Authors: Bell Christine
Published: January 2009

This concluding chapter summarizes and brings together the book's central argument for a lex pacificatoria as a new law of the peacemakers. It proposes an ambivalent response to the new lex, and concludes by suggesting a concept of law that is necessary to ‘doing good’ in peace negotiations and when working to implement peace agreements. This concept of law involves six key commitments: to legal pluralism, constitutional pluralism, to recognition of law's performative dimension, to negotiated justice, complex accountability, and to enabling moral and political imagination.
Privileged Access and the Mark of the Mental
Authors: Farkas Katalin
Published: January 2009

Our conception of the mind is essentially shaped by the Cartesian theory, and this book suggests this should be embraced, rather than overthrown. The chapter argues that we can abstract a method for distinguishing mental and non-mental features from Descartes's Second Meditation, which bears the title: ‘The nature of the human mind, and how it is better known than the body’. Different cognitive faculties are distinguished. Only one of them has the following feature: it enables the subject to know its subject matter in a way that no-one else who is endowed with the same cognitive faculty, can. Everything that is known through the use of this faculty belongs to the mind. Privileged accessibility is the mark of the mental.
Indiscriminability
Authors: Farkas Katalin
Published: January 2009

The following terminology is introduced in this chapter: ‘indiscriminability’ is a possibly non-transitive epistemic relation; ‘sameness of appearance’ is the transitive relation of the identity of phenomenal properties. The ‘fitting relation’ is the relation constitutive of Twin situations (same as the relation of ‘subjective indistinguishability’ of the previous chapter). This chapter distinguishes various notions of indiscriminability: active indiscriminability is the inability to activate knowledge that things are distinct; access indiscriminability is compatibility with everything the subject knows; and response indiscriminability is the sameness of cognitive responses. It is argued that none of these can be used to define the fitting relation. An objection against the notion of phenomenal properties based on the possibility of a phenomenal sorites series is considered and answered. The conclusion is that subjective indistinguishability cannot be defined in epistemic terms; instead, has to be defined as sameness of phenomenal properties.
Externalism and Privileged Self‐Knowledge
Authors: Farkas Katalin
Published: January 2009

This chapter shows that externalism is incompatible with the claim that all mental features are accessible in a privileged way. All and only phenomenal properties of conscious events give rise to perspectival facts, which are precisely the facts that are open to privileged access. Phenomenal properties are shared by subjects in Twin situations. According to externalists, mental features are determined by factors that go beyond phenomenal properties, and hence they do not register within the subject's point of view. Compared to internalism, externalism limits privileged accessibility. The chapter also criticises the account of self-knowledge based on the fact that some reflective thoughts are conceptually self-verifying, evaluates the argument based on the so-called ‘travelling cases’ for the incompatibility of externalism and self-knowledge, and discusses the relation between discrimination and introspective knowledge.
Reference and Sense
Authors: Farkas Katalin
Published: January 2009

Even philosophers who are sympathetic to internalism believe that a full account of intentionality or representation requires two kinds of intentionality: phenomenal and externalistic; or two kinds of content: narrow and broad. It is argued that the source of this conviction is an unnecessarily restrictive interpretation of the doctrine — going back to Frege — that sense should determine reference. On the restricted interpretation, sense alone determines reference, but very few philosophers agree with this today. Once we understand the doctrine more liberally, requiring only that sense determines reference relative to some external factors, we make room for a single notion of completely internal content. The resulting view of content is similar to the position known as ‘non-indexical contextualism’ in another debate. Once the doctrine that sense determines reference is understood properly, the Twin Earth argument turns out to be inconclusive, and the need to posit an externally individuated content disappers.
Introduction
Authors: McNamara Lawrence
Published: January 2009

This introductory chapter outlines the current legal framework and its shortcomings, and explains how the book uses reputation as the point of reference for analysing, evaluating, and proposing a revision of the law that governs determinations of what is defamatory. In spite of the axiom that defamation law aims to protect reputation, the common law has no principled, theoretically coherent statement of law regarding what is defamatory. This is so because there has not been sufficient attention paid to the nature of reputation or to the relationship between reputation and defamation. Without a satisfactory account of reputation, the law that seeks to protect it is bound to be inadequately conceived. The question posed takes a very particular form, with the premise itself being a critical issue: if reputation is the interest to be protected by defamation law, then what should be the test(s) for what is defamatory?
Reputation and Community: The Centrality of Moral Judgment
Authors: McNamara Lawrence
Published: January 2009

Without a clear sense of what reputation is, it will be difficult to make a judgment about the manner and extent of its protection under the law. To that end, this chapter commences the inquiry with the aim of theorizing reputation. That is, it sets out to articulate the nature of the interest that the law seeks to protect. The selection of reputation, rather than defamation, as the analytical category is explained. A definition of reputation proposed that identifies community as the form of association upon which reputation rests, and it is argued that moral judgment is the central feature of reputation. This provides the best basis on which both reputation and defamation can be understood, and lays the foundations for the later resolution of some of the legal choices that the courts must make with respect to the scope and limits of protection for reputation.
Moral Judgment and Conceptions of Reputation
Authors: McNamara Lawrence
Published: January 2009

This chapter asks how the conceptions of reputation in the literature (and especially those in Robert Post's work) can be of assistance in understanding the nature of reputation. Section I examines and rejects the proposition that reputation is a form of property. Section II eschews the conception of reputation as honour in favour of a more richly rewarding inquiry into honour as a concept. Drawing on historical and anthropological work. It argues that honour can best be understood in terms of the ‘moral taxonomies’ that underpin judgments of social and self-worth in a community. The connections between social and self-worth, and between honour, reputation, and dignity, suggest that the idea of a moral taxonomy will also be a useful way to think about honour and dignity, and about reputation and its relationships to defamation law.
The ‘Shun and Avoid’ Test as the Basis for Actionability
Authors: McNamara Lawrence
Published: January 2009

It is commonly said that the supplementary ‘shun and avoid’ and ridicule tests are distinguished from the principal test because words can be actionable under these tests even if they do not suggest that the plaintiff has been at fault. The distinction is said to be supported by authority that goes back to the time before the common law's claim to protect reputation was firmly established. The analysis of the ‘shun and avoid’ test in this chapter is structured around these two themes of moral fault and precedent. A study of imputations regarding chastity, disease, and insanity leads to a rejection of the moral fault distinction in favour of a focus on moral worth, and shows that the ‘shun and avoid’ test has little basis in precedent. Accordingly, there needs to be a substantial revision of the place the ‘shun and avoid’ test occupies in the contemporary legal framework.
The Ridicule Test as the Basis for Actionability
Authors: McNamara Lawrence
Published: January 2009

This chapter examines how a publication is actionable under the ridicule test, and the extent to which the test protects reputation. The formation of the test from 1680-1936 shows no clear sense of why or in what circumstances ridicule could be the basis for a defamation action, even as the test came to have a wide scope and much room for flexibility in its application. In 1936, the American courts attempted to discern and articulate some rationale for the test Burton v Crowell. This marked an expansion of the law as publications would be actionable when they damaged a plaintiff's sense of self-worth regardless of whether their reputation was affected, and this became a settled part of the law in the later 20th century. The chapter argues that the flaws, exhibited most markedly where satire is concerned, require that the test be disposed of.
8 East Africa
Authors: Charles Parkinson
Published: January 2009

The East African dependencies of Tanganyika, Uganda, and Kenya were the location of the final stage in the development of the Colonial Office policy on bills of rights. In Kenya, there was a minority European settler community that wanted a bill of rights, so the British Government agreed to a bill of rights for Kenya's pre self-government constitution of 1960. Once it was decided that a bill of rights would be the main protection for the European population in Kenya at independence, the British Government decided to use Tanganyika to establish a precedent for Kenya. But Tanganyika firmly rejected a bill of rights despite pressure from the Colonial Office. The British Government then obtained its bill of rights precedent for Kenya without controversy in the Ugandan independence constitution. Finally in Kenya's independence constitution of 1963, a bill of rights to protect the European settlers was inserted without local dissent.
9 Epilogue: a policy on bills of rights
Authors: Charles Parkinson
Published: January 2009

This chapter explains how the Colonial Office formalized its policy towards bills of rights in its overseas territories as an official policy in 1962. It traces the application of this policy throughout the British overseas territories to the present dates and, the current status of all territories' bills of rights is set out in an appendix. The chapter also examines the subsequent history of the colonial bills of rights.
Buying Social Justice
Authors: McCrudden Christopher
Published: January 2009

Governments spend huge amounts of money buying goods and services from the private sector. How far should their spending power be affected by social policy? Arguments against the practice are often made by economists — on the grounds of inefficiency, and lawyers — on the grounds of free competition and international economic law. Buying Social Justice analyses how governments in developed and developing countries use their contracting power in order to advance social equality and reduce discrimination, and argues that this approach is an entirely legitimate and efficient means of achieving social justice. The book looks at the different experiences of a range of countries, including the UK, the USA, and South Africa. It also examines the impact of international and regional regulation of the international economy, and questions the extent to which the issue of procurement policy should be regulated at the national, European or international levels. The role of EC and WTO law in mediating the tensions between the economic function of procurement and the social uses of procurement is discussed, and the outcomes of controversies concerning the legitimacy of the integration of social values into procurement are analysed. Buying Social Justice argues that European and international legal regulation of procurement has become an important means of accentuating the positive and eliminating the negative in both the social and economic uses of procurement.
International and European Procurement Regulation
Authors: McCrudden Christopher
Published: January 2009

This chapter presents an introduction to the international and European procurement regimes. Topics discussed include the origins of international and European procurement regulation, the Government Procurement Agreement, procurement by the European Community, the growth of neo-liberalism and further European procurement reform, and the European procurement reforms of 2003.
Set-asides in the United States and Canada
Authors: McCrudden Christopher
Published: January 2009

This chapter examines different schemes that link the award of contracts to programmes that advantage particular status groups that are considered to be economically disadvantaged by giving preferences to businesses that are owned or controlled by such groups in the award of contracts, so-called ‘set-asides’. It begins by examining the development of set-asides in the United States, including the significant legal challenges to such schemes under the United States Constitution. It then considers the development in Canada of set-asides favouring Aboriginal-owned businesses.
Procurement Linkages and the 1980s Reform of EC Procurement Regulation
Authors: McCrudden Christopher
Published: January 2009

This chapter examines the approach taken to domestic procurement linkages during the first wave of European procurement reforms of the 1980s. It begins by examining the extent of equality-promoting domestic procurement linkages in EC Member States just prior to these reforms. It shows that such linkages were particularly in play in Britain, Northern Ireland, and Germany.