sabato 31 dicembre 2011

Vacancy: Assistant Professor in EU Law Bocconi University - Department of Legal Studies

Assistant Professor in EU Law

Bocconi University - Department of Legal Studies

The Faculty of Bocconi University has an outstanding academic reputation in Europe and in the world recently confirmed by the global Financial Time ranking for 2011.
The Department of Legal Studies invites applications from outstanding scholars who can contribute to its growing School in the field of EU Law. Successful candidate will be able to provide clear evidence of intellectual excellence and the potential and ambition to establish a publication record in the leading journals in their field; moreover, they will have a PhD in a relevant subject. Experience of teaching at undergraduate or postgraduate level is desirable.
Salaries, research funds and teaching loads are competitive with leading academic international institutions.
Statement of interest and CV should be submitted via e-mail with attachments (PDF files preferred) to by writing in the subject line "Law - Junior Hiring".
Applications will be considered until January 12th, 2012.
Only selected candidates will be contacted for further steps.

mercoledì 28 dicembre 2011

Bonadio on Copyright Infringement

Court of Milan Holds Video Sharing Platforms Liable for Copyright Infringement

Enrico Bonadio

City University London - The City Law School

Mauro Santo

affiliation not provided to SSRN

Journal of Intellectual Propery Law & Practice (2012)

The Court of Milan found that the internet service providers Italia On Line and Yahoo! Italia were liable for copyright infringement in connection with the uploading of several videos on their platforms and that they could not rely on the hosting provider exemption under the E-Commerce Directive.
Number of Pages in PDF File: 3
Keywords: Copyright, Internet Service Providers' Liability, E-Commerce Directive
Full text available at:

mercoledì 21 dicembre 2011

A New Architecture for the Single Currency: How to Solve the Euro Crisis

Abel M. Mateus

University College of London (UCL)

November 29, 2011

The crisis in the Euro Zone is due to two factors: over-borrowing by some states and credit booms in others. The architecture of the Euro remains incomplete, due to lack of enforcement of fiscal discipline and an integrated bank supervision. The paper proposes a staged and comprehensive approach to complete the architecture with four pillars. The relaunch of the Euro needs once more a transition phase with a gradual fiscal and asymmetric adjustment with a decisive intervention by central institutions.
Number of Pages in PDF File: 9
Keywords: Euro, financial crisis, bank regulatory reform, monetary union, European integration

Wells on International Norms in Constitutional Law

International Norms in Constitutional Law

Michael Lewis Wells

University of Georgia Law School

Georgia Journal of International and Comparative Law, Vol. 32, pp. 429-436, 2004

Whether the Supreme Court should look to international law in deciding constitutional issues depends largely on what is meant by "looking to" international law. Some international norms are legally binding on American courts, either because we have agreed to follow them by adopting treaties or because they form part of the federal common law. I certainly agree that the Supreme Court, like the rest of us, ought to obey these aspects of international law. But the role of international norms in American courts has recently attracted attention for a different reason. In Lawrence v. Texas the Supreme Court, overruling Bowers v. Hardwick, struck down a statute that prohibited anal and oral sex between members of the same sex, on the ground that the statute violated the due process clause of the Fourteenth Amendment. In the course of the opinion, the Court cited a number of authorities, including a ruling by the European Court of Human Rights, in Dudgeon v. United Kingdom, that had invalidated similar laws. Other recent Supreme Court cases have made reference to decisions by international tribunals and other international norms, and Supreme Court justices, in their extracurricular writings, have championed the practice. Since nobody asserts that these rulings are legally binding on American courts, the Court's recent practice raises the question of why we should pay any attention to them.
Number of Pages in PDF File: 8
Keywords: international law, international norms, supreme court

Cohen on Fragmentation and Constitutionalization

From Fragmentation to Constitutionalization

Harlan Grant Cohen

University of Georgia School of Law

Pacific McGeorge Global Business & Development Law Journal, Vol. 24, 2011
UGA Legal Studies Research Paper No. 11-14

This short essay, prepared for a panel on “The Impact of a Wider Dissemination of Human Rights Norms: Fragmentation or Unity?,” explores the connection between two popular, but seemingly contradictory discourses in international law: fragmentation and constitutionalization. After disentangling and categorizing the various types of fragmentation international law may be experiencing, the essay focuses in on one form in particular, the “fragmentation of the legal community.” This most radical version of fragmentation, the essay argues, has spurred a number of responses, many of which suggest the beginnings of a constitutional conflicts regime for international law. The essay ends by suggesting and exploring three types of constitutional conflicts rules already in limited use: (1) constitutional comity rules, (2) constitutional hierarchy rules, and (3) constitutional abstention rules.
Number of Pages in PDF File: 19
Keywords: international law, fragmentation, constitutionalization, human rights


Eeckes on EU Autonomy and Decisions of (Quasi-) Judicial Bodies

EU Autonomy and Decisions of (Quasi-) Judicial Bodies: How Much Differentness is Needed?

Christina Eckes

Amsterdam Centre for European Law and Governance

December 21, 2011

Amsterdam Law School Research Paper No. 2011-50
Amsterdam Centre for European Law and Governance Research Paper No. 2011-10

Over many years the European Union (EU) has developed its own state-like foreign policy – newly labelled ‘external action’. One important dimension of this external action is participation in international legal regimes (membership in international organizations and signing of multilateral conventions). Because of the EU’s internal complexity participation in international legal regimes raises many issues of a constitutional nature. The Court of Justice has repeatedly been asked to scrutinize whether a particular case of participation is in compliance with EU law. In this regard, it is fair to say that the Court of Justice’s greatest concern has been the preservation of the EU’s autonomy vis-à-vis international (quasi-) judicial bodies. Indeed, it has not so far accepted to be submitted to the authority of any external (quasi-) judicial structure. The two most prominent examples of international (quasi-) judicial bodies that have had and will continue to have a normative impact on the EU are the dispute settlement mechanism of the World Trade Organization (WTO) and the European Court of Human Rights (ECtHR). As is well-known the EU is a member of the WTO, while negotiations for accession to the European Convention on Human Rights (ECHR) are on-going. Some of the questions addressed in this paper are: How does, will and should the Court of Justice deal with the decisions of these two (quasi-) judicial bodies? Why does the Court of Justice show so much concern for the autonomy of the European legal order? Indeed, should it be more concerned about the autonomy of the EU than constitutional courts are concerned about national autonomy?
Number of Pages in PDF File: 36
Keywords: legal autonomy, European Court of Justice, European Court of Human Rights, World Trade Organization

Full text available at: 

Postnational Rulemaking between Authority and Autonomy: Call for Papers

Postnational Rulemaking between Authority and Autonomy

Call for Papers

University of Amsterdam, 20 and 21 September 2012

The Project: The Architecture of Postnational Rulemaking
Our project investigates the architecture of postnational rulemaking from the views of public international law, European public law and European private law. We are interested in rulemaking processes that unfold below the radar of formal lawmaking but are powerful nonetheless. By way of example, we suggest that understanding or assessing rulemaking in the field of food safety requires looking at the interaction between the Codex Alimentarius Commission, the World Trade Organization and the European Union. In the field of pharmaceutical regulation we see how EU administrators turn non-binding standards on pharmaceutical testing into legal obligations for national actors. And in (European) private law we can observe how expert committees forcefully shape model rules that not only facilitate, but also guide, channel and de facto constrain the activity of private actors.
On top of striving to compare and combine views from the three fields of law, there are three elements that characterize our project and define the contribution is seeks to make. They all fundamentally challenge common narratives of legitimacy:
  • First, we examine the shifting sources of authority and do not take legal capacity or competence as a starting point for such authority.
  • Second, we focus on the process of rulemaking and on how actors or rules gain authority in this process – leaning and building on one another. This is highly relevant where no single actor could have produced a rule with authority, but actors’ interaction does precisely that.
  • Third, we examine authority and autonomy in the spaces between actors. Actors recognize or contest the authority of others. At this juncture lies a moment of autonomous will, and thus of legitimation. In short, we look at postnational rulemaking between authority and autonomy.
Our project on The Architecture of Postnational Rulemaking aims at elucidating shifts in authority and at carving out processes of rulemaking that involve multiple actors. In particular, we wish to focus on the interaction between them. We wish to understand these processes better, to develop normative assessments, and to contribute to the development of legal doctrine and theory in response to the phenomenon of postnational rulemaking between authority and autonomy.

The Conference
Our project took effect after a workshop in September 2011, which has guided its development. (Further information may be found on our website A year later, 20-21 September 2012, we again wish to engage with our peers. During the Conference we will explore both empirical and normative approaches to the themes outlined above, gathering contributions from the three fields of law that compose the project (public international law, European public law and European private law). We also seek to include contributions from related disciplines.
We plan to group contributions around the three themes mentioned above:
1.      Shifting sources of authority: papers should mainly analyze how authority to make rules is established in a postnational setting beyond instances of legal competence.
2.      Processes of rulemaking: papers should examine the processes through which rules are made as well as the qualities and characteristics of the actors involved in such processes. Contributions could investigate how regulations in specific fields of society have come about through the interaction of multiple actors of a different kind and on different levels of governance.
3.      Between authority and autonomy: papers should investigate how actors recognize or contest the authority of others. At this juncture might lie a moment of autonomous will, and thus of legitimation. Contributions might possibly link this issue to the relationship between legal orders.
The conference seeks to combine conceptual, normative and empirical analysis in a mutually supportive fashion.
We invite a small number of speakers and call for submission of proposals:
Submission of Paper Proposals
The research group on Postnational Rulemaking invites the submission of paper proposals that explore any of the topics outlined above. We are particularly interested in empirical studies that contribute to a better understanding of postnational rulemaking in any of the three fields of public international law, European public law and European private law. We welcome submissions from related disciplines.
Please submit a proposal of no more than 1000 words by February 28, 2012. Abstracts should include the proposed title for the paper and a synthesis of the main arguments. Please enclose a CV and mention your affiliation and contact details. Abstracts should be submitted in PDF to Angela Moisl (
The selection panel composed of Professors Deirdre Curtin, Martijn Hesselink and André Nollkaemper will consider all abstracts received by the submission deadline. A decision will be made by March 15, 2012.
Drafts of the full papers should then be submitted no later than July 1, 2012.
The best contributions will be published in the Working Paper Series of our project and will subsequently be selected for publication in an edited volume.
Reasonable expenses of participants will be covered (travel in economy class and accommodation to be arranged by the organizers).
For more information please contact Joana Mendes ( or Ingo Venzke (

Call for Submissions: Cambridge Journal of International and Comparative Law

From the website:

Call for Submissions for the Inaugural and Posterior Issues
The Editorial Board of the Cambridge Journal of International and Comparative Law (CJICL), an open access, double-blind peer review journal based at the University of Cambridge, is pleased to announce the CJICL are now accepting submissions for both the inaugural and posterior issues.
The Board invites long articles, short articles, case notes and book review submissions that broadly engage with the themes of public and private international and comparative law, as well as EU and transnational law. The CJICL is particularly interested in work that examines the intersection of different legal regimes – domestic, regional, transnational, international – as well as cutting edge international legal scholarship.
All submissions will be double-blind peer reviewed before a final decision on publication is taken. All long articles and some short articles will be sent to our Academic Review Board, which consist of a distinguished international and comparative law scholars and practitioners. A full list can be viewed on our website All other articles, case notes and book reviews will be double-blind peer reviewed by our Editorial Board.
The closing date for submissions is the 1 February 2012. Successful authors will be notified in April 2012 as to whether they will be published in one of our two substantive issues for the year 2011-12. Manuscripts must be submitted via our website – click on ‘Submissions’ at - by the closing date. Please see below for further information.
In addition to a call for submissions for the Journal, the Editorial Board would like to invite authors to submit c. 1000 word commentaries for our new online blog (available at, by e-mailing them to: with your name, institution and submission in a separate word (.doc) or richtext (.rtf) document.
Andrew Sanger and Rumiana Yotova
Editors in Chief of the Cambridge Journal of International and Comparative Law
Further Submission Information
The Journal accepts the following types of manuscript:
1. Long Articles between 6,000 and 10,000 words but not exceeding 12,000 words including footnotes;
2. Short Articles not exceeding 6,000 words including footnotes;
3. Case Notes including substantive analysis should be approximately 3000 words including footnotes (comparative methodologies, if applicable, are encouraged); and
4. Book Reviews not exceeding 2500 words including footnotes.
All copy must be submitted in Word (.doc) or Richtext (.rtf) format and must conform to our style guidelines, which are available on the submissions section of our website. The number of words in the text and (separately if possible) the footnotes should be stated.
Please ensure that your manuscript does not contain any reference to your personal or professional identity.

domenica 18 dicembre 2011

(Junior) Research Fellow in Public International Law

(Junior) Research Fellow in Public International Law

University of Tuebingen - Constitutional Law and Human Rights

The Chair of Public International Law, Constitutional Law and Human Rights at the University of Tuebingen (Germany) invites applications for the position of
(Junior) Research Fellow in Public International Law (available from 1 March 2012)
The (Junior) Research Fellow will be a member of the scientific staff of the Chair and collaborate in conducting research- and consultancy projects in the area of public international law, history and theory of international law and international organizations, human rights and general legal theory.
The position is a part time position (50%) initially for one year, with the possibility of renewal for up to two further years. The (Junior) Research Fellow will be able to conduct his/her own research projects and may enroll in the doctoral programme in law at the University of Tuebingen under the supervision of the holder of the Chair Jochen von Bernstorff. Doctoral dissertations may be written in English.
It is expected that the successful applicant will have
  • a strong interest in general public international law and academic research;
  • a good first degree in law or postgraduate qualification in law (BCL, MJur, LLM, MPhil or DPhil), in international relations, history or philosophy;
  • an excellent command of the English language (fluency). A basic command of the German language is only required if the researcher wants to enroll in the doctoral programme at the University.
Applicants must be eligible to work in Germany.
The University of Tuebingen is an equal opportunities employer. Preference will be given to suitably qualified women and persons with disabilities, all other considerations being equal, as they are under-represented in this field.
Applications should be sent, preferably by email, to Ms Marcella Cuttaia:, and include the following documents:
  • a curriculum vitae, including a list of publications;
  • contact details of two referees;
  • letter of motivation.
Prof. Jochen von Bernstorff (E-mail:

Kurrild-Klitgaard on European Integration

The Constitutional Dilemma of European Integration

Peter Kurrild-Klitgaard

University of Copenhagen


The paper analyzes European integration from a constitutional economics perspective. It is argued that the use of the Prisoners' Dilemma as a description of the advantages of European integration is fallacious. If the situation is a PD, the solution is impossible; if it is not, it is unnecessary.
Number of Pages in PDF File: 19
Keywords: prisoners dilemma, constitutions, constitutional economics, public choice, European Union
JEL Classifications: D70, D72, D62

Caponi on Mediation and State Civil Justice

Mediation and State Civil Justice

Remo Caponi

University of Florence - Dipartimento di Diritto Privato e Processuale

Opinio Juris in Comparatione, Vol. 2, pp. 1-7, December 2011

The promotion of mediation is element of the access to the courts. Mediation should not be a remedy for inefficiencies of the state civil justice system, but should have an “added value” in relation to it, even tough the state courts work effectively and efficiently. Accordingly, mediation should not be encouraged in all cases, but only in those categories of disputes which are better suited than others to be resolved through mediation. One category is where the parties are members of a group or maintain a long-term social or economic relationship. The civil process is intended to ascertain the past and, as a rule, does not take into account the future. For this reason it often results in a conclusive breakup between the parties. Instead, mediation can broaden the perspective and help maintain future relations between the parties. Another category is that of small claims, often those of consumers. In these cases the average length of the civil procedure and the lawyer’s fees are disproportionate in relation to the small value of the dispute. So the consumer often does not claim his right before the courts. Mediation is an alternative that costs less than the civil procedure. Frequently, consumers injured by an illegal act are many and fall into a class. When there are questions of law or facts at stake which are common to the class, and the claims are typical, the most efficient solution is not an individual mediation but a class action eventually followed by a collective mediation.
Number of Pages in PDF File: 7
Keywords: Mediation, State Civil Justice

Waldron on Dignity

How Law Protects Dignity

Jeremy Waldron

New York University (NYU) - School of Law

December 15, 2011

One way in which law protects dignity is by enforcing human rights provisions that explictly or implicitly involve the protection of dignity or the prevention of degradation. But law's connection with dignity is also much deeper and more pervasive than this. In the way that it operates, in the way that it presents its requirements, in the way law expects its requirements to be taken on baord and observed by those to whom the requirements are primarily addressed, in the procedural way that it organizes hearings, in the way that it sponsors argumentation, even in the way that it arranages for coercion--in all these ways, law treats humans as dignified agents, capable of self-control, with a sense of themsleves and their interests, and with the ability to respond intelligently and thoughtfully to its demands. These ideas, which originate with some comments by Lon Fuller, in "The Morality of Law," are developed extensively in the present paper. Of course it is true that law is sometimes brutal and degrading in its application; but the paper argues that it is part of law's inherently aspirational character to deal with human persons as dignified agents, and that this distinguishes legal forms of control from other modes of governance.
Number of Pages in PDF File: 25
Keywords: agency, coercion, dignity, Fuller, legal argument, legal process, normativity, procedures, representation, respect, rights, rule of law

Bourgeois on China and the WTO Dispute Settlement Mechanism

China and the WTO Dispute Settlement Mechanism

Jacques H.J. Bourgeois

College of Europe, Bruges

Opinio Juris in Comparatione, Vol. 2, pp. 1-37, December 2011

This working paper elaborates on China’s approach towards and use of the World Trade Organisation (WTO) Dispute Settlement Mechanism (DSM). It builds on statistical data and existing opinions in the literature to demonstrate the evolution of China’s behaviour as a participant in the DSM. It also endeavours however to take the analysis one step further and to determine whether China’s adherence to the DSM may be less genuine than this of the other WTO Members, notably in comparison to its main trading partners – the European Union (EU) and the United States of America (US). To this end, an examination of China’s arguments put forward as a respondent in WTO proceedings is undertaken in search of suggested restrictive interpretations of its obligations under the WTO Agreement. The paper goes on and poses the question whether indeed such attitude could be characterised as systematic and whether traditional sovereignty-bound considerations underlie it. Conclusions are drawn as to the existing balance between national regulatory autonomy and global governance in the WTO legal system, the importance of which may go beyond China’s economic and political context.
Number of Pages in PDF File: 38
Keywords: China, World Trade Organisation, Dispute Settlement Mechanism

Schneiderman on Global Constitutional Law

A New Global Constitutional Order?

David Schneiderman

University of Toronto - Faculty of Law

RESEARCH HANDBOOK ON COMPARATIVE CONSTITUTIONAL LAW, pp. 189-207, Rosalind Dixon, Tom Ginsburg, eds., Edward Elgar, 2011

Accompanying the rise of new transnational legal rules and institutions intended to promote global economic integration are questions about the linkages between transnational legality and constitutional law. In what ways does transnational economic law mimic features of national constitutional law? Does transnational law complement in some ways or supersede in other ways what we typically describe as constitutional law? To these questions we can now add the following: are transnational rules and institutions a proper subject of study for comparative constitutionalists? This chapter makes a case for the incorporation of forms of transnational legality into comparative constitutional studies. Taking as its focus the regime of international investment law, I argue that an appreciation of the constitutional functions of transnational legality deepen understandings of how constitutional law develops within, across, and beyond national systems of law. More specifically, elements of transnational legality can help to explain the phenomenon of convergence and divergence in constitutional law. This expansion of the comparativist’s toolkit of resources, though challenging conventional understandings of constitutional law as grounded exclusively in states, better captures current developments.
Number of Pages in PDF File: 20
Keywords: comparative constitutional, international investment law, national constitutions

venerdì 16 dicembre 2011

Marimon on European fiscal union

From the Max Weber Programme Blog:

Larik on Internationalisation of Constitutional Law

Shaping the International Order as a Union Objective and the Dynamic Internationalisation of Constitutional Law

Joris Larik

European University Institute - Department of Law (LAW); Dresden University of Technology

November 22, 2011

CLEER Working Papers No. 2011/5

Shaping the international order according to the Union’s values is not just a political ambition, but is also enshrined in EU primary law in the form of the external objectives of the Union. These have been streamlined and expanded significantly with the Lisbon reform (above all Arts. 3(5) and 21 TEU). However, scholarship has not given these objectives an altogether warm welcome, often dismissing them as strange, superfluous or mere wishful thinking. The aim of this paper is to put these external objectives into the wider context of the ‘dynamic internationalisation’ of constitutional law around the world and approach them as part of a constitutional norm category. It is argued that in contemporary constitutional law, externally-oriented objectives are not unusual, but indeed increasingly commonplace. Moreover, at least in German and French legal scholarship, constitutional objectives have received considerable attention and are acknowledged as legally binding, in principle justiciable norms of constitutional rank, setting objectives apart from mere ‘soft law’. This also applies to externally-oriented objectives, even though a wider margin of discretion pertains to the executive branch as the main actor in the area of foreign affairs. Applying these findings to the EU, it can be concluded that the Union’s external objectives are indeed legal norms in the vanguard of a global trend in constitutional law.
Number of Pages in PDF File: 41
Keywords: European Union constitutional law, EU external relations law, Union objectives, constitutional objectives, foreign policy, foreign relations constitution, comparative constitutional law, internationalsation, Staatsziele, Staatszielbestimmungen, objectifs de valeur constitutionnelle, soft law

Alemanno on Tobacco Display Bans after the Philip Morris Judgment

The Legality, Rationale and Science of Tobacco Display Bans after the Philip Morris Judgment

Alberto Alemanno

HEC Paris - Law Department

European Journal of Risk Regulation, Vol. 4, 2011

The EFTA Court’s judgment in Philip Morris vs Norway, delivered on September 12, 2011, is one of the first decisions adopted by an international court upon the legality of an entire new generation of tobacco control measures, such as visual display bans at point of sale, with trade rules. As a result, this ruling is noteworthy not only for the originality of its underlying legal reasoning and final outcome, but also for its impact on future judicial and legislative developments related to tobacco control across the world. Besides its immediate impact on Norway and Iceland – the first country in the world to introduce visual display ban of cigarettes in 2001 – this judgment is set to determine also the legality of the existing visual display bans adopted in the EU: in Ireland, United Kingdom and Finland. More crucially, its outcome is expected to shape the on-going revision of the EU Tobacco Products Directive at a time in which the EU Commission is considering the introduction of a EU-wide visual display ban.

This analysis provides a detailed legal analysis of the Philip Morris’s judgment and it also predicts the overall impact of the ruling within the broader legal and policy debate concerning the future of tobacco control policies in the European Union and beyond.
Number of Pages in PDF File: 11

Martinico on National Judges and European Law(s)

The National Judicial Treatment of European Laws: Are National Judges Extending Primacy and Direct Effect to the ECHR?

Giuseppe Martinico

Centro de Estudios Politicos y Constitucionales, Madrid; European University Institute - Department of Law (LAW); Centre for Studies on Federalism (CSF)

Sant'Anna Legal Studies (STALS) Research Paper No. 5/2011

The aim of this study is to answer the question: “Are national judges extending the structural EU law principles (primacy and direct effect) to the European Convention on Human Rights”?

This paper investigates the similarities and differences between the national judicial treatment of the ECHR and EU laws in the context of some selected constitutional experiences. It examines whether or not national judges treat the ECHR and EU law in the same manner, and the extent to which they facilitate the convergence of these laws. In this respect the goal of the project is to study the judicial application of the ECHR and EU law to analyse the vertical relationship between the national judges (both constitutional and ordinary judges) and these forms of external laws. As such, I am not interested in the horizontal convergence between the European Court of Human Rights and the European Court of Justice (ECJ). Rather, my investigation is limited to the vertical dimension of convergence. Obviously these two dynamics are strongly related and both European courts have undergone deep transformations in the last few years, especially after the enlargements of the EU and the Council of Europe.
Number of Pages in PDF File: 26
Keywords: European Union Law, National Courts, European Convention on Human Rights

Closa on Memory and European Integration

Dealing with the Past: Memory and European Integration

Carlos Closa

Consejo Superior de Investigaciones Científicas CSIC

December 14, 2011

Jean Monnet Working Paper No. 1/11

Memory has become an object of dispute in the EU. Different groups and states do not have a full convergence of views and this raises the question as to whether the EU should or should not be involved. A pluralist conception of justice would argue that the recognition of memory is not excluded as a form of justice. Adopting this view, this paper argues that the recognition of memory can be addressed at the EU level if the different components of justice are allocated to the proper spheres (recognition, retribution and recognition) and levels (national and European).
Number of Pages in PDF File: 43
Keywords: EU integration, memory, justice

Bellamy on Market Freedom and Democracy within the EU

The Liberty of the Moderns: Market Freedom and Democracy within the EU

Richard Bellamy

University College London - Department of Political Science

Global Constitutionalism: Human Rights, Democracy and the Rule of Law, Vol. 1, No. 1, 2012

Taking its cue from Benjamin Constant's famous comparison of the liberty of the ancients with that of the moderns, this article examines the compatibility of democracy with free markets within the EU. Constant argued that commerce had replaced the political liberty of the ancients with the civil liberties of the moderns. Nevertheless, he contended a degree of political liberty remained necessary to guarantee these civil liberties. The difficulty was whether the political system could operate in the interest of all if modern citizens had ceased to identify with the public interest in the manner of the ancients and preferred to pursue their private interests. Constant believed representative democracy offered a form of political liberty that was compatible with modern liberty. It involved a less demanding view of civic virtue to ancient liberty and a different conception of the public interest as promoting rather than in conflict with private interests. However, for it to operate as Constant expected required certain social and cultural conditions that emerged in European nation states but are not themselves the products of commerce and may even be undermined by it: namely, a national identity; a social contract between citizens; and political parties. The EU involves a further deepening of modern commercial liberty beyond the nation state. This article explores three main issues raised by this development. First, have any of the three elements that facilitated the operation of representative democracy within the member states evolved at the EU level? Second, if not, is it possible to create an effective form of representative democracy on a post-national basis as the logical entailment of the liberties of the moderns? Third, if neither of these is possible, can we simply detach modern liberty from political liberty and see social rights as attributes of free movement, and efficient and equitable economic regulations as the products of technocratic governance? All three questions are answered in the negative.
Number of Pages in PDF File: 43
Keywords: constant, EU citizenship, freedom, democracy

Lavranos on Arbitration

Is an International Investor-to-State Arbitration System Under the Auspices of the ECJ Possible?

Nikos Lavranos

European University Institute (EUI)

December 16, 2011

Almost two years into the Lisbon Treaty, it has by now become general knowledge that the EU has obtained explicit exclusive external competence in the area of Foreign Direct Investment (FDI) (Article 207 (1) TFEU). This transfer of competence from the Member States to the EU has created a host of major problems and raised many complex legal, institutional, economic and political questions, which will keep many of us busy for a long time.

Suffice to mention the still unresolved faith of existing extra-EU and intra-EU Bilateral Investment Treaties (BITs) of the Member States, the lack of definition of what FDI actually encompasses, and more generally, the lack of a clear delineation of the distribution of competences between the EU and its Member States with regard to FDI. More fundamentally, it remains to be seen how the European Parliament (EP) is going to use its new co-legislative powers concerning FDI in order to introduce non-trade concerns into this policy field. This list could of course be extended much further, but this contribution will leave these issues aside. Instead, I will merely try to answer the simple but very relevant question of whether, and if so, to what extent an international investor-to-state arbitration system under the auspices of the ECJ is at all possible.

Since the Treaties do not contain an outright – positive or negative – answer, one must turn to the jurisprudence of the ECJ. So far, the ECJ has not explicitly and directly addressed this question either. However, the ECJ has in the past issued several related Opinions and rendered many relevant judgments, which – taken together – should provide for a sufficient basis in order to answer the question to an extent that goes beyond mere speculation.

In the first place, the ECJ has made its views known as to the conditions and limitations of establishing and using international arbitration dispute settlement systems for resolving disputes between EU Member States.

In the second place, and most recently in Opinion 1/09 , the ECJ has quite clearly explained the limits for establishing an international court system for resolving disputes between private parties.
Thus, whereas the ECJ has not yet directly addressed the for our purposes relevant configuration of investor-to-(Member)state dispute settlement system within the European legal order, the approaches taken so far by the ECJ concerning Member State-to-Member State dispute resolution and dispute resolution between private parties, provide clear indications of how the ECJ would determine the question of allowing an investor-to-state arbitration dispute settlement system within the European legal order.

In other words, by using the detour of relying in analogy on the existing ECJ jurisprudence, an attempt is made to extrapolate the position the ECJ is likely to take for the configuration of investor-to-state arbitration.

The starting point of the subsequent analysis will thus be Opinion 1/09, enriched by other relevant Opinions and judgments such as Opinion 1/91 and MOX plant . The working hypothesis for this contribution is that the EU is competent to conclude - together with the Member States - comprehensive FTAs that include investment chapters as well as stand-alone EU BITs as mixed agreements.

Furthermore, it is assumed that such FTAs and EU BITs will contain full-fledged international investor-to-state arbitration rules or systems that are comparable to what is currently the best practice of the Member States’ BITs.

The analysis will proceed by first shortly recalling the main reasons for including investor-to-state arbitration systems in practically all BITs. After having thus established the rationale and functioning of such systems in international (investment) law, the analysis will turn towards the situation within the EU, in particular as determined by the jurisprudence of the ECJ. Finally, some concluding remarks will wrap up this contribution.
Number of Pages in PDF File: 16
Keywords: investor-to-state arbitration, ECJ, exclusive jurisdiction, European legal order, Opinion 1/09

lunedì 12 dicembre 2011

Pizzorusso e Ruggeri sul referendum abrogativo

dal sito di "Quaderni costituzionali"

A.Pizzorusso, "Sull’ammissibilità di un referendum abrogativo di disposizioni abrogative o modificative di una precedente legge e implicitamente ripristinativo di disposizioni da questa abrogate o modificate"

A.Ruggeri, "Abrogazione popolare e “reviviscenza” di leggi elettorali"

venerdì 9 dicembre 2011

D'Aspremont on Formalism in International Law

Formalism and the Sources of International Law: Introduction

Jean D'Aspremont

University of Amsterdam


This paper constitutes the introduction of the monograph 'Formalism and the Sources of International Law - A Theory of the Ascertainment of Legal Rules' (OUP, 2011). It sketchs out the argument made in the book according to which, if sufficiently rejuvenated, formalism can still be a useful tool to ascertain international legal rules and distinguish law from non-law. To do so, formalism must be grounded in the (ever-evolving) social practice of international law-applying authorities to the extent that the latter can produce sufficient communitarian semantics for the sake of law-identification. The possibility of formal law-identification criteria however presupposes a move away from the mainstream theory of sources of international law as well as a broad conception of what constitutes 'a law-applying authority'. If so refreshed, a formal theory of sources can remain helpful in capturing the new forms of exercise of public authority at the international level.
Number of Pages in PDF File: 13
Keywords: international law, sources, formalism, international legal theory, ascertainment, law-identification, deformalization, custom, treaty, legal act, legal fact, soft law, softness, Herbert Hart, Wittgenstein, non-law, pluralization of international law-making, critical legal studies, Article 38
Accepted Paper Series 

Von Staden on Democratic Legitimacy of Judicial Review

Democratic Legitimacy of Judicial Review Beyond the State: Normative Subsidiarity and Judicial Standards of Review

Andreas Von Staden

University of Saint Gallen

November 21, 2011

Jean Monnet Working Paper (NYU), Forthcoming

Judicial review of the acts of national governments by courts beyond the state raises the question of the democratic legitimacy of such review. In this paper, I outline a position that identifies the ideal of self-government as the core of democracy and argue that in order to be democratically legitimate, judicial review by international courts must be guided by the principle of “normative subsidiarity.” Normative subsidiarity recognizes the legitimate exercise of decision-making authority by national governments in specific contexts as an appropriate instantiation of self-government at that level and, as a result, requires international courts to exercise some deference through appropriately defined judicial standards of review. While a number of international courts have already adopted appropriately deferential standards, I argue that all courts and tribunals engaged in judicial review beyond the state need to address the demands of normative subsidiarity if they want to enhance their specifically democratic legitimacy.
Number of Pages in PDF File: 28
JEL Classifications: K33

martedì 6 dicembre 2011

Two Proposals for a New Economic Governance in Europe

Reforming European Economic Governance. A Proposal to the European Leaders (Group of Lecce,

full text available at:

Appeal to European Leaders
For the euro and the european stability and development (Centre for Studies on Federalism,

An Article on the Dutch Supreme Court as a Positive Legislator

The Dutch Supreme Court: A Reluctant Positive Legislator

Jerfi Uzman

affiliation not provided to SSRN

Tom Barkhuysen

Leiden University - Leiden Law School

Michiel L. Van Emmerik

Leiden University - Leiden Law School


In this contribution, we describe the way the Dutch courts have - in a sometimes rigorous, sometimes cautious, and sometimes downright activist way - engaged in rights review of parliamentary legislation. As we will note, the case law of the highest courts shows a tendency to assume a positive lawmaking role in a limited number of cases.
Number of Pages in PDF File: 48
Keywords: supreme court, legislation, administrative

Kiiver on Subsidiarity

The Conduct of Subsidiarity Checks of EU Legislative Proposals by National Parliaments: Analysis, Observations and Practical Recommendations

Philipp Kiiver

Maastricht University

ERA Forum, Vol. 12, April 2011

This paper provides a legal and empirical analysis of certain aspects of the European Union’s early warning system for the principle of subsidiarity. It discusses the admissibility criteria for opinions from national parliaments against EU legislative proposals; it considers which principles national parliaments actually apply in these opinions in practice; and it develops practical legal techniques on how to incorporate principles other than subsidiarity in such opinions.
Number of Pages in PDF File: 13
Keywords: national parliaments, European Union, subsidiarity, early warning wystem 

Samahon on Democracy, Violence and Constitutional Revision

Democracy, Violence, and Constitutional Revision in the Shadow of Democratic Revolution Theory

Tuan Samahon

Villanova University - School of Law

December 5, 2011

Denver University Law Review, Forthcoming

This response essay identified two objections to Richard Albert’s paper Democratic Revolution and his theory of democratic revolution. First, it observes that democracy is but one desirable aspect of governance and its overemphasis is in considerable tension with the protection of minority interests and the consensus-seeking features of constitutionalism. Second, contrary to Albert's claim, violence and its threat often do attend revolution - whether or not violence or its threat is a defining characteristic of revolution. In light of the undesirability of crass majoritarianism and revolutionary violence, this essay considers whether Albert’s theory could be accommodated either by interpretation-as-amendment or by the Article V method for amending the document. The response concludes that neither would suffice to satisfy the demands of Albert’s democratic revolutionary theory.
Number of Pages in PDF File: 10
Keywords: revolution, democracy, constitution 

domenica 4 dicembre 2011

European Journal of Migration and Law, Issue 4 2011

European Journal of Migration and Law

image of Issue 4

sabato 3 dicembre 2011

Jale Tosun and Israel Solorio (eds), Energy and Environment in Europe: Assessing a Complex Relationship

New Special Mini-Issue in European Integration online Papers (EIoP):

Energy and Environment in Europe: Assessing a Complex Relationship
Editors: Jale Tosun and Israel Solorio

Understanding Lifestyle Regulation - Davos, February 23-24, 2012‏

"Dear colleague,
I take the liberty to invite you to a 2-day training devoted to
'Lifestyle Regulation' that I organise together with the Global Risk
Forum and the European Journal of Risk Regulation in Davos, Switzerland,
on February 23-24, 2012.
The objective of this event is to gather researchers, policymakers,
industry representatives, and academics to discuss the moral, political
and legal issues surrounding the ongoing debate about regulatory action
on lifestyle risk factors, such as unhealthy diets, harmful use of
alcohol, use of tobacco and lack of physical exercise.

venerdì 2 dicembre 2011

Oñati Socio-Legal Series, Vol. 1, No. 4, 2011

Vol 1, No 4 (2011)
Socio-Legal Aspects of Adjudication of International Economic Disputes
Table of Contents
Workshop Papers
Comparing WTO Panelists and ICSID Arbitrators: the Creation of International Legal Fields
Jose Augusto Fontoura Costa
Reform at the top: What's next for the WTO? A second life? A socio-political analysis           
Daniel Drache
From the Green Room to the Court Room (And Back): Judicial Clarification of Ambiguity in WTO Law and the Effects on Subsequent Negotiations         
James Flett      
Contributions and Limitations of Empirical Research on Independence and Impartiality in International Investment Arbitration            
Gus Van Harten          
Corporations and the Uses of Law: International Investment Arbitration as a “Multilateral Legal Order"          
Peter Muchlinski         
Legitimacy and Reflexivity in International Investment Arbitration: A New Self-Restraint?       
David Schneiderman   
Socio-Legal Perspectives on the Adjudication of Cultural Diversity Disputes in International Economic Law   
Valentina Sara Vadi    
Transplanting the European Court of Justice: The Experience of the Andean Tribunal of Justice          
Karen J. Alter, Laurence R. Helfer, Osvaldo Saldías   
Interpretation and Institutional Choice at the WTO      
Gregory Shaffer, Joel Trachtman

Nollkaemper on International Legal Pluralism

Inside or Out: Two Types of International Legal Pluralism

Andre Nollkaemper

University of Amsterdam - Amsterdam Center for International Law

Amsterdam Law School Research Paper No. 2011-48
Amsterdam Center for International Law No. 2011-15

In this article I explore the distinction and relationship between two types of international legal pluralism. Internal pluralism construes a pluralism that is internal to the international legal order. External pluralism contests any hierarchical claim of international law and thus is external to the international order.

The central argument of the article is that the two types of pluralism, in a somewhat paradoxical way, depend on each other. While the international legal order needs its hierarchical claim to supremacy in order to provide the stability and legal certainty to serve the essential interests of states, communities, and individuals, the legitimacy of its claim to supremacy relies on the inspiration, diversity and politics that are articulated in the paradigm of external pluralism. In turn, the paradigm of external pluralism seems difficult to reconcile with the interests of stability of the international legal system, and yet it relies at least in part on that system since its primarily political project cannot provide stability at the international level.
Number of Pages in PDF File: 63
Keywords: international law, pluralism, supremacy, european union 
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