bluuebunny/crossref_metadata_2025_split huggingface dataset:
Economic Analysis of Article 28 EC after theKeckJudgment
Authors: Russi Luigi 
Published: March 2019

European Union (EU) regulation of the free circulation of goods may be considered an eminent jurisprudential achievement; in fact, it has emerged from and been strengthened by the judgments of the European Court of Justice (hereinafter “the Court”).In particular, the Court's engagement with the prohibition on quantitative import restrictions and other measures having an equivalent effect established by Article 28 European Convention (EC), has paved the road towards integration. This was especially true of the Court's “milestone” decisions inDassonvilleandCassis de Dijon.The judicial parameter established by those judgments was built upon the interpretation of “quantitative restrictions” as encompassing any “measures hindering trade.” Although this has proven to be, for a limited period of time, an efficient instrument in pursuing Treaty goals, like the creation of a single European market, it has also produced a few side effects, including: (a) an excessive broadening of the field of Article 28 EC's application; and, consequently, (b) an increase in the number of claims the Court has had to examine. This has placed the Court in the position of having to weigh, more and more frequently, the content of national policies in order to determine whether the restrictions they impose can be justified.
Sentencing in Germany: Basic Questions and New Developments
Authors: Streng Franz 
Published: March 2019

Before delving into the details of a specific German theory of sentencing, this first section attempts to very briefly outline the general framework of the sentencing process according to German law.German law is codified law. This means that not only the individual crimes are laid down in the German Criminal Code, but also the general principles concerning sentencing are contained therein. The constitutional basis of the sentencing structure can be drawn from the notion of theRechtsstaat, which can be translated with the term “rule of law.” This principle, which is laid down in Article 20 § 1Grundgesetz(German Constitution – GG), encompasses the culpability-principle, under which the punishment must be proportionate to the individual guilt of the offender. Thus, section 46 § I of the Criminal Code (Strafgesetzbuch – StGB) reads: “the guilt of the perpetrator is the foundation for determining punishment.” The culpability-principle is a specific expression of the proportionality principle, which is also a constitutional requirement of the “rule of law.”
The Eighteenth Camel: Mediating Mediation Reform in India
Authors: Chodosh Hiram E. 
Published: March 2019

In the western part of India, on the edge of the Thar Desert, a wealthy camel herdsman died, leaving his seventeen camels to his three sons. His final wishes distributed the camels to his heirs in specific proportions: one-half to the eldest, one-third to the middle son, and one-ninth to the youngest. The sons quickly appreciated the immediate obstacle to complying fully with their father's wishes. How could they make this specific distribution? They could not wait for the camels to breed; nor did they choose to sell them off and share the proceeds because herding camels was all they had ever known. Accordingly, they decided to consult their village leaders from the local panchayat. Seemingly uncertain of the appropriate solution, one of the five elders suggested that the boys accept a loan of one of his camels, go home, think it over again, and return the camel to him on the very next day. Disgruntled by the ostensible futility of this advice, they returned to their tent, under their breath cursing the stupidity of the old man.While shaking their heads over tea, the youngest quickly rose in excitement. “Brothers,” he exclaimed, “we now have eighteen camels.” “So?!?,” the eldest mocked him, “we will have seventeen only tomorrow. What good will that do, you fool?!?” “But bhaya, with eighteen camels, we can divide them up according to the wishes of our papa: you get nine; our brother gets six; and I get two. That makes seventeen. We divide the herd, and give the eighteenth camel back to our elder!”
Europe as Transnational Law – A Criminal Law for Europe: Between National Heritage and Transnational Necessities
Authors: Safferling Christoph J.M. 
Published: March 2019

Criminal law is different, it is often said, from other areas of law in that it is rooted in and thus depends on national heritage to a great extent. This uniqueness is recognized by European institutions, as expressed by General Advocat Mazák in a case concerning the protection of the environment by means of criminal law:“In many respects, criminal law stands out from other areas of law. Availing itself of the most severe and most dissuasive tool of social control – punishments – it delineates the outer limits of acceptable behaviour and in that way protects the values held dearest by the community at large. As an expression essentially of the common will, criminal penalties reflect particular social disapproval and are in that respect of a qualitatively different nature as compared with other punishments such as administrative sanctions.
The German Supervisory Board on its Way to Professionalism
Authors: Lieder Jan 
Published: March 2019

The paper shows how the efficiency of the German supervisory board has been significantly improved in the last decade. These legal changes made the supervisory board climb to a higher position of power. In particular, the supervisory board is now significantly involved in the decision-making process on a company's overall strategic concept and on management decisions of fundamental importance. This emphasizes the future-oriented monitoring obligation of the supervisory board, which gained much more importance in the last decade. Furthermore, the new provisions increased the flow of information from the management board to the supervisory board, and they facilitated the monitoring efficiency of every single supervisory board member. In addition, several important changes improved the cooperation of supervisory board and auditors. The most recent changes strengthened the supervisory board's responsibility with regard to internal control and risk management.The vest majority of those changes in the German supervisory board system are very welcome. However, the current regime of German codetermination as well as the excessive size of the supervisory board has to be changed. Under the important developments on the European level, the time has come to act now in this direction. The advocated concept of codetermination by consensus provides a solid basis for more flexibility in the rigid German corporate governance system. It is also desirable to further limit the size of the supervisory board to no more than twelve members. Finally, the efficiency of the corporate governance system would be improved by allowing enterprises to choose between a one-tier and a two-tier board system.
Goods, Persons, Services and Capital in the European Union: Jurisprudential Routes to Free Movement
Authors: Connor Tim 
Published: March 2019

This Paper considers the jurisprudence of the Court of Justice in relation to the free movement provisions of European Community law in relation to goods, persons, services and capital within the European Union. It examines the bases used by the Court in its application of Community free movement provisions to national measures that may seek to hinder the exercise of such rights. From limited enquiry originally founded on considerations of non discrimination based on nationality, to one most recently focussed on the ‘restriction’ to the free movement right, the Paper examines the methods employed by the Court of Justice in its scrutiny of the national measure appearing to conflict with Treaty free movement rights.The examination of the applicable free movement jurisprudence attempts to demonstrate the want of a thematically consistent underpinning within free movement case law. The Paper draws attention to the complexities and even the confusions that appear to be inherent within free movement jurisprudence and arguably evidenced within the Court's journey from ‘discrimination’ to ‘restriction’ as the basis of the enquiry with regard to the application of Treaty free movement rights. In its consideration of Case C-110/05Commission v Italy, Case C-142/05Åklagaren v. Percy Mickelsson v. Joakim Roos, recent jurisprudence with respect to the free movement of goods, the Paper notes that in the context of the ‘measure having equivalent effect’, the emphasis in the assessment of the national rule has shifted to an examination of the effect on market access, rather than a distinction based on the type of rule.
Core of State Sovereignty and Boundaries of European Union's Identity in theLissabon – Urteil
Authors: Lanza Elisabetta 
Published: March 2019

In the 2009 judgment dealing with the Treaty of Lisbon, the German Federal Constitutional Court urges to modify a domestic statute in order to guarantee the rights of the internal rule-making power and also provides a reasoning on the role of the European Union (EU) as an international organization, the principle of sovereignty and the relations between European Institutions and Bodies and the EU Member States. According to the German Court the Treaty of Lisbon does not transform the European Union into a Federal State(Staatsverband), but into a Confederation of States(Staatenverbund).In spite of the 1993 landmark judgment, the so-called “Maastricht Urteil”, the Court steps forward and focuses also the subject-matters that necessarily have to pertain to the Member States jurisdiction, the so-called “domain reserve”. The German Federal Constitutional Court decision on the Lisbon Treaty arouses the reflection on the core of State sovereignty and on the boundaries of the EU legal system and focuses on the force of the right to vote of every citizen, the basis of democracy.Furthermore, the decision of the German Federal Constitutional Court highlights the well-known issue of the EU's identity and the balancing between EU democracy and Member State sovereignty. In the light of the German Constitutional Court statements, the present work aims to understand which could be actually the EU's identity and how could be approached “democratic deficit” of the EU.
Twenty Years of CJEU Jurisprudence on Citizenship
Authors: de Groot Prof. Dr. Gerard-René , Luk Ngo Chun 
Published: March 2019

The history of the European Union has been fraught with constant friction between the sovereignty of the Member States and the supranational powers of the Union, with the Union gaining terrain in fields of law traditionally belonging to the Member States. Despite this tension, certain legal fields are steadfastly asserted as belonging to the Member States. Notably, Member States regulate the grounds of the acquisition and loss of nationality. The Treaty of Lisbon highlights that the nationality of Member States is scarcely governed by European Union law, if at all. The sole provision governing the relationship between Member State nationality and Union law, i.e., Article 20 of the Treaty on the Functioning of the European Union (TFEU) stresses the primacy of Member State nationality.Reality, however, is often not as simple as such a cursory reading implies. European Union citizenship, once a mere complementary facet of the national citizenships, has transformed into an institution in its own right, forming a symbiotic relationship between the Member State nationality and the European Union.
Nationality and Identity Issues-A Danish Perspective
Authors: Ersb⊘ll Eva 
Published: March 2019

According to the European Convention on Nationality (1997), nationality-or the term “citizenship” used as synonymous with nationality-means a legal bond between a person and a state. As such, nationality is linked to nation building. Nationality can also be defined as equal membership in a political community, and as a status to which rights and duties, participatory practices and a sense of national identity are attached. In other words, nationality constitutes an important element of a person's identity.European Union citizenship is linked to nationality in an EU Member State. Union citizenship grants rights to the Member State nationals and may be defined as membership in a larger political community, the EU. Union citizenship is meant to foster a feeling of European identity. The third report of the Commission on Citizenship of the Union described citizenship as “both a source of legitimation of the process of European integration, by reinforcing the participation of citizens, and a fundamental factor in the creation among citizens of a sense of belonging to the European Union and of having a genuine European identity.”
The Future of Europol's Parliamentary Oversight: A Great Leap Forward?
Authors: Abazi Vigjilenca 
Published: March 2019

Secrecy profoundly challenges democratic oversight. Law enforcement cooperation, however, requires some space for discretion and confidentiality. This classical paradox within the context of the European Union is central in the current legislative debate on Europol's revision. The reform is initiated by the Commission's proposal in March 2013 and, for the first time in its history, the European Parliament has direct power to decide over the future of the intelligence agency.This article argues that we should not overestimate European Parliament's post-Lisbon prerogative for oversight, and particularly its access to Europol Classified Information, due to the architecture of intelligence exchange. The foundational principle of intelligence cooperation confers absolute discretion to the originators of information and Europol's “secrets” in almost all cases originate from the member states or third parties.The article offers a new legal and empirical perspective on the tensions of secrecy and oversight in the EU, and especially in the Area of Freedom Security and Justice. It discusses the internal information structure of Europol and suggests options for more plausible oversight arrangements.
Book Review- Victor Kattan's From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Conflict 1891-1949 (2009)
Authors: Xavier Sujith 
Published: March 2019

AbstractVictor Kattan's “From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Conflict, 1891–1949” is an archival excavation of the Israeli-Palestinian (Arab-Israeli) conflict and its origins. This review will examine the contours of Kattan's book followed by a brief examination of objectivity in academic scholarship often enunciated through the concept of ‘balance’ as it relates to those scholars (like Kattan) working on the conflict. Finally, this review will explore some of the weakness of the arguments that Kattan advances.
Legal Education in Ireland: A Paradigm Shift to the Practical?
Authors: Paris Marie-Luce , Donnelly Lawrence 
Published: March 2019

AbstractIrish legal education is under increasing pressure to reform and reinvent itself in the face of various challenges, especially those implied by the Bologna process. In line with two of the main priorities of the process, namely employability and student-centred learning, a growing number of Irish law faculties have incorporated, or are planning to incorporate, more practice-related components into the law curriculum and, in some cases, a fully fledged Clinical Legal Education programme. This is an important shift in the paradigm of legal education in Ireland which should be welcomed and encouraged by all stakeholders – students, academics, practitioners, judges and those involved in myriad capacities in the administration of justice.In the first part, a comprehensive presentation is given about the general structure of legal education in Ireland dealing with the main legal education providers, academic and professional requirements for legal training, as well as figures on the legal population and the approximate cost of legal education. The second part goes on to consider three views about the role of practice in Irish legal education, namely the ‘traditional’ view, the ‘holistic’ view and the ‘clinical’ view. These schematically presented views reflect different perspectives on the nature and purpose of legal education. They do not necessarily compete with each other, especially the last two which could arguably complement one another in the general renewal that Irish legal education is facing at the moment. The traditional view is that the status quo, i.e., in which practical elements are not a big feature of legal education at third level, has worked well and should, more or less, be preserved. The holistic view encourages the teaching of some element of practical preparation, but that this can best be provided to students by third level institutions through interdisciplinary courses that put law in context. The view which favours clinical legal education is that more can, and indeed should, be done to enhance the preparation of students for law practice, although it has to be pondered in light of economic realities, competing views about pedagogy and the Bologna context.
Global “Harmonious Society” and the Law: China's Legal Vision in Perspective
Authors: Choukroune Leïla 
Published: March 2019

“A harmonious society needs a stronger legal system that wields greater authority.”“He,” the Chinese character for harmony, is now in everyone's mind when thinking about contemporary China. Harmony and other ‘Confucian values’ seem to have penetrated all spheres of Chinese society, from the Communist Party's elite to business leaders and academics. But Confucius is both used and abused: quoting the philosopher at the start of the Olympic Games Opening Ceremony in a kitsch historical extravaganza featuring 3,000 men dressed up as his disciples does not clarify the true political meaning of an increasingly ideologically eclectic regime. On the contrary, it leads, to borrow Claude Lefort's term, to further “complications.” Thus, the interest in the idea of a ‘socialist harmonious society’ stems less from what it holds aloft than from what it hides.
Ukraine, International Law, and the Political Economy of Self-Determination
Authors: Özsu Umut 
Published: March 2019

AbstractThis article attempts to destabilize the assumption that self-determination can be restricted to a “purely legal” analysis of the sort to which most international legal scholars have conventionally confined themselves. It does so by focusing upon the conditions under which the legal rhetoric of collective self-determination came to be mobilized during the course of Russia's incursion into and subsequent annexation of Crimea in early 2014, as well as its ongoing deployment in the context of Russia's political, military, and financial support for self-declared “people's republics” in Donetsk and Luhansk. After briefly examining legal arguments in support of and in opposition to Russia's actions, the article argues that the Ukraine crisis problematizes the traditional reluctance of international lawyers to engage with the complex, and often counterintuitive, articulations of self-determination offered by participants in armed conflict. Recourse to self-determination cannot be understood without appreciating the concrete politico-economic pressures in response to which states are created and recreated. The alternately “lofty” and “cynical” formulations of self-determination that have characterized the ongoing struggle in and over Ukraine can only be understood in light of protracted competition between rival class projects that generate significantly different visions of world order. This compels us to confront the class dimensions of the concept of collective self-determination rather than continuing to conceive it as a purely national, or ethno-national, project of recognition or emancipation.
Beyond the Forms of Faith:Pacta Sunt Servandaand Loyalty
Authors: Davison-Vecchione Daniel 
Published: March 2019

AbstractThe need to fulfil treaty obligations in good faith bases both the principle ofpacta sunt servandaunder Article 26 of the Vienna Convention on the Law of Treaties and the principle of loyalty under Article 4(3) of the Treaty on European Union. This article seeks to understand the precise relationship between the two principles. It argues that the principles are different embodiments of the same root concept. In particular, it argues that loyalty is a more sophisticated and specific version of the concept, since it establishes that the relevant states and institutions must take account of each other's efforts to fulfill their obligations faithfully. While the Court of Justice of the European Union has observed the consequent need for greater flexibility when determining Member State liability, it has not done so consistently, especially in the context of EU external relations. Lastly, this article proposes that the presented conceptualization of loyalty andpacta sunt servandacould help us understand how other international subsystems might develop the basic concepts in general international law.
The Supreme Court of the United Kingdom and Preliminary References to the European Court of Justice: An Opencast Constitutional Lab
Authors: Fusco Alessia 
Published: March 2019

At the start of his paperKeeping Their Heads Above Water? European Law in the House of Lords, Anthony Arnull reports a judgment delivered by Lord Denning in 1979, in the early days of the process of the United Kingdom's European integration. It stated as follows:[The] flowing tide of the Community law is coming in fast. It has not stopped at high-water mark. It has broken the dykes and the banks. It has submerged the surrounding land. So much that we have to learn to become amphibious if we wish to keep our heads above water.Lord Denning made a similar remark in his judgment in Bulmer v. Bollinger, which was a pivotal case in the dialogue between the United Kingdom (UK) and European systems.
On the German History of Method in Civil Law in Five Systems
Authors: Haferkamp Hans-Peter 
Published: March 2019

AbstractGermany is the country of legal methodology. No other country saw such an intense academic discourse on the question of what jurists are able, allowed, and supposed to do when interpreting and applying the law. This German peculiarity is tightly linked to the history of the German Civil Code (BGB). Carefully worded and systematically precise, this codification had the potential to significantly limit judicial freedom; thus, its advent marked the beginning of the German methodological debates. The following Article examines this relationship, starting with the year 1874 (when preliminary work on the Civil Code began) and continuing with an analysis of the five political systems during which the BGB was in force: the German Empire (1900–1914), the Weimar Republic (1918–1933), the National Socialist period (1933–1945), the GDR (1949–1989), and the Federal Republic (1949–today). With the exception of the GDR, the methodological debates consistently show attempts to enable judges to adapt the law to real life conditions, or to political ideas in conflict with the BGB, without formally moving beyond extant law. At the roots of 20thcentury methodological debates, one can thus discern a profound mistrust of German legal academia with regard to both the legislature and the judiciary. Jurists had no confidence in the BGB, which was criticized for being inflexible, outdated, and politically unsound. They did not trust in the freedom of judges either, trying instead to somehow bind them, be it to “life,” “reality,” “justice,” “sense of justice,” “national order,” or “Christian Natural Law.” It was not until 1958 that the Federal Constitutional Court was entrusted with the task of dynamically shaping the guiding values of society, thus forcing both the legislator and the courts to adapt the BGB to these principles. As a consequence, the heyday of German methodological debates surrounding the BGB slowly came to an end.