bluuebunny/crossref_metadata_2025 huggingface dataset:
Current Reform Efforts of German Consumer Insolvency Law and the Discharge of Residual Debts
Authors: Busch Dörte
Published: March 2019

The new Insolvency Statute (Insolvenzordnung – InsO), which came into force on 1 January 1999, sets a discharge of residual debts (Restschuldbefreiung), sections 286 – 303 InsO. When the debtor is a natural person, he or she can request the discharge on the basis of two different insolvency proceedings: either in accordance with the regular insolvency proceedings or in accordance with the consumer insolvency proceedings. The discharge of residual debts has both a social and an economic function. On the one hand, it serves as personal protection for the debtor, especially his rights of privacy and dignity (allgemeines Persönlichkeitsrecht); it will give debtors a new perspective. On the other hand, the provisions intend to (re)integrate debtors into economic life, thereby avoiding illegal employment.
Langdell's Prodigal Grandsons: On Duncan Kennedy's Critique of American Legal Education
Authors: Winkler Viktor
Published: March 2019

At a stage of life when German law students habitually prepare to finish their studies by intravenously absorbing law at commercial preparation courses, American law student Duncan Kennedy had a somewhat different notion. In a law review article he virtually pulled to pieces what he had experienced as Ivy League education at Yale Law School. In 1983, meanwhile a member of an Ivy League law school faculty, Kennedy resumed his critique in a self-published pamphlet widely known as the Little Red Book. Although being available only at the Harvard bookstore or via mail order from the author, Kennedy's statement has gained quite remarkable fame. It has been reviewed by the most esteemed law reviews, and has been quoted and widely discussed among legal scholars. Now the Little Red Book has even formally arrived in the ivory tower of legal academia: handsomely published, equipped with a fore- and afterword by the author, encompassed by thoughtful essays and, yes, gold letters engraved on the spine. The typescript of the original book however, once consciously produced in a semi-professional manner with a circulation of around 3000 copies, has been preserved. Thus readers do hold the original text in their hands, despite gold gravure.
Human Dignity and the Downing of Aircraft: The German Federal Constitutional Court Strikes Down a Prominent Anti-terrorism Provision in the New Air-transport Security Act
Authors: Lepsius Oliver
Published: March 2019

In a remarkable decision the Federal Constitutional Court has declared a prominent provision of a new German anti-terrorism law unconstitutional and void. The decision attracted wide attention for its treatment of constitutional questions of human life and dignity as well as the constitutional limitations of so-called “security statutes.”
Third Party Liability for Hezbollah Attacks against Israel
Authors: Kirchner Stefan
Published: March 2019

After an Israeli soldier was abducted in the south of the country in late June, Israeli Defense Forces (IDF) began Operation “Summer Rain” in Gaza in order to secure the safe return of the soldier. On 12 July 2006, Hezbollah forces captured two Israeli soldiers in Northern Israel and killed three more, triggering Operation “Just Reward”, which ended with the fragile cease-fire agreed upon under the terms outlined in U.N. Security Council Resolution 1701. The conflict between Israel and the Hezbollah had the potential of plunging the whole region in a wider war; as a matter of fact, it seems that Iran and Syria were fighting a proxy war against Israel. Hezbollah alone does not have the technological capabilities of hitting Haifa or Nazareth with their own Katjusha-type missiles, which essentially are not much more than slightly modified World War II weapons, yet Hezbollah struck deep inside Israel. On the last day of the war alone, with the cease-fire already in sight, 246 rockets were fired into Israel. Moreover, it appears that Israel was not hit only by Katjushot but also by other missiles with a longer range. Given their arsenal and longstanding support for Hezbollah, the assumption that Iran and Syria have actually delivered missiles or missile technology to Hezbollah is anything but farfetched. News reports during the conflict indicated that Hezbollah used Syrian 220mm-missiles against Israel and that weapons have been delivered to the Hezbollah from Iran, oftenviaSyria. Hezbollah's arsenal includes Iranian-made Zilzal-2 missiles with a range of 210 km, Russian-designed AT-5 anti-tank weapons which were produced in Iran, as well as Russian-made Kornet-E laser-guided weapons and Metis-M anti-armor weapons, both supplied by Syria. Most notorious was the use of Iranian Fajr-3 missiles against Israeli cities. Thousands of these missiles had already been provided to Hezbollah before the fighting began. The rockets that hit the town of Afula, south of Haifa, on 28 July 2006, and which was referred to by Hezbollah as Khaibar-1, likely were the first Iranian-made Fajr-5 missiles ever used by Hezbollah. Despite the destruction of the infrastructure in Lebanon during Operation “Just Reward”, Hezbollah continued to receive weapons. But Syrian and Iranian influence goes back a long time. Today's Hezbollah is the result of an Iranian-nurtured program that lasted for two decades and transformed a local guerilla group into a full-fledged army. Today, Hezbollah's military wing is no longer a group of partisans but an army comprising between 6,000 and 8,000 regular members, not counting reserves, divided into battalions of 250 men, as well as special forces. Not only was it the late Ayatollah Khomeni who provided the initiative for the foundation of Hezbollah, Iran continues to trains Hezbollah fighters and supports Hezbollah's army with weapons, such as the C-802 land-to-sea-missile that was used against the Israeli Naval Ship “Hanit” during the recent conflict.
Protective Declarations Against Scientology as Unjustified Detriments to Freedom of Religion: A Comment on the Decision of the Federal Administrative Court of 15 December 2005
Authors: Zacharias Diana
Published: March 2019

In German constitutional law doctrine, the principal problem which state measures are to be qualified as relevant restrictions to activate the protection by basic rights has not yet been conclusively solved. According to the classic definition, a relevant restriction is given if the infringement of a basic right is final (not a merely unintentional consequence of an activity that aims at fulfilling other purposes) and direct (not only an intended but indirect consequence of the state activity), a legal act with legal (not merely de facto) effects and issued or executed by order and force. Restrictions that do not fall under this definition are problematic. This in particular goes for triangle constellations where the reaction of the addressee of a State measure causes a detriment to a third person's basic rights so that it must be asked whether that restriction can be attributed to the State so that it must justify them, possibly like other direct state measures. A typical example is the case of state warnings against dangerous products; when followed these warnings cause consumers to avoid these products and result in negative effects on the producer's commercial activities, activities that are protected by the freedom of profession or the property right. Connected with the problem of the right classification of such state measures is the question of in what cases restrictions that are found relevant under aspects of basic rights doctrine must correspond with the provision of legality and with other substantive principles in order to be justified. In the case of classical infringements, there is no doubt that a legal authorization is needed and that the principle of proportionality must be observed.
National Constitutionalism, Openness to International Law and the Pragmatic Limits of European Integration – European Law in the German Constitutional Court from EEC to the PJCC
Authors: Lebeck Carl
Published: March 2019

The issue of how democratic and constitutional nation states shall square international cooperation with their commitments to constitutionalism, democratic accountability and fundamental rights is a persistent problem that becomes ever more pressing with increasing international integration. The German Federal Constitutional Court (FCC) is well-known for having developed a detailed case law on the extent and forms of delegation of powers from the German state to inter-and supranational organizations.
Data Screening of Muslim Sleepers Unconstitutional
Authors: Kett-Straub Gabriele
Published: March 2019

Shocking news for police and intelligence agencies in Germany: the search for inland sleepers following the terrorist attacks in 2001 on the World Trade Centre in New York and the Pentagon was unconstitutional. Preventive data screening is incompatible with the fundamental right of informational self-determination according to Article 2 (I) in connection with Article 1 (I) of the Grundgesetz (GG - Basic Law). Since the ruling of the Bundesverfassungsgericht (BverfG - Federal Constitutional Court) of 4 April, 2006 (1 BvR 518/02), such numerous acquisition of data is not permitted unless a concrete threat to important objects of legal protection is existent.
Legitimacy and UN-Administration of Territory
Authors: Knoll Bernhard
Published: March 2019

Given the scope of authority the United Nations has assumed in order to perform functions of territorial administration both in East Timor and Kosovo, it is, as one commentator remarked, rather surprising that the issue of the legitimacy of the internationalisation of state structures through post-conflict governance has inspired little debate. There are myriad reasons for the erosion of political authority in a territory temporarily administered by the international community – corruption, local obstructionism and internal divisions, failure to promote government transparency, a tenuous link between civil administration and the military command structure, the operation of (inter)national networks of patronage, and general incompetence, to name a few. This article analyses some of theinherenttensions involved in international institution-building. It introduces the variety of actors operating in an internationalised territory as the quest for legitimacy creates tensions between them, and portrays the dynamics that unfold in a process in which notions of legitimacy are subject to institutional contestation.
Birth of a Nation: Kosovo and the Persecution of Pariah Minorities
Authors: Cahn Claude
Published: March 2019

“In August 1998, at the ‘Black Eagles’ unit headquarters at Rznic, Idriz Balaj detained as prisoners Zenun Gashi, a former policeman, Misin Berisha and his son, Sali Berisha, all of Roma ethnicity. Zenun Gashi was last seen in the village of Kosuric/Kosuriq, municipality of Pec/Peja. On the day of his abduction, he was observed to have been badly beaten in a car with three KLA soldiers, in the neighbouring village of Barane/Baran. While detained, Sali Berisha's nose was cut off, in the presence of Idriz Balaj and of two other KLA soldiers. Idriz Balaj cut each of the three men on their necks, arms and thighs, rubbed salt into the cuts and sewed them up with a needle. Idriz Balaj then wrapped Zenun Gashi, Misin Berisha and Sali Berisha in barbed wire and used an implement to drive the barbs of the wire into their flesh. Idriz Balaj also stabbed Zenun Gashi in the eye. The three men were then tied behind Idriz Balaj's vehicle and dragged away in the direction of Lake Radonjic/Radoniq. They have not been seen alive since this day and are presumed to have been killed.”
German Federalism Reform: Part One
Authors: Gunlicks Arthur
Published: March 2019

In October 2005 the German Law Journal published my article which reviewed the major characteristics of German federalism, some common criticisms, and efforts to reform the system in recent decades. These efforts culminated in a Federalism Commission (Kommission von Bundestag und Bundesrat zur Modernisierung der bundesstaatlichen Ordnung [KOMBO]) that was formed in the fall of 2003 and met until December 2004, when the co-chairs announced that the Commission was unable to reach agreement on several issues, in particular the respective roles of the federal and Land (state) governments in higher education policy. The failure of federalism reform was lamented by most observers, and many regretted especially the fact that the Commission had agreed on far more issues than those on which it had disagreed.
Court Review of Contract Awards Below Threshold Amounts – The Constitutional Court's Recent Decision
Authors: Pietzcker Jost
Published: March 2019

The recent decision by the Federal Constitutional Court (Bundesverfassungsgericht) should please everyone concerned with sound constitutional and administrative law doctrine and the proper exercise of judicial functions. It should also please public procurement authorities and successful bidders; however, it will undoubtedly displease many attorneys and losing bidders.
Conference Report- Pointed Reasoning on Normativity: Young Researchers in Legal Philosophy Meet in Würzburg
Authors: Goldmann Matthias
Published: March 2019

“For, he reasons pointedly, that which must not cannot be:” the last two lines of a famous poem by Christian Morgenstern bring the crux of normativity to the point: what is the relationship between facts and norms? The research of the past decades has increased rather than reduced the complexity of this fundamental question for legal theory. First of all, the relationship between facts and norms is still less than clear. Hans Kelsen had argued that facts and norms were to be clearly separated, but once theGrundnorm(basic norm) had turned out to be fictitious, the search for an appropriate description of the relationship between facts and norms began anew. Positivists after Kelsen based normativity on different facts, such as social acceptance or social discourse. Secondly, research on new modes of governance, in particular in the fields of European and international law, has revealed that behaviour can be influenced by “soft” norms and non-normative forms of governance just as much as by “hard” law. These results prompted some to consider legal normativity a matter of degree instead of an on-off issue.
German Securities Trading Law - New Share Ownership Notification Rules
Authors: van Kann Jürgen , Wiedemann Karen C. , Just Clemens
Published: March 2019

On January 20, 2007, the Transparenzrichtlinie-Umsetzungsgesetz (Transparency Directive Implementation Act or TUG) came into effect implementing the European Transparency Directive. It entails some significant changes to the disclosure requirements of German listed corporations, such as a newly introduced Bilanzeid (confirmation of the balance sheet). In addition, material alterations to the share ownership notification rules in the Wertpapierhandelsgesetz (German Securities Trading Act or WpHG) have been made. The latter changes should be carefully observed by investors and are analyzed in this article.
Legal Protection Against the UN-Security Council Between European and International Law: A Kafkaesque Situation?
Authors: Ley Isabelle
Published: March 2019

Constitutionalism beyond the state concerns itself with the relation among various legal levels and the position of the individual in a multilevel legal system. The question how human rights are protected against international organizations who increasingly take on executive powers cannot be thoroughly answered without confronting a fundamental debate in international law theory: the constitutionalism-fragmentation debate. The European Court of First Instance as well as the European Court of Justice (ECJ) had to deal recently and are still dealing with this complex in a number of cases.
Modernization of the German Anti-Corruption Criminal Law: The Next Steps
Authors: Wolf Sebastian
Published: March 2019

“Despite many successes in the anti-corruption movement, […] it must never be forgotten that both in political life and in the economic sphere there are powerful factors prompting and encouraging corrupt practices.”
Corporate Social Responsibility and Transparency in the Development of Energy and Mining Projects in Emerging Markets; Is Soft Law the Answer?
Authors: Nwete Bede
Published: March 2019

Corporate Social Responsibility (CSR) has today become the rhetoric of every Business Enterprise, especially those engaged in Natural Resource Development. This is in recognition of its intrinsic value to the business bottom line and its ability to stave off social and reputation risks that may not only affect a project's rate of return, but also subject to questioning, its ‘social licence’ to operate. But the ‘free rider’, ‘green wash’ and ‘blue wash’ problems that result from self-regulation inherent in the practical implementation of CSR initiatives, has led to questions as to whether self regulation as exemplified in the ‘soft law’ approach to CSR and transparency, is really the answer to the problem of using CSR and Transparency initiatives, to ensure that Mineral Resource Development benefits all parties on the Mineral Development Triangle. Is government regulation a better option or should industry driven self-regulation be allowed to continue? This paper reviews the above issues using examples from a few countries to show the way forward.
Turkey's New Law on Renewable Energy Sources within the Context of the Accession Negotiations with the EU
Authors: Gaupp Dirk
Published: March 2019

This article introduces Turkey's Law on Utilization of Renewable Energy Sources for the Purpose of Generating Electrical Energy (hereinafter “Law”) which, almost unnoticed abroad, was adopted on 18 May 2005. It provides an overview of the general provisions of the Law, as well as other supporting legislation regarding renewable energy sources (“RES”). However, the legislation on bio-fuel will not be taken into account.
The Brussels Convention and Reparations - Remarks on the Judgment of the European Court of Justice inLechouritou and othersv.the State of the Federal Republic of Germany
Authors: Gärtner Veronika
Published: March 2019

On 15 February 2007, the European Court of Justice delivered its judgment in the caseLechouritou and others v. the State of the Federal Republic of Germany.The case concerned the question whether compensation for acts perpetrated by armed forces in the course of warfare can be asserted on the basis of the jurisdictional rules provided for by the Brussels Convention. The Court held that such an action did not fall within the scope of the Convention since it could, due to its origin in sovereign acts, not be regarded as a civil matter in terms of Art. 1 Brussels Convention. Thus, jurisdiction for claims directed at the compensation for damages resulting from the exercise of public power cannot be based on the Brussels Convention. The analysis of the Court's ruling will proceed as follows: First, the history of the case as well as the essence of the judgment will be presented (infraB) before giving a review on the Court's previous case law on the concept of “civil matters” (infraC). This outline will be followed by an analysis and a classification of the ruling in the Court's jurisprudence (infraD), before eventually the results will be summarized (infraE).
Response – The Fight against Terrorism and the Rules of International Law – Comment on Papers and Speeches of John B. Bellinger, Chief Legal Advisor to the United States State Department
Authors: Vöneky Silja N. U.
Published: March 2019

In the last year John B. Bellinger, III, Chief Legal Adviser to the United States Department of State, has been engaging in a dialogue with politicians and legal scholars in European countries. These speeches and public appearances, like the remarks delivered at the London School of Economics in 2006 and republished in this issue of the German Law Journal, were meant to address the misimpressions, as Mr. Bellinger sees it, that have become prevalent in Europe over the last few years with respect to the US positions on questions of the legal basis and legal limits of the “war on terror” and the treatment of detained terrorists.
Importing and exporting poor reasoning: worrying trends in relation to the case law on the free movement of goods
Authors: Dawes Anthony
Published: March 2019

This article focuses on the European Court of Justice's [ECJ] recent case law on the free movement of goods in order to show how the boundaries of the prohibition laid out under Articles 28 to 30 EC are once again coming under strain. Such a development, it will be argued, can be observed both in terms of the modification of the scope of the prohibitions set out by Articles 28 and 29 EC and of their application to purely internal situations.
Sexual Abuse of Children Abroad – A German Perspective on the Antalya Case
Authors: Kirchner Stefan
Published: March 2019

In recent months a criminal law case has strained relations between Germany and Turkey. A 17 year-old German citizen, who had been vacationing in a Turkish seaside resort town of Antalya with his parents was arrested there in Spring 2007 for allegedly having sexually abused a 13 year- old girl, also a tourist on holiday in Turkey with her parents. Presently, court proceedings are still underway in Antalya. Although the suspect has admitted to having had a sexual encounter with the girl, tests indicated that the intercourse was consensual. Initially both politicians and parts of the media expressed their shock at the arrest and detention of the suspect rather than the alleged crime itself. At the present time of writing there is insufficient information to adequately assess the facts of the case and it is important to note that the young man has not yet been convicted of any crime. Yet, based on media reports concerning statements made by the suspect himself, the case presents a number of interesting questions from the perspective of German law. These questions require a closer look, particularly in the light of the criticism directed at Turkish authorities from German politicians and media and since the Staatsanwaltschaft (Office of the Prosecutor) in Lüneburg (the suspect's hometown) is now investigating as well. This article considers, as a revealing comparative exercise, how the alleged crime would be addressed under German law.
Westphalia: a Paradigm? A Dialogue between Law, Art and Philosophy of Science
Authors: Filho Marcílio Toscano Franca
Published: March 2019

On 23rdJune 2007, after three years of uncertainty, European Union leaders agreed on relaunching the old idea of aMagna Chartafor Europe (now called “the Reform Treaty”), a normative structure based on the old ideas of deference to national identities, sovereignty and equality. To many authors, the first time that juridical equality between states was solemnly stated was in the aftermath of the Thirty Years’ War (1618-1648), in the Westphalia Peace Treaties, representing the beginning of modern international society established in a system of states, and at the same time, “the plain affirmation of the statement of absolute independence of the different state orders.” In fact, under an Eurocentric conception of political ideas (which envisages England as an isolated island and Iberia as Maghreb, north of Africa), the modern state emerges with the Westphalia Peace Treaties. However, under a broader conception, the modern nation-state (under the form of absolute monarchy) emerged long before the Westphalia Peace Treaties, in Iberia and England. Nevertheless, it is in these documents which lies the “birth certificate” of the modern sovereignty nation-state, base of the present democratic state, and “founding moment” of the international political system. Far beyond this merely formal aspect, the importance of the Westphalia Peace Treaties is so great to the understanding of the notion of state that Roland Mousnier, in describing the 16th and 17th centuries in theGeneral History of the Civilizations, organized by Maurice Crouzet, asserts that those treaties symbolized a real “constitution of the new Europe,” a multifarious Europe, plural and very distant from the religious unit of Christianity, from the political unit of the Holy Roman Empire, and from the economical unit of the feudal system. Constitutions are especially important because they establish the rules for the political authority, they determine who governs and how they govern: “[I]n codifying and legitimating the principle of sovereign statehood, the Westphalian constitution gave birth to the modern states-system.”
Crime and Justice in an Age of Global Insecurity: Notes on the British Society of Criminology Annual Conference 2007
Authors: Schlembach Christopher
Published: March 2019

This year the Karl Mannheim Centre for Criminology at The London School of Economics hosted the 2007 annual conference of the British Society of Criminology between the 18th and 20th of September. Some 280 papers, two plenary sessions and a number of “author meets critics” sessions gave insight into the diverse fields of criminological research in the UK and abroad. The conference's theme was programmatic: “Crime and Justice in an Age of Global Insecurity”. The notion of insecurity, expressing a globalized experience and an ontological status of the human being in late modernity, termed a historical period of time. It fits to a conjuncture of theorizing the uncanniness of contemporary social life. In this way, the theme of the conference is partly to write the history of the present in terms of crime and justice. Such conferences are both a witness of the social processes surrounding the issues of crime and criminal justice, and an agent of change by providing directives for the future, thereby shaping the way in which criminologists look at the social world.
Schneider Electric SA v. Commission: Regarding the Non-contractual Liability of the Commission the Decision of the Court of First Instance is Consistent with Precedent
Authors: Poto Margherita
Published: March 2019

The question before the Court of First Instance concerned the legitimacy of the Commission's decision on a merger of two French companies incorporated under French law, Schneider Electric SA (hereafter Schneider SA) and Legrand SA (hereafter Legrand). On 16 February 2001 Schneider SA and Legrand, in accordance with the requirements on Regulation of mergers, notified the Commission of Schneider's proposal to make a public offer in respect to all the shares in Legrand held by the public. The judgment of the Court of First Instance can be considered an important step in the development of the European Commission's liability, particularly in respect to the Commission's liability in its role as watchdog of the common market. The judgment puts flesh on the skeletal set of existing principles concerning the liability of the European Community, and contributes to the creation of a systematic approach to the case law.
The Sublime Codes ofManu: Law and Eighteenth Century Orientalism
Authors: Haldar Piyel
Published: March 2019

The first disquisition given to the concept of the sublime, written by the anonymous Greek Pseudo-Longinus, famously mourns the passing of the pagan relationship between gods and men. In his essay on the work of Pseudo-Longinus, the French poet Michel Deguy states that “the question of the sublime was doubtless first of all an attempt to measure the decline of the Orient, to measure the author's distance from the time of gods and heroes.” For Deguy, the Longinian tradition of emphasising the sublime as a key feature of rhetoric must be regarded as an attempt to establish some hope of a truly exalted discourse at a time in which man moves further and further away from his sacred relationship to the highest of origins. Such nostalgia obviously colours every cycle of secularisation; from paganism to Christianity to modernity and beyond. If each period of secularisation generates a more worldly state of affairs, or flatter discourses, it also produces a Longinian longing for a more vertical axis to explain our mortality.
“Thank You India.” Reflections on the 4th International Conference on Federalism, New Delhi, 5-7 November 2007
Authors: MacLaren Malcolm
Published: March 2019

Some words said in closing to the recent International Conference on Federalism in New Delhi (hereinafter 4th ICF) could not help but bring to mind the lyrics of an old pop song: “Thank you India”, said George Anderson, President of the Forum of Federations, echoing the well-known refrain of his compatriot Alanis Morissette. In her hit single “THANK U”, Morissette expresses gratitude to India for the life lessons she learned during a visit. Anderson's words provoked at least this audience member to reflect upon “Unity in Diversity” and to “learn […] from each other”, the ICF's overall theme and goal. Ironically, the lessons that I draw are not dissimilar from Morissette's: “clarity”, “consequence”, and “disillusionment”. For these valuable lessons I would like to express gratitude too, namely to the Indian Government, the Conference host.
Religious Tolerance, Pluralist Society and the Neutrality of the State: The Federal Constitutional Court's Decision in theHeadscarf Case
Authors: Mahlmann Matthias
Published: March 2019

Some of the most magnificent achievements of human culture, from theParthenontoParadise Lost, have been inspired by religion and some of the worst atrocities of human history have been committed to worship its commands. In consequence, whenever questions of religion become part of the political and legal agenda of a society one might be very insecure about the solution of the problem but can be absolutely confident that the stakes are high and the discussions intense. This general observation about religious issues has gained a special dimension due to the events of September 11, 2001, and the wars in Afghanistan and Iraq. Since then the role of religions in general and of Islam in particular is at the very core of central debates of global civil society and of the deliberations and actions of policy makers.
Procedural Fairness in a Militant Democracy: The “Uprising of the Decent” Fails Before the Federal Constitutional Court
Authors: Rensmann Thilo
Published: March 2019

“If there be any among us who wish to dissolve this union, or to change its republican form, let them stand undisturbed, as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.” The framers of the German Grundgesetz (Basic Law or Constitution) of 1949 had lost Thomas Jefferson's optimistic faith that the self-healing powers of reason would render a democratic polity immune to totalitarian temptation. The Weimar Republic had proved defenceless against the rise of a totalitarian movement, which availed itself of the democratic process as a Trojan horse in its effort to establish a brutal dictatorship.
An Economic Analysis of Consumer Protection in Contract Law
Authors: Haupt Stefan
Published: March 2019

The traditional justification of consumer protection is founded on the notion of restraining the monopoly power of huge companies and the potential that they posses to influence consumers via advertising that limits consumers’ ability to verify what is in their own best interest. This theory refers not to the individual consumer in a concrete situation, but stresses a general economically weaker position of the consumervis-à-visthe suppliers. Consumers are seen as less knowledgeable and as economically inferior to producers and traders. So a large deviation between the ideal of consumer sovereignty and reality is presumed. The power imbalance on the market (“countervailing power”) leads to demand for market reconciliation, compensation or balancing. According to this conception the state must support the consumers as weaker market participants during the counterweight
Death by Constitution? The Draft Treaty Establishing a Constitution for Europe
Authors: Klabbers Jan , Leino Päivi
Published: March 2019

It has been argued that the best possible constitution is a short constitution. If so, then the Draft treaty establishing a constitution for Europe is a spectacular failure: at more than 250 pages, comprising some 450 articles and a handful of protocols and declarations, the Draft constitution is anything but short.
Elements of Constitutionalization: Multilevel Structures of Human Rights Protection in General International and WTO-Law
Authors: Schorkopf Frank , Walter Christian
Published: March 2019

Both internationalists and national constitutionalists are currently reflecting on changes in the basic structures of public law. From the national perspective, the process of globalization puts into question the hitherto generally accepted position of constitutional law as being at the top of the pyramid of norms. In international law, the development of subject-oriented régimes has led to a proliferation of international courts and other bodies entrusted with the resolution of disputes. This tendency entails a danger of fragmentation which contrasts with the current tendency to discover processes of constitutionalization in international law. Starting from the functions of the constitution in national law, the following paper develops in the first part elements of constitutionalization in international law in general (I.). In the second part, the identified problems are elaborated upon in more detail with respect to the law of the World Trade Organization (II.).
Lost Information and Competing Interests in Restoring Germany's Dispossessed Property – The Recent Decision of the German Federal Administrative Court
Authors: Mostert Hanri
Published: March 2019

With the progressive “accession” of the German Democratic Republic to the Federal German Republic after the reunification in 1990, Germany had to deal with a number of impediments emanating from the attempt to reconcile different political, social and legal models that developed during the forty years of separation between East and West Germany. Among these was the issue of how the property order in Germany would be influenced by seeking to integrate two such different socio-political and legal systems. As the discussion below indicates, the demands placed by this issue on the courts, legislature and administration of the newly reunified Federal German Republic still cause repercussions.
Compensation Claims for Human Rights Breaches Committed by German Armed Forces Abroad During the Second World War: Federal Court of Justice Hands Down Decision in theDistomoCase
Authors: Pittrof Sabine
Published: March 2019

In recent times, an increased awareness in public international law of the significance of human rights has given rise to the idea of direct access to compensation claims by individuals in the case of severe human rights breaches. This development has led to a number of actions for compensation in various jurisdictions. TheBundesgerichtshof(BGH – Federal Court of Justice) recently joined the series of decisions from higher courts addressing compensation claims for human rights breaches, handing down its landmark decision on compensation claims by Greek citizens whose parents were killed in a massacre in Distomo during the Second World War.
Defining the Balance between Free Competition and Tax Sovereignty in EC and WTO Law: The “due respect” to the General Tax System
Authors: Guerrero Vanessa Hernández
Published: March 2019

“While direct funding of private enterprises has proven to be an efficient but rather crude and obvious device of public aid, States turn their attention to the elegant and indirect ‘tax incentives.’”

Certain rulings of the World Trade Organization Appellate Body and recent EC Commission decisions on State aids have brought new attention on an old issue: States can use their tax systems to provide subsidies. The basic assumption against subsidies is that markets should not be distorted by government's intervention. However, a system of taxation without government is unthinkable. A different criterion must lead to the distinction of measures necessary to the effectiveness and fairness of the tax regime from tax measures that distort competition.
AALS Panel – Global Legal Education – Legal Education in the New Europe and the USA: Shall the Twain Ever Meet?
Authors: Klimas Tadas
Published: March 2019

There are a myriad of avenues that could be taken by every person and organization each and every day. While perhaps opportunities should be taken advantage of, one must see the need. Some interests are not vital; whereas others are and should not be risked save in cases of grave necessity. And it is morally difficult to require heroism, such that some roads are not taken judiciously and others through lack of awareness or through the lack of requisite heroism.
The Takeover bids Directive
Authors: Maul Silja , Kouloridas Athanasios
Published: March 2019

On 27 November 2003 a political agreement has been reached in the Council on the compromise proposal for the Takeover bids Directive. On 16 December, the Parliament gave its approval and the proposal has still to receive the formal voting of the Council under the Irish Presidency in March 2004. Member States are required to transpose it into national law by 2006. The Directive regulates how a company or an investor that already has control in a listed company or seeks to obtain control can acquire securities in that company and applies to both voluntary and mandatory bids.
Liberty Dies by Inches: German Counter-Terrorism Measures and Human Rights
Authors: Zöller Verena
Published: March 2019

“I believe there is no trade-off to be made between human rights and terrorism. Upholding human rights is not at odds with battling terrorism: on the contrary, the moral vision of human rights – the deep respect for the dignity of each person – is among our most powerful weapons against it.”
The Autonomy of Law and the Formation of Network Standards
Authors: Vesting Thomas
Published: March 2019

In the recent discussion on Internet law and regulation it has often been argued that technical standards have a significant impact on the variety and diversity of the Net's communication flows. This Article extends this argument, focusing on the ability to constrain Net communication through “code” and “architecture” imposed by network technology, i.e., by a source of rule-formation and rule-making beyond the traditional law of nation-states. Although I am generally sympathetic to the position that a novel “Lex Informatica” poses new legal and political challenges for nation-states, it should, however, be clear from the outset that the attention for “code” and “architecture” is something different to a paraphrase of the ever-expanding role of technology in modern society. This has to be emphasized because the discourse of “the technological”, which was already a prominent subject in the anti-modernist debate during the Weimar Republic, still casts a shadow on the contemporary legal discussion about the role of technical standards on the Internet. Lawrence Lessig, for example, confronted with a strict anti-governmentalism of cyber-libertarians in the mid-nineties, argues inCode and other Laws of Cyberspacethat the Internet is regulated by “code”, i.e. “the software and hardware that make Cyberspace what it is”. “Code” itself is embedded in an environment of economic power and corresponding political interests. In a nutshellLessigpaints a picture in which the Internet is developing towards an intolerable density of control by powerful coalitions of technical experts and economic enterprises. This view may be convincing in some respects, but with his accent on “code”, Lessig comes very close to the anti-modernist reaction to the growing significance of film and radio in the early 20th century, inasmuch as both strands are based on the misconception of a technological superstructure steering the (media) world and its further evolution.
German hedge fund legislation: modernised but still old-fashioned
Authors: Lang Norbert
Published: March 2019

On January, 1st 2004 the new German Investment Act (Investmentgesetz – “InvestG”) has entered into force and has established a new legal frame for funds. Especially hedge funds are regulated by German law for the first time. Nevertheless the solutions, used to establish hedge fund investments in Germany in the past, remain legal and it is argued that they will continue to play a practical role. The new InvestG on the one hand modernises German law, but on the other hand still clings to a somewhat old-fashioned regulatory approach. At the same time there are efforts at the European level to harmonise European hedge fund legislation. As a result an analysis of the German hedge fund regulation has to deal with three different, partly overlapping regimes: A past, that is still not bygone (II.), a present which is still not modern at all (III.), and a near future that will bring more changes and probably lead to an up-to-date regulation (IV.). After an introduction to these three regimes, I shall conclude with a short summary pointing out the main deficits of the new German legislation (V).
The New Council Regulation (EC) No. 1/2003 on the Implementation of the Rules on Competition
Authors: Müller Felix
Published: March 2019

The new Council Regulation (EC) No. 1/2003 on the implementation of the rules on competition laid down in Article 81 and 82 of the EC-Treaty, which came into force on 1 May 2004, brings fundamental changes in the application of European competition law. It replaces the Antitrust-Regulation No. 17 which has been in force for more than 40 years. Regulation No. 1/2003 establishes a system of direct applicability of Article 81(3) EC-Treaty, which abandons the requirement of notification as a key element of the old system under Regulation No. 17. Under the new scheme set up by Regulation No. 1/2003 Article 81(3) will be directly applicable. This enables national competition authorities and national courts to apply Article 81 and 82 of the EC-Treaty in their entirety, including paragraph 3 of Article 81. Although the new regulation is to be considered as an important step in strengthening and reinforcing European competition policy, in particular in view of the enlargement of the European Union, the numerous changes involve uncertainties which call for adjustment. The following article gives an overview of the new enforcement system for Articles 81 and 82 of the EC-Treaty, set up by Regulation No. 1/2003.
Genesis and Development of Legal Protection before Community Courts: A review ofEva Drewes, Entstehen und Entwicklung des Rechtsschutzes vor den Gerichten der Europäischen Gemeinschaften, Duncker & Humblot, Berlin 2000.
Authors: Tohidipur Timo
Published: March 2019

The emerging of an early idea, – the idea of a united Europe in peace replacing the destructive force of nationalism – could not have been a proper blueprint for the formation of a European Society until the brute force of the two World Wars prepared the ground for the awareness of political, economical, and social necessities. The first chapter in the book of the European Union regarding this founding idea was written back in 1951/52 by establishing the European Coal and Steel Community (ECSC) as a Community based upon law. At first, followingJean Monnet's sectoral approach toward integration in connection with the idea of supranationalism, unifying element should have been the supranational administrative body called “High Authority” (former name of the Commission in the first ESCS-Treaty). Given that the ECSC arose on the basis of law, one of the first and most important questions seemed to be the need of legal protection framing and balancing the power of the nearly almighty High Authority. This need should be satisfied by the establishment of a European Court of Justice (ECJ) as a permanent Court in the ECSC-Treaty. Although the shape of the former European Community has been immensely changed and extended through the years of integrational process, the once established ECJ still remains the judicial core in the institutional structure. But how did the system of legal protection react on the defiances of the integrational process?
The Hamburg Terror Trials – American Political Poker and German Legal Procedure: An Unlikely Combination to Fight International Terrorism
Authors: Blaauw-Wolf Loammi
Published: March 2019

Recent German court decisions in the cases of Mzoudi and Motassadeq illustrate the dilemma of dealing with international terrorism in legal terms when politicians and intelligence services believe themselves to be above or beyond the law. These cases have already been discussed in a special edition of theGerman Law Journal. The focus in this article is to contextualise the outcome of these cases in the “war on terror” and to analyse legal retribution, vengeance and torture on a scale of possible ways to address mass violence. The escalation of Islamist fundamentalism has the potential to rock Western democracies in their very foundations. Counter terrorism-measures in stepping up security legislation is not dealt with as such here, neither is this a fully-fledged discussion of the law of peacekeeping and armed conflict with reference to “new terrorism”. The aim here is much more modest. It is a search for truth and ways out of a dead-lock.
National Courts, Global Cartels: F. Hoffman-LaRoche Ltd. v. Empagran, S.A. (U.S. Supreme Court 2004)
Authors: Buxbaum Hannah L.
Published: March 2019

In its most recent term, the United States Supreme Court heard a case arising out of the activities of a price-fixing cartel in the vitamins market. The defendants were a number of major international pharmaceuticals companies, including F. Hoffman-LaRoche, Rhone-Poulenc, Daiichi Pharmaceutical, and BASF, that had fixed prices for bulk vitamins and vitamin pre-mixes in markets around the world. The cartel, which has been described as “probably the most economically damaging cartel ever prosecuted under U.S. antitrust law,” is estimated to have affected over $5 billion of commerce worldwide. Previous proceedings against the participants in the cartel, initiated in Australia, Canada and the European Union as well as in the United States, included administrative investigations and criminal prosecutions of individual executives. In these various proceedings, the cartel participants were found to have violated antitrust laws in the United States and elsewhere, and were subjected to heavy – indeed, record – fines in many countries. By all accounts, the countries engaged in investigating and then prosecuting the cartel participants did so in full cooperation with each other. In particular, they made use of the mutual assistance and information sharing agreements that have become an important component of coordinated international antitrust enforcement.
Why Aren't German Penal Policies Harsher and Imprisonment Rates Higher?
Authors: Tonry Michael
Published: March 2019

It is common for reformist academics, human rights advocates, and political liberals to bemoan harsher public attitudes towards crime and criminals, populist posturing by politicians, and more repressive penal policies. Some years ago, sociologist David Garland, a leading scholar of this subject, described increasingly repressive strategies of crime control in contemporary Britain, Australia, and the United States, ‘and elsewhere, too'. Some years later Hans-Jörg Albrecht called Garland to task for that ‘and elsewhere, too,’ noting that what happens in English-speaking countries does not inexorably happen elsewhere and that penal policies in many Western countries were not becoming more repressive or more politicised in parallel with American and British developments.