bluuebunny/crossref_metadata_2025_split huggingface dataset:
Multi-Level Governance in Action: Access to Justice in National Courts in Light of the Aarhus Convention
Authors: Hadjiyianni Ioanna 
Published: April 2022

This article explores the multi-level governance of access to justice in environmental matters by analysing how the Aarhus Convention gains added force in the national legal order through its interpretation by the Court of Justice of the EU. In combination, the Aarhus Convention and its incorporation in the EU require national legal orders to grant wide access to justice, particularly to environmental non-governmental organizations (ENGOs). This article explores the interplay of the different levels of governance and analyses their distinct contribution, with the Aarhus Convention setting the general legal requirements at the international level, EU law refining such requirements vertically in relation to Member State obligations, and national law potentially implementing wide access to justice on the ground. While in some Member States, such access is assumed and has led to the emergence of strategic litigation, in others standing requirements are still interpreted narrowly. Within this context, the article assesses the applicable legal framework in Cyprus, whose legal system provides interesting opportunities to realize the combination of the different levels of governance in light of the added force of supremacy of EU law over constitutional provisions that determine access to courts. The Cypriot case study exemplifies the potential of a combination of international, EU, and national requirements, to require a move away from an unduly restrictive interpretation of standing, which has been largely followed to date.
access to justice, environment, non-governmental organizations, Aarhus, Cyprus, multilevel governance, CJEU, standing, locus standi, courts, European Union
The ‘Weakening’ of the Duty to Give Reasons in Italy: An Isolated Case or a European Trend?
Authors: Delsignore Monica , Ramajoli Margherita 
Published: April 2022

Despite the importance formally attached to the principle, the Italian legal system is witnessing a progressive ‘weakening’ of the duty to give reasons. This weakening process seems problematic from the perspective of the respect of the rule of law and effective judicial protection of individuals vis-à-vis the administrative action. This phenomenon though is not specific of the only Italian legal system. The analysis of European Law and of the provisions in selected Member States have shown the weakening of the duty to give reasons can be considered a widespread issue.
duty to give reasons, administrative measure, participation, administrative procedure
An Empirical Study of the Frequency and Distribution of Judicial Review in Resolving Public Procurement Disputes Within the UK: Proposals for Legal and Policy Reform
Authors: Cahill Dermot , Clear Stephen 
Published: April 2022

Unlike other EU Member States, existing studies on public procurement challenges in UK local government lack empirical analysis. The Law Commission has identified this as an area for review. Little is known about the frequency and distribution of such challenges within the UK. Consequently, observations made on the number of procurement disputes actually leading to judicial review applications are speculative. This article, for the first time, generates new empirical data on the subject and makes reform recommendations. Using data elicited from nearly 400 local government bodies, the national and regional frequency and distribution of such challenges is illuminated for the first time. Glaring inability by Local Government bodies to retain and retrieve data pertaining to Local Government procurement was revealed by the study; the frequency and distribution of challenges was seen to vary widely across different UK regions; the number of challenges has risen significantly following 2009 law and policy reforms (rather than reduce); and the insights generated in the article will support the Law Commission’s call for further study of internal administrative review systems within public bodies so the connection between administrative justice and those seeking natural justice in procurement disputes is better understood.
judicial review, local government, public procurement, freedom of information, policy reform.
The Application of EU Fundamental Rights During the Financial Crisis: EU Citizenship to the Rescue?
Authors: Kalaitzaki Katerina 
Published: April 2022

The procedure of challenging austerity measures for EU fundamental rights violations during the financial crisis has revealed a serious ‘review gap’ due to the – often atypical – nature of financial measures and the Charter’s limited application. This article examines a different way to address the ‘review gap’ by focusing on EU citizenship’s role to provide the ‘way into’ EU law, allowing Charter rights to be invoked in a broader scope of application that would encompass austerity measures challenges. Specifically, Article 20 Treaty on the Functioning of the European Union (TFEU) and the ‘substance of rights’ doctrine can provide that opening, when placed into a different jurisdictional test that also involves the ‘operationalisation’ of Article 2 Treaty on European Union (TEU). This ‘inverse applicability of EU law’ test will allow further rights to be judicially incorporated into the list already expressly articulated in Article 20 TFEU, creating a bridge between what are traditionally conceived as ‘purely internal situations’ and establishing the necessary ‘connecting factor’ to EU law.
EU Courts, Right to trial within a reasonable time, Excessive duration of court proceedings, Effective remedies, Damages liability of the EU, Economic harm, Non-material harm, Conditions for liability, Requirements for establishing harm and causation, Significance for EU damages liability law
Wage Theft in a Recession: Unemployment, Labour Violations, and Enforcement Strategies for Difficult Times
Authors: Fine Janice , J. Galvin Daniel , Round Jenn , Shepherd Hana 
Published: April 2022

During the Covid-19 pandemic and accompanying recession, millions of low-wage workers have become increasingly vulnerable to exploitation. Limited scholarly attention, however, has been paid to the relationship between rising unemployment, labour standards violations, and government enforcement capacities during periods of economic recession. In this article, we begin to draw out these connections. First, we turn to the case of the Great Recession of 2008-2010 in the United States to examine the relationship between rising unemployment and minimum wage violations, using Current Population Survey (CPS) data to estimate minimum wage violation rates by industry and demographic group. We find that minimum wage violations rose in tandem with rising unemployment, and were shouldered by some groups of low-wage workers more than others, and that they were unexpectedly affected certain industries more than others. We then use an analysis of internal complaint data filed with the San Francisco Office of Labour Standards Enforcement (OLSE) to illustrate that even during non-recession periods, the number of complaints received by industry are in some cases wildly disproportionate to the estimated violation rates by industry. This underscores the shortcomings of the complaint-based enforcement model, which is by far the most common mode of workplace regulation in the United States. Finally, we discuss how this empirical evidence points to the importance of developing alternatives to complaint-based models of enforcement – in particular, strategic enforcement and co-enforcement – especially during periods of high unemployment.
Strategic Enforcement, Co-Enforcement, Great Recession, Wage Theft, Minimum Wage Violations
Enforcement of Labour Law: The Case of Germany
Authors: Waas Bernd 
Published: April 2022

The article explores the question of how labour law provisions are enforced in Germany. First, the central role of the labour courts is examined. In doing so, it not only looks at the constitutional foundations, but also at the special features of proceedings before the labour courts. Then the role of works councils in enforcing labour law is highlighted. The role of trade unions is also examined in more detail, showing in particular that some would like to see their importance in this area strengthened. Finally, the role of public authorities is examined.
Enforcement of Labour Law in Germany: The Role of the Courts, the Works Councils, Trade Unions and State Authorities. General Questions, Constitutional Directions, Specific Regulations, Legal Policy Debate
Compliance and Enforcement in Italian Labour Law
Authors: Del Punta Riccardo 
Published: April 2022

This article examines the main compliance and enforcement techniques in Italian labour law. With regard to compliance techniques, three examples are examined: the sufficient wage, the vicarious liability rule in the case of outsourcing, and health and safety regulations in the light of the EU model. The importance of the strong presence of unions and workers’ representatives inside the workplace is also emphasized. The article then addresses the evolving role of the labour inspectorate in a modern enforcement perspective and the main rules and practices of courts dealing with employment matters, which traditionally play a crucial role in the Italian system.
Compliance Techniques – Unions’ Role – Enforcement – Labour Inspections – Labour Courts
Philip Pettit’s Republicanism and Labour Law: A Defence
Authors: McCormack-George Dáire 
Published: April 2022

Republican political theory has attracted the attention of a number of prominent academic labour lawyers in recent years with a view to providing a general theoretical or philosophical foundation for labour law. Engaging with and contributing to this emerging area of scholarly interest, this article endeavours to defend the possibility of a general republican theory of labour law by relying on the writings of Philip Pettit. Contrary to the arguments of these scholars, the paper suggests that at least some important parts of labour law could be explained and justified in the light of this particular version of republicanism and it is possible that many other if not all areas could be justified in the future. As Pettit’s republicanism is a work in progress, so too is the explanation and justification of labour law in the light thereof.
Philosophy of Labour Law, Perfectionism, Consequentialism, Republicanism, Freedom as Non-Domination, Philip Pettit, Social Justice, Political Legitimacy, Sovereignty
Patents in TRIPS-Plus Provisions and the Approaches to Interpretation of Free Trade Agreements and TRIPS: Do They Affect Public Health?
Authors: Xiong Ping 
Published: April 2022

The proliferation of regional or bilateral Free Trade Agreements (FTAs) has seen the adoption of an increasing number of TRIPS-plus measures to provide heightened levels of intellectual property protection. One implication is that protection of public health may be affected if access to medicines is restricted by the relevant patent provisions in these TRIPS-plus provisions. The interpretation approach adopted by WTO has led to an understanding of TRIPS in a manner supportive to public health. Many FTAs have established their own interpretation approach that will also impact on issues concerning access to medicines and public health. The patent provisions in the TRIPS-plus provisions seem to cause conflict between the protection of public health in TRIPS and that in TRIPS-plus regimes if higher levels of patent protection are adopted in FTAs. This article analyses the relationship between the approaches to interpretation of TRIPS and TRIPS-plus and discusses the impact of this interpretive relationship. This article examines the object and purpose of TRIPS and its subsequent developments for the interpretation of TRIPS-plus. This article then discusses the justification of heightened patent protection in the TRIPS-plus and the justification narrative upon the interpretation of the patent provisions in FTAs. This article then concludes that the interpretation of the patent protection provisions in the TRIPS-plus should be conducted with reference to TRIPS and its subsequent developments in order to harmonize TRIPS and TRIPS-plus in the context of public health protection.
Complementing Each Other or Stoking Further Complexity?
Authors: Lee Jaemin 
Published: April 2022

Over the years, international investment law and international trade law have taken their respective paths of development with each regulating distinct areas of international economic relations. Interestingly, however, a new trend seems to emerge in which the two legal norms interact and/or converge. This 'interaction' or 'convergence' is a double-edged sword. On the one hand, each norm could complement the other, so as to enhance the notion of rule of law in the respective areas. On the other hand, new problems such as multi-dimensional forum shopping will pose another level of complexities. Adjusting this convergence toward a right direction will be critical for the future framework of international economic law.
Trade and Investment Agreements: Implications for Health Protection
Authors: Stuckler David , McNeill Desmond , Barlow Pepita , Birkbeck Carolyn Deere , Fukuda-Parr Sakiko , Grover Anand , Schrecker Ted 
Published: April 2022

Trade and Investment Agreements (TIAs) have been widely criticized for their potentially negative effects on health. Many governments, particularly from low- and middle-income countries, have voiced concerns that mega-regional agreements such as the Trans-Pacific Partnership agreement, and the Transatlantic Trade and Investment Partnership, will erode governments’ scope for health protection, weakening for instance those options that remain permissible under World Trade Organization rules. Further, these mega-regional agreements will set default standards and rules of the game that even non-signatories will need to emulate in order to be competitive in the global market. This article begins by reviewing the changing structure of trade and investment policy, global production, and the relation between the two. The effects of TIAs on health are then analysed, based on some of the most relevant evidence. Key power asymmetries within the global trade and investment architecture are described, and the way they influence how trade rules are made, implemented and adjudicated. Section 5 examines a particularly striking and topical instance of such power asymmetries, investor-state dispute settlement provisions in TIAs, and their relevance to health. The article concludes with recommendations to mitigate the potential negative health externalities of TIAs.
Using Trade for Achieving the SDGs: The Example of the Environmental Goods Agreement
Authors: Monkelbaan Joachim 
Published: April 2022

Ensuring that trade contributes to sustainable development is an explicit objective of both the WTO and of the 2030 Agenda for Sustainable Development (including the Sustainable Development Goals or ‘SDGs’). The purpose of this article is to demonstrate how trade and technology together can be mobilized for achieving the SDGs and in particular for addressing climate change. The article first discusses the general linkages between trade, technology, sustainable development, and the SDGs. Then the article explores the contribution that trade in environmental goods and services (EGS) and the Environmental Goods Agreement (EGA) more specifically can make to achieving different SDGs. This assessment is among others based on a recent European Commission Sustainability Impact Assessment (SIA) on the EGA. The article therefore assesses the potential economic, environmental, and social impacts of the EGA. It rounds up by explaining the state-of-play of the EGA negotiations. The assessment was conducted through desk research, econometric and C02 modelling, and stakeholder consultation, including two regional workshops and an open questionnaire.
The Preferential Trade Conundrum and the Multilateral Market Access Negotiations in Agriculture
Authors: Dixit Diwakar , Parajuli Thakur 
Published: April 2022

Regional trade agreements have increasingly become important as a medium for effecting trade liberalization. The trend is not expected to recede. There is not to suggest that multilateral trading system under the WTO has to be relegated. Regional trade agreements may be a good avenue to pursue market access reforms, but they do have an obvious limitation in making a foray into rule-making. They rely rather heavily on multilateral trade rules and on the expectation that these fundamental trade rules are implemented so as to build upon them within the preferential setting. This is evident when one looks at the treatment of subsidies, regulatory measures, safeguards and other trade remedy instruments within these regional trade agreements. This article examines the situation of exports and imports in ten major agricultural trading countries or territories to assess the share of preferential trade in the overall trade profile. While the situation varies across the group, a significant share of trade continues to originate in or destined for countries under (MFN) Most-favoured Nation terms. In a number of regional trade agreements, including those involving the ten major countries, various sensitive agricultural sectors like dairy, meats, sugar, cereals have either been exempted from tariff elimination or preferential tariff treatment has been offered through a minor reduction in high MFN tariffs or tariff rate quotas. Tariff reforms for a number of such sensitive agriculture sectors have proven to be difficult partly because of the linkage between tariff policies and governmental internal policies and subsidies granted to such sensitive sectors. This linkage hinders commitments on tariff liberalization for the relevant sensitive sectors, especially in a preferential setting where domestic subsidy reforms might not be feasible. In order to exploit the synergy between regional trade agreements and the multilateral trading system and negotiations, it has been suggested in this article to consider reforms of sensitive agricultural sectors within the multilateral negotiations where both tariff liberalization and subsidy reforms may be pursued together.
Exploring Border Areas Between the Law of State Responsibility and WTO Law
Authors: Åhman Joachim 
Published: April 2022

This article examines the relationship between the law of State responsibility and WTO law, by focusing on three important, still rather unexplored, areas: acts and actors; circumstances precluding wrongfulness of an act; and cessation of a wrongful act. In certain respects, it is easy to see that WTO law contains special rules, replacing the general rules, or that there are no special provisions regulating State responsibility issues. However, one of the main arguments in this article is that, when examining the above relationship, it is more relevant to talk about ‘border areas’, than ‘borders’. In many cases, it will not be possible to draw clear borders be-tween general and special rules. For example, State responsibility rules can be applied directly in WTO dispute settlement, or used as tools for interpreting WTO provisions. But it can of-ten be complicated to determine whether there is a gap, calling for direct application, or if there is a special provision, which needs to be interpreted. To a large extent, the relationship be-tween the two regulatory frameworks is instead characterized by mutualism, where the under-standing of a certain concept in one framework can contribute to the understanding of the same concept in the other.
State responsibility; WTO law; act; actor; State organ; internationally wrongful act; circumstances precluding wrongfulness; exceptions; cessation; withdrawal.
WTO Legal Reform: The Need for Revisiting the Treatment Accorded to China as a Non-Market Economy in Trade Remedies
Authors: Ramírez Martínez Luis Carlos 
Published: April 2022

The case of China’s non-market economy treatment at the WTO might be the typical case where (economic) reality outdoes (legal) theory or, perhaps, expectations. By 2001, when the WTO let China in, its Protocol of Accession (PoA) included special trade remedies provisions regarding China’s economic model. Today, China and other members fight fiercely at WTO, and elsewhere, over the validity and scope of some PoA's expired rules that set out the commitments by which -arguably- China was expected to become a market economy by December 2016. Aimed at contributing to the debate, this paper analyzes and thus proposes elements for a reform to the WTO’s trade remedies legal framework, so as to solve those conflicts by means of multilateral negotiations in lieu of complex judicial adjudications. Negotiation is hence suggested as the most legitimate, pragmatic, and long-lasting means to ensure the preservation of the trade remedies mechanism. Otherwise, the use of de facto measures, coupled with increasing bilateral disputes, shall steadily undermine its creditworthiness.
WTO, trade remedies, China, negotiation, pragmatism, market economy.
Executive Powers within the International Trading System – A Comparative Analysis of EU, Swiss, U.S. and Canadian Frameworks
Authors: Beckerle Sebastian 
Published: April 2022

Varying approaches to structuring executive powers with respect to unilateral trade measures within various legal systems predominantly determine the status and development of international trade policies. By analyzing the related frameworks of the European Union, Switzerland, the United States and Canada, this paper not only elucidates procedural and institutional differences, but also examines to what extent the respective major trading players adhere to the fundamental doctrine of separation of powers. An overall analysis reveals a significant misbalance on part of the United States which proves to be a relevant factor explaining some of the current turbulences of the world trading system.
Executive powers, separation of powers, judicialreview, unilateral trade measures, economic sanctions, European Union, Switzerland, United States, comparativean alysis
Export Credit Guarantee and Prohibited Subsidies Under the SCM Agreement
Authors: Man Kim Sang 
Published: April 2022

Export credit guarantee or insurance covers non-payment risks in exports. Many countries have established export credit agencies (ECAs) to promote exports through export credits including export credit guarantee or insurance. Officially supported export credits have brought the concern that they may distort fair competition in international trades. Export credit guarantee or insurance programmes with inadequate premium rates are likely to fall under the prohibited subsidies. ECAs need to understand the requirements of the prohibited subsidies under the Agreement on Subsidies and Countervailing Measures (SCM Agreement). This article will discuss features and functions of export credit guarantee or insurance in international trades. This article will also discuss some issues concerning the elements of a subsidy and illustrated list of prohibited export subsidies with regard to export credit guarantee or insurance by analysing the relevant provisions of the SCM Agreement and WTO Panel or Appellate Body Reports.
countervailing measure, export credit, export credit insurance, export credit guarantee, prohibited subsidy, the SCM Agreement, subsidy