bluuebunny/crossref_metadata_2025_split huggingface dataset:
Judicial Redress of War-related Claims by Individuals: the Example of the Italian Courts
Authors: Oellers-Frahm Karin 
Published: May 2011

Abstract
Over the past few decades, in particular since the Second World War, human rights have gained increasing significance in international law. Traditionally, the individual, his or her rights, and the implementation of these rights on the international plane were completely dependent upon State action; the individual was barred from taking action him or herself, this was ‘mediaticized’ by the State. With the Charter of the United Nations (UN) and the adoption of numerous human rights instruments, some of them providing for judicial redress, and in particular with the realization of international criminal jurisdiction, the position of the individual in international law has improved dramatically. A provisional apex of this development has been reached with the claims brought by individuals before national, in particular Italian, courts against Germany concerning redress for violations of human rights during the Second World War. This chapter considers whether the judgments admitting the claims despite serious concern arising from traditional international law do maintain a balance between individual and community interests, or whether they over-emphasize individual rights, breaking with well-established and reasonable principles of international law.
From Individual to Community Interest in International Investment Law
Authors: Schreuer Christoph , Kriebaum Ursula 
Published: May 2011

Abstract
The protections granted to investors by international investment law would seem to epitomize individual interests. In fact, some of the criticism directed at investment law and especially investment arbitration is based on the charge that they serve the egoistical interests of big corporations often at the cost of a wider community. This chapter demonstrates that investment law is by no means exclusively governed by individual interests but is also receptive to community interest.
Diplomatic and Consular Protection: the Rights of the State and the Rights of the Individual in the LaGrand and Avena Cases
Authors: Sepúlveda-Amor Bernardo 
Published: May 2011

Abstract
Questions surrounding the rights of States and individuals under the Vienna Convention on Consular Relations (VCCR) have received significant attention from the International Court of Justice (ICJ) over the past two decades. In three cases before the Court, Paraguay, Germany, and Mexico have submitted claims in which they have sought to protect the individual rights of their citizens by applying the international legal principles of diplomatic protection and consular assistance enshrined in the VCCR. Within each of these cases, the Court has adjudged the respect for the rights of States and their nationals when finding that a breach of due process of law has occurred. Through the LaGrand case and the Avena case, respectively, Germany and Mexico have each played critical roles in preserving individual rights guaranteed by the VCCR.
Does the European Court of Justice keep the Balance between Individual and Community Interest in Kadi?
Authors: Streinz Rudolf 
Published: May 2011

Abstract
This chapter focuses on whether the ECJ has kept the balance between the individual's interest in human rights protection and the community interest to fight against international terrorism, bearing in mind that at the end of the day either interest is of concern to both the individual and the community. It argues that the ECJ in Kadi struck a proper balance between the nature of the security risk and the extent to which an encroachment on human rights can be justified, and outlined the procedure which must be observed when doing so. It struck the balance between security concerns as public interests and human rights as individual interests. The case demonstrates, however, the problem of combining the legal requirements of different levels.
Sailing the Wine-Dark Sea—An Unfinished Journey: Some very Preliminary Thoughts on Pirates and Other Pernicious People
Authors: Khan Daniel-Erasmus 
Published: May 2011

Abstract
The phenomenon of maritime piracy has terrorized the seas since time immemorial. The number of attacks worldwide having increased more than tenfold in the past two decades, the pirate menace has always constituted a challenge not only for seafaring nations, indiscriminately exposed to the peril of being set upon by these ‘pernicious people’. Rather, as long as the oceans have been plied for commerce, it has affected all those who benefit from seafaring — so, virtually the international community as a whole. Hence, from this perspective good reasons may indeed exist for pirates to be labelled ‘Hostis Humani Generis’ (enemies of mankind), a concept credited to the Roman lawyer, statesman, and political theorist Marcus Tullius Cicero.
A History of the Doctrine of Odious Debts: Serving Individual/Bilateral or Community Interests?
Authors: Reinisch August 
Published: May 2011

Abstract
Traditionally, the ‘odiousness’ of certain debts was determined by the particular harm to the debtor, for example, debts incurred to fight secessionist movements that eventually prevailed and established a successor State. It was thus largely determined by the bilateral relationship between predecessor and successor State. Today, the basis and content of the odious debts doctrine may have changed by including community interests in the notion of odious debts. This chapter investigates whether and, if so, to what extent community interests may have become more prominent in the odious debts discourse.
Privatization of Military Flights in the Mesh of International and National Law
Authors: am Busch Birgit Schmidt 
Published: May 2011

Abstract
The privatization of militarily motivated activities raises new questions under international and national law with respect to the conduct of third States. Because of the increasing practice of privatization of military functions, third States can easily become involved in the illegal conduct of other States. The application of the prohibition of inter-State complicity in illegal armed conflicts, which can be derived from various sources of international law, does not depend on the pattern of organization the aggressor State chooses for its preparatory actions. The key factor is whether authorities of the third State significantly contribute to the carrying out of the armed attack in awareness of the circumstances. In order to avoid Germany being responsible for a violation of the prohibition of inter-State complicity, Articles 25 and 26 Basic Law are to be interpreted as guaranteeing that each authority involved decides for itself whether support given to private contractors deployed by an aggressor State constitutes illegal complicit conduct. This is the most effective way to ensure that Germany does not participate in any illegal war activities of other States in times where privatization of essential sovereign functions has become a reality in international relations.
The Impact of Climate Change: Challenges for International Law
Authors: Schrijver Nico 
Published: May 2011

Abstract
The impacts of climate change challenge traditional notions in international law, most notably those relating to the principle of territorial sovereignty, with its presumption of defined territory and fixed maritime boundaries, and State responsibility with its presumption of liability and an obligation to make reparation. Furthermore, efforts to curb climate change have given rise — sometimes in conjunction with developments in other environmental regimes — to the evolution of some new principles and concepts of international law, including the principle of common but differentiated responsibilities, the notion of common concern of humankind, protection of vulnerable countries, and so-called flexibility mechanisms for industrial countries to implement their commitments under the Climate Change Convention. This chapter addresses a number of those challenges to international law. First, it reviews the principal international legal instruments adopted in response to climate change. Secondly, it examines the challenges of climate change to territorial sovereignty and Statehood, and, thirdly, to the maritime boundaries of coastal and island States. Fourthly, the relationship between climate change and human rights is reviewed. Fifthly, the chapter discusses whether the current rules of the international law of State responsibility represent the proper paradigm to address the problem of damage caused by climate change. Lastly, some final observations are made.
European Company and Financial Law: Observations on European Politics, Protectionism, and the Financial Crisis
Authors: Hopt Klaus J 
Published: May 2011

Abstract
This chapter presents the overall picture of the state of the art of European company law after the 2007/08 financial crisis. Citing a number of examples, it warns that the crisis has brought a temptation for many Member States to lock up their markets. The most obvious example is the regulation of third-country Sovereign Wealth Funds; but also that states may link bail out payments and subsidies to policies of the failing companies to save jobs at home and give preference to national contract partners.
Is ‘Protectionism’ a Useful Concept for Company Law and Foreign Investment Policy? An EU Perspective
Authors: Waymouth Crispin 
Published: May 2011

Abstract
This chapter examines the term ‘protectionism’ and whether it is possible to apply it meaningfully to company law and foreign investment policy. After looking at the various definitions of ‘protectionism’, it argues that whilst the word is perhaps useful as a general term for describing an economic ‘bad’ that should be avoided, it is nearly useless at describing specific actions, particularly in the regulatory field, and its employment today often risks doing more harm than good. The chapter sets out four alternative criteria—the general public interest, non-discrimination, proportionality, and predictability—and tests EU and Member State behaviour in company law and foreign investment policy against these. It concludes that there is a mixed picture and that more needs to be done to promote open investment, including through international co-operation.
The Takeover Directive as a Protectionist Tool?
Authors: Davies Paul , Schuster Edmund-Philipp , de Ghelcke Emilie van de Walle 
Published: May 2011

Abstract
The principal purpose behind the Takeover Directive in the eyes of the European Commission was to promote the integration of the national economies constituting the ‘single market’ and to enhance the competitiveness of European industry as against non-European rivals by facilitating takeover bids, especially cross-border ones. This chapter examines whether and, if so, to what extent the implementation of the Takeover Directive in the Member States has moved national laws towards the position in which takeovers are available to a significant extent as a technique for ‘the development and reorganization of European firms’. The chapter is organized as follows. Section II identifies the function of the board neutrality rule (BNR) in facilitating takeover bids. Section III analyses the choices created by the Directive in relation to the BNR by the Directive. It is shown that these choices exist both at the level of the Member State and at the level of the individual company. Sections IV and V report the evidence about the choices which have been made at both these levels, while Section VI concludes.
Cross-Border Restructuring—Company Law between Treaty Freedom and State Protectionism
Authors: Hansen Jesper Lau 
Published: May 2011

Abstract
Company law governs two important methods of restructuring—mergers and takeovers—that may be applied within the European Union and are as such protected by the freedom afforded by the Treaty. Both entail a change of control that may conflict with the desire of a Member State to protect certain industries and maintain its influence by special regulation in the form of golden shares and the like. This chapter explores this conflict to establish the balance of interests reached by the Court of Justice of the European Union in recent case law.
Mechanisms of Ownership Control and the Issue of Disproportionate Distribution of Power
Authors: Bernitz Ulf 
Published: May 2011

Abstract
The Takeover Directive is based on the view that takeovers should be encouraged as an instrument for EU company restructuring plans. Takeovers have even been considered to be a ‘condition for the survival’ of European undertakings within the context of international competition and a condition for the establishment of a European financial market. This chapter is organized as follows. Section II gives a description of the Directive and its aims and limits, with particular reference to the so-called breakthrough rule. Section III presents different European mechanisms of ownership control, based on the 2007 Report on the Proportionality Principle. Section IV discusses the system of multiple voting rights as applied in the Nordic countries, using Sweden as example, while Section V concludes.
Sovereign Wealth Funds—Market Investors or ‘Imperialist Capitalists’? The European Response to Direct Investments by Non-EU State-Controlled Entities
Authors: Schweitzer Heike 
Published: May 2011

Abstract
This chapter explores European attitudes towards Sovereign Wealth Funds (SWFs). Following a brief survey of the specific characteristics and relevance of SWFs and the response that the increased economic importance of state-controlled foreign direct investment has received in the US, it outlines the general approach of EU law to the direct involvement of EU Member States in European markets. It then asks how the presence of non-EU states in European markets can and should be addressed under EU law.
Sovereign Wealth Funds: Neither Market Investors Nor ‘Imperialist Capitalists’—A Response to Heike Schweitzer
Authors: Pistor Katharina 
Published: May 2011

Abstract
This chapter comments on the discussion presented in Chapter 12. It argues that Sovereign Wealth Funds (SWFs) are neither market investors nor ‘imperialist capitalists’, but rather they operate under mechanisms that escape a traditional classification under Western typology. They are deeply interwoven with the political system they serve and show patterns both of market and political strategy. It concludes that the West does not have to fear most of the SWFs.
The European Model Company Act (EMCA)—A New Way Forward
Authors: Andersen Paul Krüger 
Published: May 2011

Abstract
This chapter discusses the European Model Company Act (EMCA) project. The EMCA will be designed as a freestanding general company statute that can be enacted substantially in its entirety by the Member States, or they may enact selected provisions of the Model Act. This approach differs from previous European company law initiatives as it is a general settlement of the debate on which one of the two regulatory approaches is superior—regulatory competition or harmonization. The EMCA offers the Member States a harmonized company law, but leaves it to each Member State to decide whether it will offer its businesses the advantages given by harmonization. The major benefit from an integrated company law framework is that it establishes similar conditions for company shareholders and third parties all over the EU, thus facilitating cross-border investment and trading by ensuring shareholder rights and rebuilding investor confidence.
The Role of European Regulation and Model Acts in Company Law
Authors: Payne Jennifer 
Published: May 2011

Abstract
This chapter evaluates the European Model Company Act (EMCA) project. It considers the role that European regulation plays in company law generally; a role that has been dominated by the EU to date. Although EU harmonization has been mandatory, and has largely been confined to publicly listed companies, and therefore is not on all fours with the EMCA project, a consideration of these issues nevertheless raises important considerations for that project. The nature and benefit of the EMCA project are discussed.
How Does the Market React to the Societas Europaea?
Authors: Eidenmüller Horst , Engert Andreas , Hornuf Lars 
Published: May 2011

Abstract
When Council Regulation (EC) No 2157/2001 on the Statute for a European Company (Societas Europaea, SE) became effective on 8 October 2004, it offered existing publicly traded companies, for the first time, a choice between competing company laws, namely the national law of the company's home state and the law of the supranational SE. Using an event study methodology, this chapter analyses a unique dataset of publicly traded firms that have announced to re-incorporate under the SE Regulation. The findings offer insights into how the market accepts the new European legal form.
Empirical Notes on the Societas Europaea
Authors: Kirshner Jodie A 
Published: May 2011

Abstract
This chapter comments on the study presented in Chapter 16, which examined the impact that the decision to reincorporate as a European Company or SE has on the share price of companies, and what benefits the SE offers to corporate investors. It raises additional questions such as: To what extent does the data show an attitude towards the specific issue of co-determination? And can conclusions be drawn on possible benefits for other stakeholders, not only the shareholders that are represented in this study? In any event, the empirical study on the SE is considered pioneering work and a great first step towards the understanding of the value of this legal form and optional legal forms altogether.
7 John Opie
Authors: Junod Karen 
Published: May 2011

Abstract
This chapter discusses Amelia Opie's Memoir of her husband, the painter John Opie. It argues that Opie's Memoir marks a pivotal transition in the biographical writing of artists' lives in Britain. Unlike most other lives of artists published in Britain in the eighteenth century, Opie's Memoir portrayed her subject in a private setting. The domestic environment in which Amelia Opie set her biography marked a sharp contrast with the public and often cosmopolitan spheres in which earlier lives of painters had been inscribed. The private world in which Amelia chose to present her husband was not without its tensions, however. This chapter shows that the dynamic between biographer and subject was complicated by gendered issues, and especially by the biographer's conflicting duty and desire to pay tribute to the life of her spouse, while at the same time implicitly promoting her own work and career as a successful novelist.
Disobeying the Security Council
Authors: Tzanakopoulos Antonios 
Published: May 2011

AbstractThis book examines how the United Nations Security Council, in exercising its power to impose binding non-forcible measures (‘sanctions’) under Article 41 of the UN Charter, may violate international law, i.e., limits on its power imposed by the UN Charter itself and by general international law, including human rights guarantees. Such acts may engage the international responsibility of the United Nations, the organization of which the Security Council is an organ. The book then proceeds to examine how (and by whom) the engagement of this responsibility can be determined, i.e., who it is that can find the Council to have acted unlawfully. Most importantly, the book discusses how (and by whom) the responsibility of the UN for unlawful Security Council sanctions can be implemented, i.e., how (and by whom) the UN can be held to account for Security Council excesses. The central thesis is that States can react to unlawful sanctions imposed by the Security Council in a decentralized manner by disobeying the Security Council's command. In international law, this disobedience can be justified as being a countermeasure to the Security Council's unlawful act. Recent practice of States, whether undertaken by executives or, increasingly, by domestic courts, evidences an augmenting tendency to disobey sanctions that are perceived as unlawful. After discussing other possible qualifications of disobedience under international law, the book concludes that this practice can (and should) be qualified as a countermeasure.
Attribution of Conduct to the United Nations
Authors: Tzanakopoulos Antonios 
Published: May 2011

AbstractFor the international responsibility of the UN to be engaged, conduct susceptible of violating international law must be attributable to the UN rather than some other actor (e.g., a Member State). This chapter discusses the types of conduct in which the Security Council engages and the types of conduct that the Security Council strictly imposes on Member States. It argues that normative conduct of the Security Council, including ultra vires conduct, is automatically attributable to the UN. But it also argues that Member State conduct taken in implementation of Security Council commands is attributable directly to the UN, because it is normatively controlled by the Security Council's decision. This normative control amounts to effective control.
The Element of Breach: Sources of Obligations Incumbent upon the United Nations
Authors: Tzanakopoulos Antonios 
Published: May 2011

AbstractConduct that is attributable to the UN must also be in breach of the UN's international obligations in order to engage the organization's international responsibility. This chapter examines the sources and content of international obligations incumbent upon the UN, particularly when the organization is acting through the Security Council. It argues that the UN is bound by its own Charter, the lex specialis in this case, which includes the obligations to determine the existence of a threat to the peace (Article 39) and to take measures that are proportional (i.e., necessary and appropriate) to counter the threat. It is also bound by general international law, the lex generalis. This lex generalis includes both jus cogens, but also elements of the jus dispositivum, including human rights obligations, which is not automatically cast aside by the operation of Article 103 of the UN Charter.
Judicial Determination
Authors: Tzanakopoulos Antonios 
Published: May 2011

AbstractEven if one may theoretically argue that Security Council action has engaged UN international responsibility, the question remains as to who is competent to determine that the UN has become responsible. This chapter surveys the possibility there exists any court or tribunal, including the ICJ and domestic or supranational courts, that can either make such a judicial determination or that can ‘judicially review’ the acts of the Council. It argues that no court may authoritatively determine UN responsibility in this case with binding force. It further defines the notion of ‘judicial review’ as internal, hierarchical, binding, and systematic control of normative acts, and concludes that there can be no judicial review of Security Council action by any court.
Determination by States
Authors: Tzanakopoulos Antonios 
Published: May 2011

AbstractThis chapter argues that the conclusion reached in Chapter 4, that there is no court that can authoritatively determine UN responsibility for Council action or that can judicially review Council acts, is not surprising in international law. In a decentralized legal system, determination of responsibility takes place extra-judicially, by the subjects of the legal system themselves — in this case by States. States, acting as judices in causae suae, determine that the responsibility of the UN has been engaged themselves, and at their own risk. This determination, which is not precluded by the UN Charter, but only made more difficult by the existence of a presumption of legality of UN acts, may take place either through the action of executive (political) organs of the State, or through domestic courts.