bluuebunny/crossref_metadata_2025_split huggingface dataset:
Domestic Procurement Linkages During the 1990s and the Chilling Effect of European Procurement Regulation
Authors: McCrudden Christopher 
Published: January 2009

AbstractThis chapter examines the effects of EC law on the adoption of domestic procurement linkages in Germany, the United Kingdom, the Netherlands, and France during the early 1990s. Although pervasive, EC procurement regulation was not the only or even the dominant element affecting the development of domestic procurement linkages. There were continuing purely domestic reasons for not adopting procurement linkages in particular countries, and this is illustrated through an exploration of the limits on the use of procurement linkages in Britain during the 1980s and 1990s.
Changing Approaches to Procurement Linkages in the Community and Beyond
Authors: McCrudden Christopher 
Published: January 2009

AbstractThis chapter discusses the reasons for the increasing popularity of procurement linkages generally in some countries. Two significant developments since the early 1990s are identified that affected the policy context in which procurement linkages came to be reassessed, both globally and in the EC: the growth of corporate social responsibility (CSR), and the increasing importance of environmental issues. Procurement linkages came to be seen as a useful tool for helping to deliver both these policies. Clarification of the legal position of procurement linkages under EC law was a third important additional factor contributing to such linkages. The more the procurement directives and EC law in general were seen as legally compatible with such linkages, the less the justification for not adopting them at the national level.
Rights in the European Landscape: A Historical and Comparative Profile
Authors: Graziadei Michele 
Published: January 2009

Abstract
This chapter examines several events in legal history that either highlight the importance of rights in the actual working of legal systems, or else challenge their importance. These events fit within the wider European framework which contains a variety of approaches to the topic. The chapter also considers national legal traditions concerning rights and their resistance to change. The main underlying argument is that the resilience of these national traditions in Europe is primarily linked to the intellectual legacy of the 19th century and its 20th-century aftermath, which is now in shambles. This unpleasant diagnosis has been around for a long time, but little has been done so far to remedy it. In this field, finding a cure means looking beyond national traditions and stereotypes, and recognizing that it is more productive to think in terms of a common European legal culture.
EU Rights and Discretion as Reflected in Spanish Public Law
Authors: García Ricardo Alonso , Soriano Leonar Moral , Martín Carmen Plaza 
Published: January 2009

Abstract
This chapter focuses on the main features and problems that the concepts of ‘rights’ and ‘discretion’ pose in Spanish law and on how such concepts influence the process of implementing EC law by national authorities. It looks at the way they are actually used in some EC instances and to what extent they diverge from the way in which they are used in Spain. First, the chapter gives an outline of the relevance of the concepts of rights and discretion in Spanish law. Second, it deals with the notion of rights and discretion as developed by the ECJ's case law in order to identify parallels or differences, i.e., convergences and divergences in the way they have been conceived and are used in the Spanish legal system. Finally, it studies the reception of EC rights and discretion in Spanish public law.
Democracy and Direct Effect: EU and National Perceptions
Authors: Vandamme Thomas 
Published: January 2009

Abstract
This chapter attempts to add a further dimension to the theme of discretion by expanding from application and enforcement of EU law to its transposition into national legislation. It focuses on two types of discretion: democracy discretion and direct effect discretion. The chapter explores whether these perceptions of discretion are indeed interrelated and, whether convergence between them is conceivable.
Binding Unity and Divergence while Creating a Common European Culture of Energy Regulation
Authors: Castiella Iñigo del Guayo 
Published: January 2009

Abstract
This chapter examines the problems arising from a lack of common understanding of what regulation is and what regulation should aim at within the efforts to create a European Internal Energy Market (IEM). It analyzes some terminological and conceptual legal problems arising from the efforts to build a true European Energy Market amidst the existence of both a significant number of disparate legal traditions within the EU in dealing with energy issues, and a reluctance on the part of Member States to give up their responsibilities in guaranteeing, among other aspects of the industry, the security of energy supply. In particular, the chapter underscores two main legal streams converging within the procedure to build a legal framework for energy at EU level: the system based on an Anglo-Saxon idea of economic regulation and energy regulation, and the systems of most continental countries based on the idea of public economic law, to which energy law belongs.
Conceptual Convergence and Judicial Cooperation in Sex Equality Law
Authors: Senden Linda 
Published: January 2009

Abstract
This chapter begins by considering the implications of the claim of legal unity in the EU. It then explores the issue of conceptual divergence in the specific area of sex equality law. It argues that EU equal treatment law imposes a certain standard of equality and non-discrimination, and it brings more unity into this area by establishing common — minimum — definitions. The possible unifying effects of this cooperation within the framework of the preliminary ruling procedure are assessed both at a general level and in the specific area of sex equality law. On that basis, it is then considered how the efficiency of the preliminary ruling procedure could be enhanced, in particular whether a distinction could be made between more fundamental and constitutional cases on the one hand and more technical ones on the other, the latter being less crucial with a view to realizing or preserving the unity of the legal order.
A Case of Multidirectional Constitutional Transplant in the EU: Infra-state Law and Regionalism
Authors: Bengoetxea Joxerramon 
Published: January 2009

Abstract
This chapter examines how a constitutional feature of some Member States — infra-state regionalism — penetrates the EU administrative and constitutional ethos at a point which is quite unexpected: the sacrosanct principle that the Member States are the building blocks of the EU. The approach hinges on the formal rights of states under international or supra-national organization law and on States' discretion, meaning the constitutional autonomy to organize themselves internally as they see fit. These two principles bring unity or at least give an appearance of unity into the system — a unity without uniformity or a unity which consists in not looking into the internal structure of the Member States.
Back to the Begriffshimmel? A Plea for an Analytical Perspective in European Law
Authors: Jääskinen Niilo 
Published: January 2009

Abstract
This chapter analyzes the Finnish analytical legal positivism in the forms it took from the 1950s to the early 1970s, and explores what kind of questions that approach would entail for the study of EU law. It argues that the message of analytical legal positivism may be relevant for the study of European law even today. It underlines the need to rethink and redefine the traditional conceptual apparatus used in legal reasoning and legal science.
Towards an Internally Consistent Doctrine on Invoking Norms of EU Law
Authors: Lenaerts Koen , Corthaut Tim 
Published: January 2009

Abstract
This chapter discusses the way in which EU norms can be invoked. It determines how, in dialogue with national courts, the ECJ has sent out diverging signals as to when norms of EU law can be invoked. On the one hand, divergence flows from conflicting conceptual approaches to invocability; on the other hand, it can be linked to the piecemeal construction of case law. Moreover, the introduction of the Third Pillar instruments has created further uncertainty. It is argued that divergence can be overcome. The chapter then restates an alternative reading of case law which recalls the role played by primacy in invoking norms of EU law.
What is Vagueness?
Authors: Smith Nicholas J. J. 
Published: January 2009

AbstractThis chapter presents a definition of vagueness. Section 3.1 explains what the task of defining vagueness involves, and why this task is important. Section 3.2 examines and criticizes existing definitions of vagueness. Section 3.3 explains a key notion necessary for an understanding of the book's definition of vagueness. Section 3.4 presents the definition and its key advantages are presented in Section 3.5.
Competence, Social Policy, and Public Services
Authors: Freedland Mark , Craig Paul , Jacqueson Catherine , Kountouris Nicola 
Published: January 2009

AbstractThis chapter presents a mainly EC level analysis of the important questions surrounding the regulatory competence of public services in Europe. The analysis points out that public services lie at the crossroads of national and supranational regulatory regimes, each interacting and shaping their functioning directly or indirectly. In this self styled type of ‘shared competence’, the European regulatory level is progressively carving out its space either through direct EC intervention, or indirect regulatory influences by other areas of EC law and policy that affect public services when in the presence of an ‘economic activity’. De-regulatory pressures (mainly in the form of negative integration introduced by the ECJ) and re-regulatory initiatives are also present and are partly limited by competence questions. But perhaps the most interesting findings are those that point out at the cyclical and simultaneous interactions between deregulation and re-regulation, national influences, and EC pressures.
Active Labour Market Policies: Between ‘Right to Work’ and ‘Workfare’
Authors: Freedland Mark , Craig Paul , Jacqueson Catherine , Kountouris Nicola 
Published: January 2009

AbstractThis chapter focuses on those employment measures commonly known as active labour market policies (ALMPs). It starts by providing a comparative historical analysis of ALMPs, suggesting that these measures effectively date back to the early 20th century. However, in recent years their content has been altered to encompass a higher proportion of supply-side measures, typically accompanied by more stringent qualifying criteria for the receipt of unemployment benefits. ALMPs have now become an effective mechanism for the control of the labour market. In light of these trends, the chapter questions the compatibility of some of the current forms of ALMPs with some notions of ‘right to work’ underpinned by human rights and decent work concerns.
The Relationship between Public Employment Services and the Unemployed
Authors: Freedland Mark , Craig Paul , Jacqueson Catherine , Kountouris Nicola 
Published: January 2009

AbstractThis chapter argues that the State is no longer seen as a provider of employment, but rather as a provider of ‘employability’ directly focusing on the unemployed (rather than on the labour market or the economy). One can observe a series of emerging trends in the delivery of ‘employability’ measures, and in particular the growing individualization, personalization, and contractualization of these employability ‘services’. These trends raise a number of problematic points (Are these real contracts? Are they illiberal contracts or unequal contracts? What should be the limits to administrative discretion in this sensitive area? What is the nature of the multilateral contracts including private contractors?), which are addressed in separate points.
Introduction
Authors: Tudor Ioana 
Published: January 2009

Abstract
This chapter examines the applicable law in an investment dispute by analysing article 38 (1) of the ICJ Statute, referring to general international law, and article 42 of the ICISD Convention, more specific to investment law. It concludes that, although arbitrators have to respect the national law chosen by the Parties in cases of a contractual claim, if such a choice exists, international law will continue to be relevant, and that a balance between national and international law has to be found. When in the presence of a treaty claim, international law will directly be applied.
The FET in International Investment Agreements: A Typology of Drafting Formulations
Authors: Tudor Ioana 
Published: January 2009

Abstract
This chapter presents the results of empirical research conducted on the basis of 365 bilateral investment treaties, and of the existing regional and multilateral treaties that contain a FET clause. The conclusion of this research is that there are five main drafting variations of the FET clauses in the examined treaties, and that each of these variations may have an impact on the meaning of FET. The wording of each FET clause is therefore essential in establishing its application in each case. The research also concludes that not all investment treaties contain a FET clause. In the presence of so many variations, the question arises as to the common denominator that ensures the coherence among them and the existence of a single standard.
Actual Situations in which the FET Standard has been Applied
Authors: Tudor Ioana 
Published: January 2009

Abstract
The FET standard may not be given a fixed content since it is a standard; therefore it is through its application to individual cases that it acquires content. An alternative method, therefore, for examining the content given to the FET is to analyse the actual situations in which it has been applied in existing case law. This chapter examines in detail, with extensive reference to case law, nine situations in which FET has been applied, namely: lack of respect for the obligation of vigilance and protection, denial of due process or procedural fairness, non-observance of the investor's legitimate expectations, coercion and harassment by the organs of the State, failure to offer a stable and predictable legal framework, unjustified enrichment, evidence of bad faith, absence of transparency, and arbitrary and discriminatory treatment.
Relationship Between the FET and the Other Treaty Provisions
Authors: Tudor Ioana 
Published: January 2009

Abstract
One of the conclusions of the first chapter was that the interpretation of the FET standard by the arbitrators is intrinsically linked to the wording of the applicable FET clause. This chapter analyses the relationship between FET and the other existing standards of treatment, namely full protection and security, non-discrimination, and most favoured nation clause. These standards may sometimes find themselves in the same clause and in this case they have a direct influence on the FET's meaning. Also, the chapter examines the relationship between FET and two other provisions often encountered in investment agreement, namely, the pacta sunt servanda provision and the obligation of non-impairment.
Balancing States' and Investors' Conduct: Calculation of Compensation
Authors: Tudor Ioana 
Published: January 2009

Abstract
This chapter concentrates on the calculation of the compensation in the event of a breach of the FET standard from the perspective of the exterior elements that may be taken into account, namely the behaviour of the investor and a special situation of the State (for example state of necessity and force majeure). It is argued that both types of elements play a role exclusively at the stage of calculating the compensation and are irrelevant at the stage of establishing the liability of the State for a breach of the FET standard. Each one of these elements is analysed in detail and are accompanied by relevant examples from case law. The initial unbalanced relationship between the investor and the State in front of the FET standard is rebalanced at the stage of compensation, achieving a really fair and equitable standard of treatment.
Reconsidering a Dogma: Conceptual Analysis, the Naturalistic Turn, and Legal Philosophy
Authors: Himma Kenneth Einar 
Published: January 2009

Abstract
This chapter responds to the most important considerations adduced against traditional conceptual analysis (TCA): (1) the denial of the distinction between analytic and synthetic truths; (2) recent research on the fallibility of ordinary intuitions; (3) the idea that all claims are revisable in the face of recalcitrant experience; and (4) the claim that even putatively conceptual claims are contingent in character. It argues that the most influential arguments for abandoning metaphysics and conceptual analysis are unsuccessful. For instance, the Quinean circle-of-terms argument, does not even get off the ground because his claim we should give up the concept of meaning because of its obscurity cannot bear the weight Quine places on it. Likewise, sociological arguments about the unreliability of intuition fail because they neither distinguish various forms of intuition nor consider the possibility that some forms are more reliable than others.
Towards an Inferential Semantics in Jurisprudence
Authors: Kletzer Christoph 
Published: January 2009

Abstract
Starting from the perception that jurisprudence still predominantly but mostly unconsciously operates under the paradigm of logical empiricism, this chapter presents the following arguments: (i) logical empiricism is a doctrine that stands under fundamental tensions, namely between its logicistic and its empiristic tenets; (ii) Quine tried to solve this incompatibility by redefining the ambit of logicism and by saving empiricism in its redefined form of naturalism; (iii) Wilfrid Sellars, on the other hand, resolved the incoherence of logical empiricism by attacking its core thesis of empiricism as such; (iv) insight into Quine's arguments necessitate a move from legal positivism to legal naturalism; and (v) insight into Sellars' arguments necessitate a move from legal positivism to a non-empiricist theory of law of which so far we have only two (probably flawed) examples: Hegel's theory of Objective Spirit and Kelsen's Pure Theory of Law.
The Attack on Liberalism
Authors: Reiff Mark R 
Published: January 2009

Abstract
This chapter discusses the fundamental differences between liberalism and perfectionism, and defends liberalism against one of the most serious accusations that perfectionists make against it — the claim that liberalism leads to nihilism. This is an exercise in politectonics — the study of how families of political theories clash when we abstract out to their basic themes and fundamental presuppositions. The chapter examines how liberalism is supposed to lead to nihilism, addressing the two different strands of this particular perfectionist criticism. It attempts to rebut each strand of this attack, ignoring for the moment the strategy of using one to rebut the other. It then assumes that one of these strands of attack is true, and explores whether we really have as much to fear from nihilism as both the opponents of liberalism and its defenders tend to believe. Finally, the chapter assumes that nihilism is both coherent and unattractive, but challenges the assumption that perfectionism can produce anything better, for even if liberalism leads to nihilism, perfectionism leads to fanaticism, and fanaticism presents a far greater threat to international peace and individual well-being than nihilism ever could.
The Educative Function of Law
Authors: Burge-Hendrix Brian 
Published: January 2009

Abstract
Classical philosophers paid considerable attention to the connection between law and education. They held that one of the primary functions of a legal system is to make its subjects aware of the set of norms that structured social and political life, and to persuade them to follow those norms. Today, however, it is rare to find any jurisprudential analysis, consideration, or even awareness of the law-education connection. This chapter offers an explanation for the lack of a concern with the law-education connection and argues that for the philosophical importance of law's educative function. We should be concerned with that function not only because it merits a place in our philosophical understanding of law, but also because it demands consideration in many other academic disciplines and sub-disciplines concerned with legal systems and their effects, including political philosophy, moral philosophy, legal sociology, and legal anthropology.
Number and Government
Authors: Grant Claire 
Published: January 2009

Abstract
This chapter examines Bentham's argument, and presents a qualified defence of it against objections about number and about egalitarian distribution. Bentham held that the principal aim of government was to guard against pains, and especially those inflicted by people upon other people. The chapter focuses on a particular calculus of pains, namely that elaborated in Bentham's copious writings on crime and its reduction. Bentham wrote extensively on the crime problem, and integrally to his most important treatises. His thinking in numbers about crime may be viewed as a testing ground for the merits of practical calculus, as well as for examination of his egalitarian credentials.
Soviet Veterans of World War II
Authors: Edele Mark 
Published: January 2009

Abstract
This book explores the fate of the millions of Soviet soldiers who survived the Second World War and returned to Stalin's state after victory, tracing the veterans' story from the early post‐war years right through to the end of the Soviet Union in 1991. It describes in detail the problems they encountered during demobilization, the dysfunctional bureaucracy they had to deal with once back, and the way their reintegration into civilian life worked in practice in one of the most severely destroyed countries of Europe. It pays particular attention to groups with specific problems such as the disabled, former prisoners of war, women soldiers and youth. Using a wealth of archival documents as well as the recollections of veterans, contemporary movies, periodicals, and literature, this book analyses the old soldiers' long struggle for recognition and the eventual emergence of an organized movement in the years after the dictator's death. The Soviet state at first refused to recognize veterans as a group worth special privileges or as an organization. They were not a group conceived of in Marxist‐Leninist theory, there was suspicion about their political loyalty, and the leadership worried about the costs of a special status for such a large population group. And as the book shows, these preconceptions were overcome only after a long, hard struggle by a popular movement which slowly emerged within the strict confines of the authoritarian Soviet regime.
Welcome to Normalcy
Authors: Edele Mark 
Published: January 2009

Abstract
Upon their return, veterans had to deal with an underdeveloped and overburdened but nevertheless unavoidable state bureaucracy: ‘Stalinist normalcy’. This chapter describes and analyses both the problems veterans encountered in their dealing with the bureaucrats, the structural origin of these problems, and the ways in which returned soldiers tried to get what they wanted or needed. The chapter is, thus, an investigation into a central aspect of Soviet everyday life: interactions with the state. It shows that only through active and stubborn individual lobbying through letters of complaints or supplication in person could veterans (with some luck) receive what they needed––and in some cases much more than that.