bluuebunny/crossref_metadata_2025 huggingface dataset:
Negative and Positive Integration in EU Economic Law: Between Strategic Denial and Cognitive Dissonance?
Authors: Caro de Sousa Pedro
Published: March 2019

It is a generally held assumption that the EU economic free movement rights are tools in the creation of a European internal market; and that their main goal is the (negative) market integration of different national markets. Yet these freedoms do not determine how market integration is to proceed, or which kind of integrated European market will emerge. The resulting market may be more or less regulated, and the creation of the relevant regulatory rules may be allocated to a variety of sources. These options are reflected in the different proposed tests used to determine whether a national measure prima facie infringes one of the market freedoms. The proposed tests fall into two main categories—broad tests and narrow tests—and each type has its own implications for European integration. Broad tests, usually associated with obstacle tests or even with economic due process clauses, tend to be seen as having three main outcomes. One result of broad tests is centralization, implying that ultimate decisions concerning the legitimacy of national law rests with EU institutions, and particularly with the Court of Justice of the European Union (“the Court” or “CJEU”). Another outcome of broad tests is the possible harmonization of national laws through the European political process by increasing the amount of national legislation susceptible to being harmonized under Articles 114 to 118 on the Treaty on the Functioning of the European Union (“TFEU”). A third consequence of broad tests is deregulation through the elimination of national rules creating obstacles to trade. Alternatively, narrow approaches-usually associated with discrimination or typological tests-are usually coupled with regulatory pluralism via a greater degree of control of the harmonization competences of the EU, decentralization through the protection of a greater sphere of Member States' autonomy, and economic agnosticism. Views on the potential outcomes of broad and narrow tests are, in turn, related to normative debates about the ideal levels of centralization, harmonization, and regulation in the internal market.
Environmental Policy “Outside-In”: How the EU's Engagement with International Environmental Law Curtails National Autonomy
Authors: Eckes Christina
Published: March 2019

The EU legal system, with its many hands and complex architecture, in which national and European powers are closely interwoven, requires a particular form of cooperation. This delicately developed cooperation may be influenced by the EU's ambition to take a statelike role in international relations. Indeed, the basic assumption underlying this Article is that it is not only the EU's complexity that influences the EU's external actions—usually seen as limiting the EU's capacity to speak with one voice—but also that the EU's external actions influence its internal set-up and cooperation practices. As a result of the EU's participation in international legal regimes, established organizational principles might come under pressure. Furthermore, within the complexity of the European legal order, the potential consequences could be more disturbing for stability than within the—monolithic, in comparison—structure of states.
What About Psychological Actors? Behavioral Analysis of Equator Principle Adoption and its Implications*
Authors: Chan Matthew
Published: March 2019

In 1976, MGM releasedNetwork, a satirical film about a news anchor (played by Peter Finch) so frustrated by the state of the television industry and by society in general that he couldn't stop himself from lashing out in the midst of an evening broadcast. He was “mad as hell”, and it was with this impassioned rage and his everyman sensibilities that he was determined to move the television watching nation. Nevertheless, for all his conviction, Finch's character was destined to fail. In the penultimate scene of the film, Finch is confronted by the television network's chairman of the board (played by Ned Beatty).
Canadian Mining Companies and Domestic Law Reform: A Critical Legal Account*
Authors: Kamphuis Charis
Published: March 2019

In the last decade, Canada has become the most important home jurisdiction for mining companies operating globally. Certain Canadian NGOs, faith groups and labor unions argue that these activities systematically give rise to conflicts between companies and local communities in circumstances where companies frequently enjoy effective impunity for the human rights violations they may commit. This assessment has prompted these groups and other likeminded actors to advocate for a series of law reform proposals.
Transnational Governance Models: Codes of Conduct, and
Monitoring Agencies as Tools to Increase Workers' Rights
Authors: Sukdeo Vanisha
Published: March 2019

This paper critically explores how to implement changes to corporate
behavior in regard to labor-related issues through codes of conduct (“code”
or “codes”) that would strengthen the rights of workers. The corporation
essentially allows for its own reformation from within. There are many ways
the link between corporate governance or corporate social responsibility
(“CSR”) and workers' rights can be explored. The term CSR is used to
differentiate from the alternate shareholder primacy model of a corporation
existing solely for its shareholders and to increase profit. It stands for
the idea that corporations have duties to other stakeholders beyond
shareholders. Those stakeholders include, but are not limited to, employees
and those who produce goods and provide services, environmental agencies,
and government. Codes are a soft law mechanism that may be used to create a
voluntary standard or set of rules to which corporations are bound. While
this may be viewed as rather insubstantial compared to legislation, codes
have value in terms of allowing the two (or more) parties that are bound by
the code to have direct input in drafting the code. While the inherent
imbalance of power involved in the dynamics of the employment relationship
between management and workers must be acknowledged and must have an impact
on the creation of the code, it does allow for involvement at a level which
legislation does not. Part two of this paper examines governance models,
Part three discusses codes of conduct as a private regulatory framework, and
Part four shows how monitoring agencies are used to ensure compliance with
codes.
Remarks at the Opening of the Symposium Celebrating the 10th Anniversary of the German Law Journal – German Federal Bar (BRAK)
Authors: Filges Axel C.
Published: March 2019

I am delighted to be here to celebrate with you the tenth anniversary of the German Law Journal. The mere existence of a publication like the German Law Journal is remarkable, but what is even more impressive is that it is of such a high intellectual quality.
Beyond Predictability – Reflections on Legal Certainty and the Discourse Theory of Law in the EU Legal Order
Authors: Paunio Elina
Published: March 2019

Legal certainty requires a balance between stability and flexibility. Following the hermeneutical footsteps of legal theorists such as Aulis Aarnio and Alexander Peczenik, a distinction can be made between formal and substantive legal certainty; between predictability and acceptability of legal decision-making. Formal legal certainty implies that laws and, in particular, adjudication must be predictable: laws must satisfy requirements of clarity, stability, and intelligibility so that those concerned can with relative accuracy calculate the legal consequences of their actions as well as the outcome of legal proceedings. Substantive legal certainty, then, is related to the rational acceptability of legal decision-making. In this sense, it is not sufficient that laws and adjudication are predictable: they must also be accepted by the legal community in question.
The Basic Law at 60 – Equality and Difference: A Proposal for the Guest List to the Birthday Party
Authors: Baer Susanne
Published: March 2019

This birthday gives rise to many considerations. Some reflect upon achievements – the German constitution, named “Basic Law”, has proven to work although many did not believe in it when it was framed. Others emphasize desiderata. Sabine Berghahn commented at the 50th birthday that it has developed “far too slowly and [some] has even gone completely wrong.” Jutta Limbach, former President of the Federal Constitutional Court, observed that constitutional history was “anything but regal, but very difficult and full of obstacles.” Former Chancellor Willy Brandt famously called the constitution “a snail on thin ice.” So what is missing when we analyze the Basic Law, and what should be finally added - as spirit, in interpretation, in clarifying words? I will try to point to achievements and show what might still be lacking. This is what studies in constitutionalism always do. To do justice to the occasion, I will also think about who we should invite to celebrate this birthday. More precisely, if we are to celebrate the 60th birthday of Article 3 of the Basic Law, which is the equality guarantee, and which has been amended since its birthday, I will encourage you to think about who should come to this party.
Corporations, CSR and Self Regulation: What Lessons from the Global Financial Crisis?
Authors: Emeseh Engobo , Ako Rhuks , Okonmah Patrick , Obokoh  , Ogechukwu Lawrence
Published: March 2019

The current global financial crisis has necessitated a questioning of some of the fundamental theories and assumptions, particularly the free-market theory, on which regulation of business enterprises, including multinational corporations (MNCs), have been based. Specifically, in the area of corporate social responsibility (CSR), this paper explores two crucial issues. The first is the implication for our understanding of the obligations of corporations to CSR in light of the scale of impacts on ordinary citizens, and their role in bailing out failed banks which owed them no direct legal obligations. The second is the continued reliance on a voluntary framework for CSR. Just as the financial crisis resulted from the largely unregulated nature of global financial institutions, this paper demonstrates, through various country examples in the resources sector, that the unregulated nature of CSR obligations on MNCs has had dire effects, comparable to that of the financial crisis, on populations. If corporations have, through personal greed and irresponsibility, evidently failed to effectively regulate themselves even in their core areas of business necessary for their own survival, how much less do we expect of effective self-regulation in the area of CSR?
A Practical Approach to the New German Foreign Investment Regime – Lessons to be Learned from Merger Control
Authors: Stork Florian
Published: March 2019

The author presents in this paper the new German foreign investment regime entered into force in the spring of 2009. He sets out the basic principles of the regime as well as its enforcement in practice. According to the new German foreign investment regime, the German Federal Ministry of Economics and Technology (BMWi) may examine and prohibit purchases of German companies by foreign investors if they pose a severe threat to public policy or security. Certain transactions, however, fall within the “safe harbour” or are otherwise exempted so that the BMWi has no right of interference. The author presents several exemptions from the scope of application of the regime, which can be either identified from the wording of the law by reverse argument or derived from the spirit and purpose of the new foreign investment regime. Furthermore, by presenting the concept of so called “critical infrastructures”, the paper gives valuable guidance to practitioners on what the German administration might consider relevant for public policy or security. The last part of the paper summarizes the filing and the review process. The parties may, in order to receive clearance for their transaction, notify their transactions to the BMWi and receive a certificate of non-objection. While, this notification is wholly voluntary, parties who do not apply for clearance bear the risk that their transactions are blocked or unwound if the BMWi decides to investigate the transaction within three months from signing ex officio.
Pitting Karlsruhe Against Luxembourg? German Data Protection and the Contested Implementation of the EU Data Retention Directive
Authors: DeSimone Christian
Published: March 2019

Since the 1980s Germany has developed a subtle and complex data protection jurisprudence originally designed to protect individual data subjects from rights abuses by market actors. However, the rights aggressor has increasingly been German and European law enforcement authorities. This evolving corpus of law also exhibits a singularly-German mindfulness of the historical significance of abrogating fundamental rights within constitutional democracy.
The Protection of Peacekeepers and International Criminal Law: Legal Challenges and Broader Protection
Authors: Gadler Alice
Published: March 2019

The concern for the safety and security of personnel involved in peacekeeping missions has grown in the last two decades, mainly because of the increased risks deriving from deployment in volatile environments and mandates comprising multiple tasks. This article provides an overview of the developments of international law regarding the protection of peacekeepers, with a special focus on international criminal law and its role in enhancing the safety of the personnel and objects involved in peacekeeping missions. Indeed, starting in 2008, international and hybrid tribunals have issued their first decisions and judgments against individuals indicted for war crimes and crimes against humanity in connection with attacks against peacekeepers.

After an analysis of the legal regimes established by the 1994 Convention on the Safety of United Nations and Associated Personnel and by international humanitarian law, the article examines the relevant international criminal law provisions and their application and interpretation by the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, and the International Criminal Court. It is argued that the application of the specific war crime of attacking peacekeepers, introduced for the first time in the Rome Statute in 1998, presents particular challenges, but it has also led to the punishment of a broader range of offences against peacekeepers. Furthermore, the application of this crime may contribute to the broadening of the range of punishable offences under the more general war crime of attacking civilians, thus leading to the enhancement of the protection of civilians.
An Analysis of the ICJ Advisory Opinion on Kosovo's Unilateral Declaration of Independence
Authors: Cirkovic Elena
Published: March 2019

The International Court of Justice (ICJ) ruled in an advisory opinion on 22 July 2010 that Kosovo's 17 February 2008 unilateral declaration of independence from Serbia did not violate international law. The Kosovo Parliament's declaration of independence stated that Kosovo would continue to be bound by the United Nations Security Council Resolution 1244 (1999) (hereinafter “SC Resolution 1244 (1999)”), as well as the Ahtisaari plan. UN Special Envoy for Kosovo Martti Ahtisaari's proposal, produced in February 2007, defined Kosovo's internal settlement, minority-protection mechanisms, and allowed for independence under international supervision. The proposal increased the powers devolved to Kosovar institutions but without providing for the complete removal of international oversight and authority.
Bringing RightsMoreHome: Can a Home-grown UK Bill of Rights Lessen the Influence of the European Court of Human Rights?
Authors: Lambrecht Sarah
Published: March 2019

This article focuses on the strategy to replace the UK Human Rights Act 1998 (HRA) with a home-grown Bill of Rights to lessen the influence of the European Court of Human Rights' case law. Without attempting to disregard the national-specific elements, the discussion of these questions is very relevant for all States confronted with the influence of Strasbourg. The tension between coherence, efficiency and autonomy is overarching. The article therefore approaches the issue not only from an outsider's perspective but also, where relevant, from a comparative constitutional law perspective. Both perspectives seem to be largely absent from the current (academic) debate. Firstly, this article analyzes the current relationship between the UK Supreme Court and the Strasbourg Court, which reveals that the judicial arguments in support of a mirror principle are not so much based on section 2(1) HRA, as they are, in the domestic courts' relationship with Strasbourg, on concerns about international obligations, hierarchy, effectiveness of the Strasbourg Court, coherence and efficiency. Internally, judicial arguments are founded on concerns about separation of powers, limited jurisdiction, and accustomedness to the precedent system. In the second part, this article focuses on the potential impact of a home-grown Bill of Rights on the current relationship between both courts; concluding that a home-grown Bill of Rights will most likely cause domestic courts to receive less latitude by Strasbourg and will not absolve domestic judges from the duty of taking into account the Strasbourg case law.
Equilibrium, Demoi-cracy, and Delegation in the Crisis of European Integration
Authors: Lindseth Peter L.
Published: March 2019

As my work has argued previously, European integration enjoys an “administrative, not constitutional” legitimacy. This view is in obvious tension with the deeply-rooted conceptual framework—what we might call the “constitutional, not international” perspective—that has dominated the public-law scholarship of European integration over many decades. Although the alternative presented in my work breaks from that traditional perspective, we should not view it as an all-or-nothing rejection of everything that has come before it. The administrative alternative can be seen, rather, as providing legal-historical micro-foundations for certain theories that also emerged out of the traditional perspective even as they too are in tension with it. I am referring in particular to Joseph Weiler's classic notion of European “equilibrium”—now updated as “constitutional tolerance”—as well as Kalypso Nicolaïdis's more recently developed theory of European “demoi-cracy” on which this article focuses in particular. The central idea behind the “administrative, not constitutional” interpretation—the historical-constructivist principal-agent framework rooted in delegation, as well as the balance demanded between supranational regulatory power and national democratic and constitutional legitimacy— directly complements both theories. The administrative alternative suggests how the relationship between national principals and supranational agents is one of “mediated legitimacy” rather than direct control. It has its origins in the evolution of administrative governance in relation to representative government over the course of the twentieth century (indeed before). By drawing on the normative lessons of that history—notably the need for some form of national oversight as well as enforcement of outer constraints on supranational delegation in order to preserve national democratic and constitutional legitimacy in a recognizable sense—this article serves an additional purpose. It suggests how theories of European equilibrium and demoi-cracy might be translated into concrete legal proposals for a more sustainable form of integration over time—a pressing challenge in the context of the continuing crisis of European integration.
Reform of International Organizations
Authors: Bouwhuis Stephen
Published: March 2019

While the creation of a new international organization is often met with great fanfare, less focus is accorded to the systematic challenges that inhibit reform of international organizations. This article discusses these challenges as well as the enablers that may be useful in addressing them.
The German Right to anExistenzminimum, Human Dignity, and the Possibility of Minimum Core Socioeconomic Rights Protection
Authors: Leijten Ingrid
Published: March 2019

Due to the financial crisis, European states are struggling to make both ends meet and comply with budgetary requirements, This results in cutting pensions and the public wage bill, as well as in phasing out subsidies and other forms of assistance, Although welfare state arrangements have become more limited in the past several decades, especially now, in these times of austerity, it is worth asking how far states can go in limiting social welfare programs, On the one hand, it can be said that there need to be fundamental rights-based limits to the legitimate phasing out or cutting down of existing arrangements to ensure that a minimum level of social arrangements is at all times guaranteed. On the other hand, it is hard to curtail the legislature's freedom by setting such limits, as the political sensitivity, technical aspects, and budgetary implications of social measures seemingly do not allow for too much fundamental rights rhetoric.
Constructing Europe's Area of Freedom, Security, and Justice through the Framework of “Regulation”: A Cascade of Market-Based Challenges in the EU's Fight Against Financial Crime
Authors: Herlin-Karnell E.
Published: March 2019

This article builds upon the idea that the EU's regulatory efforts in the EU Area of Freedom, Security, and Justice (AFSJ) are embedded with difficulties. The article argues that the current strains in the EU-AFSJ policy-making regime are caused by two things in particular. First, the EU's tactic in the AFSJ appears to depart from the classic internal market-based formula of the removal of obstacles for market creation and thereby ventures into the EU criminal law domain with all of its inherent complexities, without an adequately matured legal framework to endorse its policies from within. Second, to the extent that the EU adopts the market theory template in the AFSJ, there are global elements to the EU's sanction policies, These features confirm a hybridity in which legal sources are interacting within the AFSJ field. There is a clear complexity to the EU's fight against financial crimes and its interaction with the multiple sources of EU law where the meanings of “regulatory” and “risk assessment” need to be clarified. This article suggests that the current approach by EU's institutions to push forward the market theory model is a mistake, and that the AFSJ needs to be analyzed within the context of “regulatory powers,” which would lead to a better understanding of the AFSJ framework. This article aims to do so by using the political science concept of “regulatory” to critique the EU's current strategy and thereby argue that the legal debate on the development of the AFSJ could benefit from a more nuanced reading of the definition of “regulatory,” and thereby help to construct the AFSJ and increase its effectiveness.
The Theory of the Law Creators' Circle: Re-Conceptualizing the Monism–Dualism–Pluralism Debate
Authors: Kirchmair Lando
Published: March 2019

The aim of this Article is to re-conceptualize the debate about the (theoretical) relationship between international and national law, which has been debated for centuries. Generally, the floor is divided between dualism as developed by Heinrich Triepel and monism developed mainly by Hans Kelsen. In the light of new developments since their inception, I argue that these theories can no longer comprehensively explain the relationship between international or European Union (EU) and national law. Yet, the Article is based on the conviction that a common denominator of international and national law is elementary (i.e. here “the law creators' circle,” in German, “Die Theorie des Rechtserzeugerkreises,” in short “TREK”) in order to solve possible norm conflicts between different but overlapping legal orders. Therefore, pluralism is also limited in my eyes because it does not offer a satisfying prescriptive account. This common legal framework, however, must not be understood as the “constitutionalization” of international (or EU law) either, as this easily implies too many substantial values, which are not (yet) a common reality.
The (Possible) Role of the Right to Social Security in the EU Economic Monitoring Process
Authors: De Becker E.
Published: March 2019

The outbreak of the financial and economic crisis in 2008 had a severe impact on the member states of the European Union. Countries like Greece had to ask the Troika (the European Commission, the European Central Bank and the International Monetary Fund) for financial aid. In return, they were obliged to reduce public spending and, as a result, national social security systems were drastically reformed. Furthermore, the EU has exercised its competences to supervise national budgets more extensively, even for countries not applying for financial aid through the Country Specific Recommendations under the European Semester. Like the decisions providing financial support, these recommendations also touch upon member states' social security systems. Moreover, the actions of the EU seem to generate a tension between the social rights provisions in (inter)national human rights instruments and the EU economic monitoring process, hence creating a possible deficit at the level of the EU. The five collective complaints against Greece under the framework of the European Social Charter (Council of Europe) illustrate this tension. This Article investigates this tension further and provides insights in possible ways to close the gap between (inter)national social rights provisions and the EU economic monitoring process by looking at the right to social security in the EU legal order. In doing so, this Article scrutinizes the judicial safeguards available at EU level, namely the right to social security in the Charter of Fundamental Rights (CFEU) and the role of general principles of Union's law for the protection of fundamental rights. It will become clear that a lot of uncertainty still remains regarding the content and scope of the right to social security in the CFEU, as well as the enforceability of this provision in the EU economic monitoring process.
Generating Trust Through Law? Judicial Cooperation in the European Union and the “Principle of Mutual Trust”
Authors: Wischmeyer Thomas
Published: March 2019

For a long time, EU institutions have emphasized the connection between one of the most important concepts of the integration method, mutual recognition, and the presence of mutual trust between EU Member States. Only recently, the ECJ reaffirmed in its Opinion 2/13 that mutual trust is at the heart of the EU and a “fundamental premiss” of the European legal structure. But can law really restore, advance or even govern by trust? This question is crucial for the EU of today, which finds itself in the midst of a severe crisis of trust. For the EU as a community “based on the rule of law” generating trust through law might seem the natural, maybe the only politically viable response to a crisis of trust. Nevertheless, even if one agrees that the rule of law requires people to place trust in legal rules, and that courts and administrative agencies need to trust each other in order to work efficiently and consistently, how would legal rules be able to generate or promote trust? Moreover, isn't it deeply rooted in our ideas about constitutional government that democratic law must institutionalize mutual distrust rather than govern by trust? These conceptual and normative objections did not stop the European Union from pursuing the project of trust-building through law in one of the most sensitive areas of EU law, judicial cooperation in civil and criminal matters. This Article will ask whether the project to promote trust through law is a promising one, and, eventually, how to reinterpret statutory provisions and legal principles that purport to generate trust amongst their addressees.
Strengthening European Union Democratic Accountability Through National and Treaty-Based Pre-Legislative Controls
Authors: Ülgen Özlem
Published: March 2019

This article considers whether greater accountability for EU supranational decision-making can be achieved through a combination of member states' legislative processes and EU treaty-based mechanisms. The EU is formed by member states' national consent through treaty ratification and a system of domestic pre-legislative controls on consent—parliamentary approval, public consultation and referendum—which operates to limit the nature and extent of EU law. Using the UK as an example to compare with other member states, the article contends that such domestic controls are prerequisites to national incorporation of EU law and strengthen democratic accountability. Consent alone, however, does not provide an adequate basis for accountability of supranational decisions; EU constitutional principles of citizenship, democracy, and political rights illustrate how the EU fulfills a role as protector of rights. The article further argues that the EU's protector role represents partial legitimacy and accountability for supranational decisions. Greater legitimacy and accountability derives from national parliaments' pre-legislative controls under EU law—scrutinizing legislation, monitoring subsidiarity, and exercising veto powers. The article concludes that if these controls are exercised properly, they represent powerful accountability mechanisms.
Why Teach Legal Theory Today?
Authors: Vilaça Guilherme Vasconcelos
Published: March 2019

Is legal theory relevant to legal practice? Should legal theory be part of the academic legal curriculum? This article outlines three propositions in relation to these longstanding contentious questions. First, it argues that existing literature has pursued an inadequate argumentative strategy by (1) assuming that there is a single yes or no answer to the questions surrounding the relevance of legal theory; and (2) treating legal theory and legal practice as discrete, unrelated entities. This article distinguishes between different styles of doing legal theory and legal practice, and argues that the role of legal theory needs to factor in changes in the substance of law, legal reasoning, and legal careers. Second, focusing on European civil law countries, this article concludes that most legal theory is irrelevant for conventional legal practice. Concomitantly, it suggests that the constitutionalization, transnationalization, and Europeanization of legal systems are changing the practice of law in a way that is more congenial to theory than hitherto. It also contends that legal roles embodying a legislative standpoint within law are creating a demand for increased theoretical sophistication. Third, this article suggests what a course in legal theory, sketched along the lines of the analysis carried out, might look like.
The Second SWIFT Agreement Between the European Union and the United States of America — An Overview
Authors: Pfisterer Valentin
Published: March 2019

The United States and other nations have taken numerous military, police and intelligence measures in order to counter terrorists’ threats in response to the September 11 attacks on the World Trade Center in New York City and the Pentagon in Virginia as well as the attempted attack on a target in Washington, D. C.
Principles of International Internet Law
Authors: Uerpmann-Wittzack Robert
Published: March 2019

Legal principles are an essential element of jurisprudence. They help to systemize, to comprehend and to further develop a legal order. Although International Internet Law is quite a new legal subject, some principles begin to evolve. The article addresses five emerging core principles of International Internet Law: (1) The principle of internet freedom, (2) the principle of privacy, (3) a modified principle of territorial jurisdiction adapted to cyberspace, (4) the principle of interstate cooperation, and (5) the principle of multi-stakeholder cooperation.
Legalising General Prohibitions on Cultivation of Genetically Modified Organisms
Authors: Dobbs Mary
Published: March 2019

In a pluralistic society, agreement over complex issues is frequently difficult to achieve. This is amply demonstrated by the question of cultivation of Genetically Modified Organisms (GMOs), where scientific uncertainty relating to potential threats to the environment or human health runs parallel with concerns over ethics, freedom of choice, and competing agricultural and economic interests. Conflict centres over the objective of free trade of GMOs and the circumstances in which restrictions may legitimately be imposed to deal with the abovementioned concerns, in particular regarding cultivation.
Procedural Rules for the Implementation of the OECD Guidelines for Multinational Enterprises — a Public International Law Perspective
Authors: Schliemann Christian
Published: March 2019

Since the 1990s it is possible to witness, in the multiplication of inter- and transnational actors, an increasing diversity in international norm-making processes as well as a growing variation in enforcing these norms, generically labeled under the term “global governance.” The actions of these private, hybrid or intergovernmental actors on the global level are increasingly seen as equivalent to the exercise of political authority formerly reserved for the state. As in the domestic context, the exercise of such authority raises questions about the procedural guarantees that anyone affected by this action should enjoy. The Organization for Economic Cooperation and Development (OECD) has evaded intensive scholarly attention from the global governance perspective thus far, although by now it is evident that it strongly contributes to this phenomenon through its various activities. The OECD Guidelines for Multinational Enterprises (Guidelines) are but one area in which the OECD is said to assume global governance functions by strongly influencing corporate behavior.
Case Note— Judgment of the European Court of Justice (Grand Chamber) of 1 March 2010: ECJ finally paves the way for unisex premiums and benefits in insurance and related financial service contracts
Authors: Temming Felipe
Published: March 2019

The reference for preliminary ruling concerns the validity of Article 5(2) of Council Directive 2004/113/EC of 13 December 2004, implementing the principle of equal treatment between men and women in the access to and supply of goods and services (hereinafter “Directive 2004/113”). The legal issue is the hotly debated question of whether and to what extent the sex of an insured person can be taken into account as a risk factor in the formulation of private contracts in insurance and related financial services.
The European Private Company: The Current Situation
Authors: Guidotti Rolandino
Published: March 2019

The goal of the European Union is not only to harmonize the different national legislations but also to create new company models. These new company models are not intended to replace the national models, but instead to offer a new and free choice to business operators in addition to the national models. It is predictable that among these models will be the European Private Company (Societas Privata Europaea or SPE) regulated by the Proposal for a Council Regulation (presented by the Commission) of 25 June 2008. The other preceding European legal forms have been the European Economic Interest Grouping (EEIG) of 1985, the European Company (SE) of 2001 and the European Cooperative Society (SCE) of 2003.
The Strategic Constitution in Action: Canada's Afghan War as a Case Study
Authors: Studin Irvin
Published: March 2019

What does the Canadian Constitution have to say (or not say) about Canada's recent war in Afghanistan? The question seems intellectually natural, but has seldom been asked – not least because in Canada, the fields of constitutional law and foreign affairs, in both scholarship and praxis, are often near-perfect strangers. The seldom examined second recital of the preamble to the Constitution Act, 1867 (once the British North America Act,1867, and hereafter the ‘1867 Act'), reads that the “Union would conduce to the Welfare of the Provinces and promote the Interests of the British Empire.” The only provision of the 1867 Act that explicitly references foreign affairs is section 132, although it speaks to the implementation by Canada (legislative and executive branches) ofimperialor British Empire treaty obligations. One can therefore propose with reasonable certainty that both the character and paucity of explicit language onstrategyin the text of the founding legal document of the modern Canadian state betray a fundamental reality: that Canada,constitutionally speaking, was never intended or expected to be a power player of any note in the world, but, rather, was constituted as a strategic appendage orauxiliary kingdomof the British Empire— its instruments and interests subsumed to the strategic designs and direction of Westminster.
A Return to Koskenniemi, or the Disconcerting Co-optation of Rupture
Authors: Kotiaho Paavo
Published: March 2019

The reality of ideological phenomena is the objective reality of social signs. The laws of this reality are the laws of semiotic communication and are directly determined by the total aggregate of social and economic laws. Ideological reality is the immediate superstructure above the economic basis. Individual consciousness is not the architect of their ideological superstructure, but only a tenant lodging in the social edifice of ideological signs.
Balanced Budget Rules and Expenditure Limits: Lessons from the US and Australia and Implications for the EU
Authors: Humphery-Jenner Mark
Published: March 2019

Governments periodically receive accusations of over-spending. These accusations are sometimes warranted. Some commentators propose that strict tax and expenditure limits (TELs) and/or balanced budget requirements (BBRs) may resolve excessive expenditure. Governments can implement TELs and BBRs through constitutional amendments, statutory schemes, or non-binding aspirational goals. They have been proposed as a remedy to allegations of over-spending in some European countries. However, it is not entirely clear if TELs or BBRs are effective or will resolve excess expenditure. I analyze TELs and BBRs as implemented in the United States and Australia. I argue that the Australian model of aspirational TELs and BBRs is beneficial if there is a political will to enforce them. However, if there is no such political will, then statutory (as opposed to constitutional) TELs and BBRs best strike a balance of flexibility and constraint.
The Intellectual History of International Law as a Research Field—“Lauterpacht and Beyond: Jewish/German Authorship and the History of International Law”
Authors: Lange Felix
Published: March 2019

Publications on the history of international law written during the Cold War can almost be counted on one hand. A pragmatically-oriented generation studied practical areas like UN Charter law, international trade law, or international environmental law, while the theory and history of international law played only a secondary role. An intellectual history of international law, asking which ideas and concepts inspired and formed international law writing, hardly received any attention.
Deconstructing the Conflict in Ukraine: The Relevance of International Law to Hybrid States and Wars
Authors: Korhonen Outi
Published: March 2019

In Ukraine, spheres of political, military, and economic control are contested, non-transparent, and shifting. As the Ukrainian government lost control over the rebellious Eastern oblasts (regions) of the country, Russia denies its authority over various pro-Russian separatists and vigorously rejects any responsibility for the abuses by the unidentified “green men,” both before and after the annexation of Crimea. Even during the decades before this conflict, the rule of law in Ukraine was “thin” at best. Meaningful political control was sporadic and dispersed, often wielded by the mix of public, private, and other shady actors occupying the grey area between a functional and a dysfunctional state. If state actors never effectively took control over the events at the state-level during peaceful times, it is not surprising that it is more difficult once a “hot” conflict breaks out. It is not unreasonable to assume that Minsk agreements—signed in an effort to stop the hemorrhaging of the conflict—will not hold if the signatories do not effectively control the diverse public and private actors who possess the actual capacity to influence the dynamic on the ground. Before rendering any kind of juridical judgment, the complicated political and socioeconomic configuration of the conflict in Ukraine forces us to first confront a factual puzzle: Who and what influence the current situation? Which concrete actors really drive the conflict and what interests animate them?
The Eternal Territory? The Crimean Crisis and Ukraine's Territorial Integrity as an Unamendable Constitutional Principle
Authors: Roznai Yaniv , Suteu Silvia
Published: March 2019

This article reflects on the protection of territorial integrity in the Ukrainian constitution, especially on its provision of unamendability, against the backdrop of the 2014 Crimean crisis. At the general level, we examine whether constitutional theory can offer answers when confronted with the apparent inefficacy of a constitutional claim to eternity. More specifically, we focus on what the Ukrainian case can teach us about the implications of designating territorial integrity or indivisibility of a state as an eternal/unamendable constitutional principle. Building on insights from the Crimean crisis, we argue that the unamendable protection of territorial integrity is an especially ineffective type of eternity clause because it is subject to both the internal threat of secession and the external risk of forceful annexation, The preservative promise of unamendable territorial integrity is severely curtailed by this double vulnerability, even when backed by a constitutional court with far-reaching powers of judicial review. Territorial integrity as an eternal constitutional principle then remains merely aspirational. Moreover, we argue that the act of entrenching territorial protection as an unamendable principle is in clear tension with the idea of popular sovereignty and with mechanisms for expressing popular will.

East-Central European constitutions play like songs of the liturgy on a very old gramophone. You hear the expected music performed in the service of constitutionalism, but you hear it with a crackle in the background. The performance is old-fashioned in order to receive thenulla obstatof the Council of Europe and sometimes (when territorial integrity comes up) the soprano's voice suffers from hysteria.
Characteristics of Precedent: The Case Law of the European Court of Justice in Three Dimensions
Authors: Derlén Mattias , Lindholm Johan
Published: March 2019

The case law of the Court of Justice of the European Union (CJEU) is one of the most important sources of European Union law. However, case law's role in EU law is not uniform. By empirically studying how the Court uses its own case law as a source of law, we explore the correlation between, on the one hand, the characteristics of a CJEU case—type of action, actors involved, and area of law—and, on the other hand, the judgment's “embeddedness” in previous case law and value as a precedent in subsequent cases. Using this approach, we test, confirm, and debunk existing scholarship concerning the role of CJEU case law as a source of EU law. We offer the following conclusions: that CJEU case law cannot be treated as a single entity; that only a limited number of factors reliably affect a judgment's persuasive or precedential power; that the Court's use of its own case law as a source of law is particularly limited in successful infringement proceedings; that case law is particularly important in preliminary references—especially those concerning fundamental freedoms and competition law; and that initiating Member State and the number of observations affects the behavior of the Court.
The “Polemical” Spirit of European Constitutional Law: On the Importance of Conflicts in EU Law
Authors: Martinico Giuseppe
Published: March 2019

Recently, scholars have argued of the necessity of going beyond “judicial dialogues” and “conflict-and-power” approaches to the analysis of the role of national Constitutional Courts in the Union. On the one hand, there are risks connected to a “too welcoming an approach by national constitutional courts to EU law”; on the other hand, it is possible to criticize both the Court of Justice of the EU (CJEU) and some national Constitutional Courts for other, less cooperative, decisions. I share this cautious approach for many reasons, and primarily because the preliminary ruling mechanism does not exhaust all the possible means of communication between constitutional courts and the CJEU. For instance, what Komárek calls “parallel references” can serve, in some circumstances, as a technique of alternative (or hidden) dialogue, that has favored a sort of “remote dialogue” over the years. My sole point of disagreement with this scholarly position is over the role of conflicts in this scenario. Whilst Komárek seems to confine conflicts to phenomena of mere resistance or to “‘cold’ strategic considerations,” in this work I am going to adopt a much broader idea of conflict, which goes beyond mere “conflicts and power games.”
Pouring New Wine into New Bottles? The Preliminary Reference to the CJEU by the Italian Constitutional Court
Authors: Repetto Giorgio
Published: March 2019

In the ongoing debate about preliminary references raised by constitutional courts, the ItalianCorte costituzionale(Constitutional Court, hereafter, ICC) is apparently a latecomer. Despite its pivotal role in the founding era in which the relationships between Community law and national legal orders were assessed, its reluctance towards preliminary references to the ECJ (since 2009: Court of Justice of the European Union, CJEU) has repeatedly been invoked as a standard in legal scholarship. Whereas from the early 1960s onwards it engaged dialectically with the CJEU, and contributed to some basic tenets of EC lawvis-à-visnational law (direct effect, primacy, limits concerning basic constitutional principles, so-calledcounter-limits), it appeared for a long time to be almost silent on the crucial aspect concerning its ability to enter into a direct dialogue with the CJEU via the preliminary reference procedure. Although this ambivalence may appear contradictory, one should not forget that behind the scenes, dialogue took place along indirect or “hidden” channels. Either in response to claims raised by the judiciary inincidenterproceedings, or in adjudicating disputes between State and Regions inprincipaliterones, the ICC often sent messages and alerts to the CJEU. In so doing, it indirectly contributed to shaping the relationships between EU law and domestic law. In the long run, the absence of the ICC's direct involvement in the relationships with the CJEU has, however, estranged its action from the core of EU law in favor of the partnership between the CJEU and the common judges (both ordinary and administrative).