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quarta-feira, 27 de setembro de 2017

The Rise and Decline of the International Rule of Law and the Job of Scholars

Heike Krieger/Georg Nolte/Andreas Zimmermann (eds), The International Rule of Law: Rise or Decline? (c) Anne Peters, Forthcoming
Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2017-16
14 Pages Posted: 5 Sep 2017

Anne Peters

Max Planck Institute for Comparative Public Law and International Law
Date Written: August 30, 2017

Abstract
International law feeds on preconditions which it cannot guarantee itself. International scholarship, too, must come to grips with pre-conditions and existing parameters over which it has no control itself. But such scholarship must not ‘succumb’ to these factual and ideational realities by adapting its methods and findings to any given political, social, and economic climate. It is the job of international legal scholars to produce ideas in a spirit of realist utopianism (John Rawls). Depending on the existing parameters, these ideas are apt to shape attitudes and actions, or not. Such scholarship also needs to distance itself from its object of study in order not to lose its capacity to criticise the law and the practice. How far exactly scholarly writing should transcend or keep aloof from the prevailing political climate and from concerns of feasibility depends on the research questions under discussion and is a matter of judgment.

The style of scholarship suggested here is illustrated by the work of three eminent scholars whose careers continued through different political eras more or less favourable to the international rule of law: Hersch Lauterpacht, Antonio Cassese, and Josef Kunz.

Referência:

PETERS, Anne. The Rise and Decline of the International Rule of Law and the Job of Scholars (August 30, 2017). In: KRIEGER, Heike; NOLTE, Georg; ZIMMERMANN, Andreas (Eds.). The International Rule of Law: Rise or Decline? Forthcoming. Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2017-16. Disponível em: <https://ssrn.com/abstract=3029462>. Acesso em: 22 set. 2017.

segunda-feira, 25 de setembro de 2017

The Control Over Knowledge by International Courts and Arbitral Tribunals

Oxford Handbook of International Arbitration, Schultz, Thomas and Ortino, Federico (Eds), Oxford University Press, 2018, Forthcoming
25 Pages - Posted: 14 Sep 2017

Jean d'Aspremont

University of Manchester - School of Law; Sciences Po Law School
Date Written: September 9, 2017

Abstract
This chapter constitutes a heuristic exercise meant to re-imagine international courts and arbitral tribunals as bureaucratic bodies controlling the social reality created by the definitional categories of international law. It primarily claims that, in performing their wide variety of functions, international courts and arbitral tribunals, not only make use of the social reality created by international law, but also exert control over it. This control over the social reality created by the definitional categories of international law is approached as a form of control over knowledge and, it is argued, constitutes a feature of bureaucratic processes. In contending that international courts and arbitral tribunals control knowledge in this way, this chapter projects an image of international dispute resolution processes as bureaucratic sites where power is exercised. By virtue of this specific representation of international courts and arbitral tribunals as bureaucratic bodies controlling knowledge, this chapter challenges some common representations of international courts and arbitral tribunals as resorting to some pre-existing knowledge and accordingly sheds light on the extent to which international courts and arbitral tribunals define social reality and the problems in which they intervene. This chapter ultimately aims at providing new perspectives on the power exercised by international courts and arbitral tribunals, while also inviting international lawyers to reflect on the extent to which the knowledge they rely on to manage the world is controlled by international courts and arbitral tribunals.

Referência
D'ASPREMONT, Jean. The Control Over Knowledge by International Courts and Arbitral Tribunals (September 9, 2017).In: SCHULTZ, Thomas; ORTINO, Federico (Eds.). Oxford Handbook of International Arbitration. Oxford: OUP, 2018, Forthcoming. Disponível em: <https://ssrn.com/abstract=3034682>. Acesso em: 22 set. 2017.

sexta-feira, 22 de setembro de 2017

Lessons for the USA from the Hague Principles

Uniform Law Review 2017, 1-13
NYU School of Law, Public Law Research Paper No. 17-30
14 Pages Posted: 15 Aug 2017 

Linda Silberman

New York University School of Law
Date Written: August 2017

Abstract
In this article, Professor Silberman offers a review of US choice of law approaches that address party autonomy in international commercial contracts. She explains that choice of law rules in the United States are the province of state, not federal law, and to that end gives examples from two states that have codified choice of law and identifies several states that have an absolute autonomy rule for situations when the parties choose forum law. However, the focus is on the provision in the Restatement (Second) of Conflict of Laws dealing with party autonomy in contracts because most states in the United States have adopted that approach. Professor Silberman criticizes the existing Restatement rule for its failure to distinguish between interstate and international contracts and observes that several US. Supreme Court decisions would seem to support broader autonomy for parties to an international contract to choose the applicable law to govern the contract. 

Professor Silberman also explains that there is an ongoing American Law Institute project to revise the Restatement (Second) – the Restatement (Third) – and she suggests that the recent Hague Principles offer several features that might be included in a revision of the Restatement provision on party autonomy in contracts. In particular, she points to elimination of the requirement that there be a geographical connection to the applicable law chosen and distinguishing between commercial and other types of contracts.

Professor Silberman then compares the Hague Principles and the present Restatement provisions in their treatment of other limitations on the parties’ ability to choose the applicable law in an international commercial contract. She criticizes several of the specific options offered in the Hague Principles and concludes that the present Restatement approach in this area is more desirable for courts in the United States.

Referência:
Silberman, Linda. Lessons for the USA from the Hague Principles (August 2017). Uniform Law Review 2017, 1-13; NYU School of Law, Public Law Research Paper No. 17-30. Disponível em: <https://ssrn.com/abstract=3017295>. Acesso em: 20 set. 2017.

quarta-feira, 30 de agosto de 2017

The 'Referendum Threat', the Rationally Ignorant Voter, and the Political Culture of the EU

University College Dublin Law Research Paper No. 04/2009
28 Pages Posted: 13 Mar 2009 Last revised: 18 Mar 2009

Giandomenico Majone

European University Institute - Economics Department (ECO)
Date Written: January 23, 2009

Abstract
The chasm separating elite and popular opinion on the achievements and finality of European integration was never so visible as after the negative referendums on the Constitutional and the Lisbon Treaties. The public attitude prevailing in the past has been characterized as one of permissive consensus, meaning that the integration project was seemingly taken for granted by European publics as an accepted part of the political landscape. Permissive consensus made possible Jean Monnet's method of integration by stealth, and also made plausible the basic assumption of the first social-scientific analyses of that method: namely, that today crucial policy decisions are taken by political and economic elites, so that, as Ernest Haas put it, a majority, in the strict sense, is not required to make policy. The current stage of the integration process is best understood as the end of permissive consensus, but EU leaders do not seem to be sufficiently aware of the far-reaching consequences entailed by this change in the attitude of European publics. One important reason for this inability, or unwillingness, to assess realistically the new situation is the peculiar political culture grown up in more than half a century of intense, if not always productive, integrationist efforts. A striking demonstration of the hold of this political culture on the minds of EU leaders is the view of popular referendums as an unconscionable risk for the integration process - the referendum roulette. One of the favourite arguments against ratification of European treaties by popular referendum is that voters cannot be expected to read and evaluate technically and legally complex texts running into hundreds of pages. It will be shown, however, that this argument is flawed in several respects; carried to its logical conclusion, it would lead to severe restrictions of the franchise even at the national level. 

The paper is organized as follows. The first section discusses the end of the permissive consensus and the growing politicization of the integration project. In the following section I attempt to characterize more precisely the implicit operational rules forming the core of the EU's political culture. Although these rules are an important part of the legacy of Monnet's method, they have never been openly acknowledged either in official documents or in the academic literature. The third section examines the current debate on treaty ratification by referendum in light of the theory of the rationally ignorant voter. The following section explains the growing estrangement of EU citizens from European institutions along the lines of Lipset's analysis of the relation between legitimacy and problem-solving effectiveness. The fifth and last section suggests that the EU may be entering an age of diminished expectations: leaders realize that the current approach to European integration no longer delivers very much, but there is little demand for an alternative approach that might do better. I conclude that some form of differentiated integration may offer the only possibility of avoiding the dilemma of dissolution or irrelevance.

MAJONE, Giandomenico. The 'Referendum Threat', the Rationally Ignorant Voter, and the Political Culture of the EU (January 23, 2009). University College Dublin Law Research Paper No. 04/2009. Disponível em: <https://ssrn.com/abstract=1359047>. Acesso em 23 ago. 2017.

segunda-feira, 28 de agosto de 2017

'One Market, One Law, One Money?' Unintended Consequences of EMU, Enlargement, and Eurocentricity

LSE Legal Studies Working Paper No. 1/2007
29 Pages Posted: 5 Aug 2007  

Giandomenico Majone

European University Institute - Economics Department (ECO)
Date Written: 2007

Abstract
A Union of twenty-seven, or more, members at vastly different levels of socioeconomic development must be considered a mutant of the old EU-15, not to mention the original EEC. The mutation pressures to which the EU is exposed today are to a large extent the unanticipated consequences of the application of the old integration methods under radically new conditions. Thus EMU, instead of making the integration process irreversible, has split the Union into two, possibly three, camps. On the other hand, the heterogeneity of EU-27 impedes the establishment of a Single Market for services. Many of the same people who opposed the original (Bolkestein) General Services Directive also maintain that the EU should be much more than a free-trade area. With the services sector - more than two-thirds of the economy - still largely regulated at the national level, however, it can no longer be excluded that the enlarged EU may regress, if not to the stage of a free-trade area, then to a customs union, with some elements of a common market for goods. It seems likely that the EU will no longer follow a straight-line evolution, rather a kind of evolution with many side branches. It is suggested that the economic theory of clubs provides a better theoretical framework for understanding such developments than the received conceptualizations.

MAJONE, Giandomenico. 'One Market, One Law, One Money?' Unintended Consequences of EMU, Enlargement, and Eurocentricity (2007). LSE Legal Studies Working Paper No. 1/2007. Disponível em: <https://ssrn.com/abstract=999652>. Acesso em: 23 ago. 2017.

sábado, 26 de agosto de 2017

European Integration and Its Modes: Function vs. Territory

TARN Working Paper No. 2/2016
19 Pages Posted: 11 May 2016 

Giandomenico Majone

European University Institute - Economics Department (ECO)
Date Written: April 27, 2016

Abstract
This paper argues in favour of a generalized agencification of Europe, i.e., in favour of a move to a strictly functional approach to European integration. This change of approach is the natural consequence of a change of the main criterion used to assess the consequences of integration: from evaluation in terms of process to evaluation in terms of actual results. The priority previously assigned to process made it possible to claim that the continuous expansion of supranational powers had produced a steady flow of benefits. The new focus on results makes it increasingly difficult to appeal to the indefinite goal of ‘ever closer union’. The crises of monetary union and massive immigration from the Middle East have dramatically revealed the deep divisions still separating the members of the Union. The older member states claim that the solution is to be found in a multi-speed approach to integration. Such an approach cannot solve the basic problem, which is the lack of agreement on the final destination of the integration process. I argue that until the member states reach such an agreement, the focus of collective action should shift from the present emphasis on supranational institutions and policy harmonization to a decentralized system of operational agencies, tackling specific problems and being directly responsible for the results they achieve. Once the benefits of this mode of integration are generally recognized, it becomes meaningful to advocate close cooperation also in the political sphere — as long as one does not repeat the neofunctionalist mistake of assuming that close economic relations sooner or later must lead to political integration. Instead of trying to transfer to the European level all the key economic policies of the nation- state, collective efforts should concentrate on what Europe needs most if it is still to play a significant role internationally: a truly common foreign and security policy.

MAJONE, Giandomenico. European Integration and Its Modes: Function vs. Territory (April 27, 2016). TARN Working Paper No. 2/2016. Disponível em: <https://ssrn.com/abstract=2778612>. Acesso em: 23 ago. 2017.

sexta-feira, 25 de agosto de 2017

The Deeper Euro-Crisis or: The Collapse of the EU Political Culture of Total Optimism

EUI Department of Law Research Paper No. 2015/10
27 Pages Posted: 23 Apr 2015

Giandomenico Majone

European University Institute - Economics Department (ECO)

Date Written: 2015

Abstract
Although several dimensions of the present euro-crisis have been analysed by students of European integration, the impact of the crisis on the political culture of EU leaders has been largely overlooked. The political culture of a nation, a social class or, in case of the EU, an elite consists of a system of beliefs, symbols, and values – the latter including conceptions of purpose – that defines the situation in which political action takes place. One of the roots of the traditional political culture of EU leaders was the Monnet strategy of fait accompli, which consisted in pushing ahead with integration without worrying about either public support or democratic legitimation. This approach was supported by the prevailing emphasis on the process of integration rather than on the concrete results of specific collective decisions. The most serious consequence of the political culture shared by most EU leaders was the tendency to disregard both feasibility constraints and the limits of collective action. Under the impact of the euro-crisis total optimism has been replaced by panic-driven austerity. The paper concludes by calling attention to the fact that there are various alternative approaches to regional (in particular, European) integration. One approach deserving particular attention in the present situation is the functional – rather than territorial – approach advocated by David Mitrany in the 1940s and by Ralph Dahrendorf in the 1970s.

MAJONE, Giandomenico. The Deeper Euro-Crisis or: The Collapse of the EU Political Culture of Total Optimism (2015). EUI Department of Law Research Paper No. 2015/10. Disponível em: <https://ssrn.com/abstract=2597476 or http://dx.doi.org/10.2139/ssrn.2597476>. Acesso em: 23 ago. 2017.

quinta-feira, 24 de agosto de 2017

Policy paper: Providing a cross-border civil judicial cooperation framework - a future partnership paper

From:Department for Exiting the European Union
Published: 22 August 2017

This paper outlines the United Kingdom's position on cross-border civil judicial cooperation in the future partnership.

Providing a cross-border civil judicial cooperation framework: a future partnership paper

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As the United Kingdom leaves the European Union, the Government will seek a deep and special partnership with the EU. Within this partnership, cross-border commerce, trade and family relationships will continue. Building on years of cooperation across borders, it is vital for UK and EU consumers, citizens, families and businesses, that there are coherent common rules to govern interactions between legal systems.

To this end, the UK, as a non-member state outside the direct jurisdiction of the Court of Justice of the European Union (CJEU), will seek to agree new close and comprehensive arrangements for civil judicial cooperation with the EU.


quarta-feira, 5 de julho de 2017

The Constitution’s Creation Is Compatible with Reading It as a Legal Document

APRIL 2, 2017|Committee on Detail,

by JOHN O. MCGINNIS

Mary Bilder, a distinguished legal historian, has written an oped arguing that the historical context and drafting of the Constitution shows that originalism is not a suitable interpretive approach for its text. Larry Solum has already asked her five probing questions about her understanding of originalism.

Here I want to focus on her historical claims and in particular her denial that the Constitution should be interpreted as a legal document. To be sure, not all originalists believe that the Constitution is written in the the language of the law, but Michael Rappaport and I do. Bilder’s exposition of an originalism that follows the Constitution’s legal meaning begins by attacking a straw man. She writes: “Originalism reads our Constitution as if it were a modern technical contract written by experienced lawyers or a contemporary statute written by a team of legislators and staffers, parsing and perfecting every word as they wrote it.”

The Constitution is not a contract or, as Chief Justice John Marshall noted, a code, but that does not mean it cannot be a legal document, interpreted with legal rules appropriate to a constitution, as were state constitutions at the time. And Mike and I have recently shown that text of the Constitution—its legal terms and its presupposition of legal interpretive rules– provides powerful evidence that it was written in the language of the law. But even if Bilder does not consider the text relevant historical evidence— which would be a strange position for a legal historian—her arguments from the context of its drafting are weak.

First, a team of lawyers was in fact responsible for perfecting the language of the Constitution. The Convention appointed a Committee on Detail to mold its resolutions into a coherent document. Four of the five members of this committee were lawyers, James Wilson, Oliver Ellsworth, John Rutledge, and Edmund Randolph. And not just any lawyers, but the most distinguished lawyers of a body that was already made up largely of lawyers. The first three were appointed to the Supreme Court, the latter two as Chief Justice. The fourth became the first Attorney General of the United States. It is hardly unusual in any complex undertaking for those less knowledgeable about the law to provide the general contours of a plan and yet leave the technical drafting of a legal document to those more knowledgeable about law. And it was the work of the Committee on Detail that formed the basis of the Constitution’s language that the Philadelphia Convention approved and the state conventions later ratified.

Bilder also claims that “Creating a workable organization of government was the task of that summer, not writing an intricate document.” But this statement wholly fails to appreciate the complexity of the founding enterprise. The Framers wanted to give more power to the government to make it “workable” but also needed to avoid the tyranny that they believed greater power threatened. That dual objective required checks and balances and the parsing out of powers—exactly the kind of intricacies that law helps make more precise to guide officials in carrying them out.

Bilder also notes that Madison decided against interweaving the Bill of Rights into the Constitution in 1791. But how does this make the Constitution any less a legal document or suggest that its meaning is less fixed than it was in 1789? There were legal rules to help understand the effect of the revisions to prior law, and the Bill of Rights in fact includes a legal interpretive rule in the Ninth Amendment to make sure important aspects of the relation between these Amendments and the Constitution of 1789 are not misunderstood.

Thus, not only may Bilder misunderstand originalist theory, but her historical arguments fail to undermine the legal nature of the Constitution’s language.


John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.



segunda-feira, 5 de junho de 2017

Assessing the Role of Resolutions in the ILC Draft Conclusions on Identification of Customary International Law: Substantive and Methodological Issues

14(2) (2017) International Organizations Law Review (Forthcoming)

23 Pages Posted: 24 May 2017 


University of Leicester

Date Written: May 23, 2017

Abstract

On 30 May 2016, the International Law Commission (ILC) adopted a set of 16 draft Conclusions providing a methodology on how to identify customary international law. Although largely based on the two elements approach set forth in Article 38(1)(b) of the ICJ Statute, the ILC study pushes the boundaries of the formal sources of international law beyond the realm of state practice by recognizing that the practice of international organizations (IOs) as such may be constitutive of custom. This article critically examines the ILC draft Conclusions concerning the role of IOs in the process of custom creation. It examines the concept of resolution adopted by the ILC and assesses the coherence of the interpretive methodology devised by the ILC using the UN General Assembly resolutions as a case study. The findings show that the draft Conclusions fall short of expectation in providing authoritative guidance to scholars and practitioners alike.

DEPLANO, Rossana. Assessing the Role of Resolutions in the ILC Draft Conclusions on Identification of Customary International Law: Substantive and Methodological Issues (May 23, 2017). International Organizations Law Review (Forthcoming), v. 14, n. 2, 2017. Disponível em: <https://ssrn.com/abstract=2972639>. Acesso em: 01 jun. 2017.

sexta-feira, 2 de junho de 2017

Determining the Territorial Scope of State Law in Interstate and International Conflicts: Comments on the Draft Restatement (Third) and on the Role of Party Autonomy



24 Pages - Posted: 17 May 2017 


Indiana University Bloomington Maurer School of Law

Date Written: 2017

Abstract

Analyzing a conflict of laws requires thinking both about the scope of potentially applicable law and about priority, or choice, among potentially applicable laws. The Restatement (Second) of Conflict of Laws, published in 1971, contains little guidance on how, or in what order, courts are to address these two inquiries. The draft Restatement (Third), in contrast, differentiates clearly the respective roles of the two analytical elements. It characterizes the resolution of a choice-of-law question as a two-step process. First, the scope of the relevant states’ internal laws must be determined, in order to ascertain which states’ laws might be used as a rule of decision. Second, if more than one state’s law might be used as a rule of decision, and those laws conflict, it must be decided which law is given priority. The draft defines “internal law” to include restrictions on the geographic scope of the law. However, there are two questions the draft does not answer clearly. First, is the definition of internal law meant to include only express restrictions on scope? Second, absent explicit indications of legislative intent, how is the scope of a law to be determined? In particular, should courts employ a presumption against the extraterritorial application of state law? 

This article begins by analyzing the role of the presumption against extraterritoriality in supplying implied restrictions on the scope of law. It considers the role of the presumption in both international and interstate conflicts of laws, and argues that the Restatement (Third) should differentiate clearly between those two contexts. It then turns to the question whether geographic scope restrictions should properly be considered part of a state’s internal law. The paper analyzes that question through the lens of a common problem: a contract dispute involving a transaction or event that falls outside the scope of the law chosen by the parties to govern their agreement. On the basis of that analysis, it concludes that forthcoming sections will need to address the implications of the draft’s categorical treatment of legislative scope.

BUXBAUM, Hannah L. Determining the Territorial Scope of State Law in Interstate and International Conflicts: Comments on the Draft Restatement (Third) and on the Role of Party Autonomy (2017). Indiana Legal Studies Research Paper No. 372. Disponível em: <https://ssrn.com/abstract=2968613>. Acesso em: 01 jun. 2017.

quarta-feira, 10 de maio de 2017

Kiobel and Extraterritoriality: Here, (Not) There, (Not Even) Everywhere



30 Pages - Posted: 26 Apr 2017 


George Washington University Law School

Date Written: 2017

Abstract
The Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. was relentlessly, and unexpectedly, local in character. Notwithstanding the global outlook suggested by the Alien Tort Statute (ATS), which governs civil actions by “an alien” for torts contrary to “the law of nations or a treaty of the United States,” the Court invoked the presumption against extraterritoriality to limit the statute’s reach.
This Article, based on remarks delivered at the University of Oklahoma Law School, puts a heavy emphasis on territoriality — not, it should be stressed, as a matter of normative preference, but purely as a reflection of the Court’s recent cases. It is accordingly inconsistent with some of the more expansive readings of the ATS, though it stops short of Justice Alito’s prescription. If future cases are to depart substantially from territoriality, the better path is not to explore what Kiobel left unresolved, but to revisit what it purported to settle.

SWAINE, Edward T. Kiobel and Extraterritoriality: Here, (Not) There, (Not Even) Everywhere (2017). Oklahoma Law Review, v. 69, p. 23-51, 2016. Disponível em: <https://ssrn.com/abstract=2958277>. Acesso em: 01 maio 2017.

segunda-feira, 8 de maio de 2017

Complaint against France for a violation of several obligations arising from the Rome III and Brussels IIbis Regulations

by JAN VON HEIN on APRIL 27, 2017

On 19 April 2017, Professor Cyril Nourissat and the lawyers Alexandre Boiché, Delphine Eskenazi, Alice Meier-Bourdeau and Gregory Thuan filed a complaint with the European Commission against France for a violation of several obligations arising from the European Rome III and Brussels IIbis Regulations, as a result of the divorce legislation reform entered into force on 1 January this year. The following summary has been kindly provided by Dr. Boiché.

“Indeed, since January the 1st, in the event of a global settlement between the spouses, the divorce agreement is no longer reviewed and approved in Court by a French judge. The agreement is merely recorded in a private contract, signed by the spouses and their respective lawyers. Such agreement is subsequently registered by a French notaire, which allows the divorce agreement to be an enforceable document under French law. From a judicial divorce, the French divorce, in the event of an agreement between the spouses, has become a purely administrative divorce. The judge only intervenes if a minor child requests to be heard.

The implications and consequences of this reform in an international environment were deliberately ignored by the French legislator, with a blatant disregard for the high proportion of divorce with an international component in France. The main violations arising from this reform are the following.

First of all, as there will be no control of the jurisdiction, anyone will be able to get a divorce by mutual consent in France, even though they have absolutely no connection with France whatsoever. For instance, a couple of German spouses living in Spain will now be able to use this new method of divorce, in breach of the provisions of the Brussels IIbis Regulation. The new divorce legislation is also problematic in so far as it remains silent on the law applicable to the divorce.

Moreover, the Brussels IIbis Regulation states that the judge, when he grants the divorce (and therefore rules on the visitation rights upon the children, or issues a support order, for instance) provides the spouses with certificates, that grant direct enforceability to his decision in the other member states. Yet, the new divorce legislation only authorizes the notary to deliver the certificate granting enforceability to the dissolution of the marriage itself, but not the certificate related to the visitation rights, nor the support order. This omission is problematic insofar as it will force the spouses who seek to enforce their agreement in another member state to seize the local Courts.

Last but not least, article 24 of the Charter of Fundamental Rights of the European Union makes it imperative for the child’s best interests to be taken into consideration above all else, and article 41 of the Brussels IIbis Regulation provides that the child must be heard every time a decision is taken regarding his residency and/or visitation rights, unless a neutral third party deems it unnecessary. Yet, under the new legislation, it is only the parents of the child who are supposed to inform him that he can be heard, which hardly meets the European requirements. Moreover, article 12 of the Brussels IIbis Regulation provides that, when a Court is seized whereas it isn’t the Court of the child’s habitual residence, it can only accept its jurisdiction if it matches the child’s best interests. Once again, the absence of any judicial control will allow divorces to be granted in France about children who never lived there, without any consideration for their interests. This might be the main violation of the European legislation issued by this reform.

For all those reasons, the plaintiffs recommend that the Union invites France to undertake the necessary changes, in order for this new legislation to fit harmoniously in the European legal space. In particular, they suggest a mandatory reviewal by the judge in the presence of an international component, such as the foreign citizenship of one of the spouses, or a foreign habitual residence. They would also like this new divorce to be prohibited in the presence of a minor child, an opinion shared by the French ‘Défenseur des Droits’“

The full text of the complaint (in French) is available here.


sexta-feira, 5 de maio de 2017

Relative Normativity

18 Pages Posted: 25 Apr 2017 


Max Planck Institute for Comparative Public Law and International Law; Goethe University Frankfurt - Research Center SAFE; Goethe University Frankfurt - Cluster of Excellence Normative Orders; Goethe University Frankfurt

Date Written: March 08, 2017

Abstract

This paper critically reassesses the notion of relative normativity in international law and the related debate triggered by the emergence of ius cogens and international soft law. Contrary to standard positivist assumptions which treat relative normativity as a pathology, the paper argues that relative normativity has been a consistent feature of international law since its emergence in early modernity. Tracking this development, the paper shows that the rejection of relative normativity is due to the particular political constellation of the formative period of international law around the turn of the 19th to the 20th century with its focus on unfettered state sovereignty. The postwar era, and even more so the era of globalization, saw a relativization of state sovereignty that allowed the re-emergence of relative normativity. It has prompted a theoretical debate, in which attitudes towards relative normativity correlate with general attitudes about globalization and its impact on international law. The paper concludes by arguing that relative normativity is likely to survive even the recent transformations of global governance caused by the more authoritarian forms of government. Efforts to subject relative normativity to the principles of democracy, the rule of law, and human rights are therefore more necessary than ever.

GOLDMANN, Matthias. Relative Normativity. In: D'ASPREMONT, Jean; SINGH, Sahib (Eds.). Fundamental Concepts of International Law, 2017 Forthcoming. Disponível em: <https://ssrn.com/abstract=2957069>. Acesso em: 26 abr. 2017.

quarta-feira, 3 de maio de 2017

What Does It Mean to Compare, and What Should It Mean?



21 Pages Posted: 10 Mar 2017 Last revised: 17 Mar 2017


Queen's University Belfast - School of Law; University of Michigan Law School

Date Written: March 9, 2017

Abstract
This paper considers what comparison (in general) means, in the sense of what the nature and purpose of comparison is. I aim to produce a rough taxonomy of the common aims of comparison, and why it appears to be so controversial. I am particularly interested in considering when comparisons are regarded as inappropriate, and I contrast conventions regarding inappropriate comparison in legal scholarship with several other disciplines where conventions about what it is inappropriate to compare have developed.

McCRUDDEN, Christopher. What Does It Mean to Compare, and What Should It Mean? In: BESSON, Samantha; URSCHELER, Lukas Heckendorn; JUBÉ, Samuel (Eds.). Comparing Comparative Law. Geneva/Zurich: Schulthess Editions Romandes/Swiss Institute of Comparative Law, 2017. Disponível em: <https://ssrn.com/abstract=2930009>. Acesso em: 26 abr. 2017.


segunda-feira, 1 de maio de 2017

A Global Treaty Override? The New OECD Multilateral Tax Instrument and Its Limits


53 Pages - Posted: 20 Mar 2017 - Last revised: 13 Apr 2017

University of Michigan Law School

Univereity of Michigan Law School; University of International Business and Economics (UIBE) Law School

Date Written: March 17, 2017

Abstract

The new OECD Multilateral Instrument to amend tax treaties (MLI) is an important innovation in international law. Hitherto, international economic law was built primarily on bilateral treaties (e.g., tax treaties and BITs) or multilateral treaties (the WTO agreements). The problem is that in some areas, like tax and investment, multilateral treaties proved hard to negotiate, but only a multilateral treaty can be amended simultaneously by all its signatories.

The MLI provides an ingenious solution: A multilateral instrument that automatically amends all the bilateral treaties of its signatories. If the MLI succeeds, it can be a useful model in other areas, such as investment, where a multilateral agreement was not successful, but there is a growing consensus about the need to adjust the terms of BITs to address investor responsibilities and the definition of investment comprehensively.

Whether the MLI will succeed remains to be seen. A recent estimate has suggested that the US will not agree to anything except the arbitration provision, and other OECD members may agree to only a limited set of provisions. On the other hand, the MLI may prove more appealing to developing countries because it enhances source-based taxation and limits treaty shopping.

Even a limited MLI would be a step forward. The current tax reform proposals in the US pose a significant threat to the international tax regime Countries that wish to limit the damage would be wise to accede to the MLI this year and prevent a massive race to the bottom that could ensue if the US becomes (from the perspective of the rest of the world) a giant tax haven.

AVI-YONAH, Reuven S.; XU, Haiyan. A Global Treaty Override? The New OECD Multilateral Tax Instrument and Its Limits (March 17, 2017). U of Michigan Public Law Research Paper No. 542.  Disponível em: <https://ssrn.com/abstract=2934858>. Acesso em: 26 abr. 2017.

sexta-feira, 28 de abril de 2017

Trusts As Vehicles for Investment

European Review of Private Law (ERPL), Vol. 24, No. 6, pp. 1091-1118, 2016


30 Pages - Posted: 14 Apr 2017 


Max Planck Institute for Comparative and International Private Law

Abstract
Financial markets have become the main drivers for legal change. Investors are interested in in funds which promise high returns while assuring protection from moral hazard and immunity against third party claims, irrespective of whether the fund is organized as a trust, a corporate entity or contractual investment scheme. Global finance has forced legislators into regulatory competition for the most investor-friendly regulatory pattern, including trusts or trust-like structures. Most civil law jurisdictions are newcomers to the law of trusts and fiducie. This provokes the policy question to what extent the market for investments into trusts should be regulated without frustrating investors and organizers of funds. The US regulatory approach towards investment trusts will be explored before the analysis moves to the European Union (EU)'s law on Undertakings for Collective Investment Schemes in Transferable Securities (UCITS). The transposition of the EU's UCITS law by Ireland and the United Kingdom is assessed in order to explore the interface between trust law, the freedom of contract and mandatory capital market law. A regulatory choice emerges that supplements trust law by mandatory standard terms for the trust deed in the interest of market transparency and investor protection.

KULMS, Rainer, Trusts As Vehicles for Investment. European Review of Private Law (ERPL), v. 24, n. 6, p. 1091-1118, 2016. Disponível em: <https://ssrn.com/abstract=2952309>. Acesso em: 26 abr. 2017.

quarta-feira, 19 de abril de 2017

International Law in the Post-Human Rights Era

96 Texas L. Rev. (2017 Forthcoming)

69 Pages Posted: 7 Apr 2017 


Vanderbilt University - Law School

Date Written: April 6, 2017

Abstract

International law is in a period of transition. After World War II, but especially since the 1980s, human rights expanded to almost every corner of international law. In doing so, they changed core features of international law itself, including the definition of sovereignty and the sources of international legal rules. But what might be termed the “golden-age” of international human rights law is over, at least for now. Whether measured in terms of the increasing number of authoritarian governments, the decline in international human rights enforcement architecture such as the Responsibility to Protect and the Alien Tort Statute, the growing power of China and Russia over the content of international law, or rising nationalism and populism, international human rights law is in retreat. 

The decline offers an opportunity to consider how human rights changed, or purported to change, international law and how international law as a whole can be made more effective in a post-human rights era. This article is the first to argue that international human rights law – whatever its much disputed benefits for human rights themselves – appears to have expanded and changed international law itself in ways that have made it weaker, less likely to generate compliance, and more likely to produce interstate friction and conflict. The debate around international law and human rights needs to be reframed to consider these costs and to evaluate whether international law, including the work of the United Nations, should focus on a stronger, more limited core of international legal norms that protects international peace and security, not human rights.

WUERTH, Ingrid B. International Law in the Post-Human Rights Era (April 6, 2017). 96 Texas L. Rev. (2017 Forthcoming). Disponível em: <https://ssrn.com/abstract=2947771>. Acesso em: 10 abr. 2017.

segunda-feira, 17 de abril de 2017

Legal Theory as a Source: Institutional Facts and the Identification of International Law

From Samantha Besson and Jean d'Aspremont (eds), 'The Oxford handbook on the sources of international law' (Oxford UP, 2018, Forthcoming)

25 Pages Posted: 6 Apr 2017 


School of Law, University of Manchester; University of London - School of Law

Date Written: April 5, 2017

Abstract

Legal theory provides conceptions of the sources of international law that differ according to time and place. Section 1 employs MacCormick’s explanation of institutional order to frame the ensuing discussion by arguing that conceptual understandings of law, including international law, are socially constructed. Section 2 starts from Austin’s denial that international law possesses the quality of law because international society lacks an ultimate sovereign that is superior to States. It considers the function that sovereignty has played in some explanations of international law and its sources, which raises the significance of State consent. This is explored further in section 3 which focuses on the paradigm shift that Grotius introduced into natural law, and consequently into international law, by substituting consent for theology as its underpinning explanation. Sections 4 and 5 consider 20th century transatlantic variants of natural law. Section 4 examines three influential British theorists — Brierly, Fitzmaurice, and Lauterpacht — each of whom relied on natural law to overcome perceived inadequacies of consent-based positivist theories. Section 5 examines the more instrumentalist naturalism of the New Haven School which endeavoured to ensure the promulgation of American democratic values by emphasizing policy and choice in decision-making. Section 6 draws some, inevitably imperfect, conclusions.

SCOBBIE, Iain. Legal Theory as a Source: Institutional Facts and the Identification of International Law (April 5, 2017). BESSON, Samantha; D'ASPREMONT, Jean (eds). The Oxford handbook on the sources of international law. Oxford: OUP, 2018 (Forthcoming). Disponível em: <https://ssrn.com/abstract=2947078>. Acesso em: 10 abr. 2017.

sexta-feira, 14 de abril de 2017

Of direct effect, primacy and constitutional identities: Rome and Luxembourg enmeshed in the Taricco case

by QIL-QDI on Mar 31, 2017 • 19:31

Link to PDF

Introduced by Antonello Tancredi

In the preliminary ruling rendered by the Grand Chamber in the Taricco case (case C-105/14) on 8 September 2015, the European Court of Justice stated inter alia that if a national rule concerning limitation periods for criminal offences prevents the imposition of effective and dissuasive penalties in a significant number of cases of serious fraud affecting the financial interests of the EU, national courts must give full effect to Article 325(1) TFEU, if need be by disapplying those domestic provisions which have an adverse effect on the fulfilment of the Member States’ obligations under that same Article.

In order no 24 of 26 January 2017,[1] the Italian Constitutional Court (hereinafter, the ‘ICC’) sought a preliminary reference from the ECJ concerning the meaning to be attributed to Article 325 TFEU on the basis of the Taricco judgment. More specifically, the ICC questioned whether Article 325 TFEU must ‘be interpreted as requiring the criminal courts to disregard national legislation concerning limitation periods’ even when: 1) ‘…there is not a sufficiently precise legal basis for setting aside such legislation’; 2) ‘…[that] limitation is part of the substantive criminal law in the Member State’s legal system and is subject to the principle of legality’; and 3) ‘… the setting aside [of] such legislation would contrast with the supreme principles of the constitutional order of the Member State or with the inalienable human rights recognized under the Constitution of the Member State’.

In the Italian legal system EU law enjoys primacy over national norms but with a (counter-)limit (in practice never applied to EU law), ie, compliance with the supreme principles of the Italian constitutional order and inalienable human rights. In order no 24/2017, the ICC affirms that the principle of legality in criminal matters ‘is an expression of a supreme principle of the legal order’ laid down in Article 25 (2) of the Constitution,[2] which requires that criminal rules must be precise and must not have retroactive effect. Since, in the ICC’s view – unlike the interpretation of Article 49 of the Charter of Fundamental Rights of the European Union and Article 7 of the ECHR given by the ECJ – the principle of legality also covers limitation periods (and not only criminal offences and penalties), and no offender could reasonably have expected, before the Taricco judgment, that Article 325 TFEU would require a longer statute of limitations, the ICC envisages the possibility of a clash between the obligations flowing from Article 325 TFEU and a supreme constitutional principle which prohibits the retroactive application of criminal law in malam partem, being that this principle is part of the ‘national identity’ protected by Article 4(2) TEU. Were this possibility inescapable, the ICC ‘would be under a duty to prevent’ the application of EU law.

Furthermore, the criteria (ie, systematic impunity and the seriousness of the alleged tax fraud) to be employed by Italian courts in order to decide on the disapplication of domestic rules on limitation periods are vague, ambiguous ‘… and in any case cannot be substantiated through interpretation’. In this regard, it is not possible ‘for EU law to set an objective as to the result for the criminal courts and for the courts to be required to fulfil it using any means available within the legal order, without any legislation laying down detailed definitions of factual circumstances and prerequisites’. In other words, employing EU law (Article 325 TFEU in this case) as a ‘shield’ (which renders inapplicable relevant domestic law) when it is not possible to use it as a ‘sword’ (ie, to apply EU law in place of diverging domestic law, for want of detail or precision) raises specific problems in criminal matters,[3] where the ‘law’ must meet qualitative requirements such as certainty and, thus, the foreseeability of the consequences produced by a given conduct.

As is evident, the case at hand – which comes after the Gauweiler-OMT saga and the judgment given by the Danish Supreme Court in December 2016 where it was held that non-written principles of EU law are not binding in the Danish legal order – raises profound legal questions. The ICC has decided not to immediately apply the doctrine of ‘counter-limits’, preferring to seek interpretative guidance from the Luxembourg’s judges. Order 24/2017 speaks the language of cooperative constitutionalism in Europe[4], it mostly employs conciliatory, if not deferential tones, but the substance of the confrontation remains rather unforgiving. Is the ICC seeking a clarification, or rather a revirement of the ECJ Taricco judgment? What is the strategy employed to reach this objective? Would it have been possible (or proper) for the ICC to identify within the constitutional principle of legality a more limited ‘supreme’ core, which excludes the rules governing limitation periods? Is the act of distinguishing vis-à-vis the ECJ’s judgment in the Melloni case persuasive? And what about the preservation of national constitutional identities? Are they part of the balance between unity and diversity on which the EU is based? Does Article 4(2) TEU enable domestic authorities to review EU law provisions and ECJ judgments in the light of domestic constitutional identities (as it is claimed today by the ICC and is implicit in the Identitätskontrolle elaborated by the German Constitutional Court) and what are the consequences of making the applicability of EU law conditional upon Member States supreme constitutional principles? And finally, what are the potential scenarios for the judgment that will be rendered by the ECJ according to an expedited procedure?

QIL is, and will remain greatly interested in exploring issues and patterns of interrelation between legal sub-systems. In this zoom-in, we asked two European public law scholars who have investigated and considered these questions in their research, to comment on the ICC’s order no 24/2017 and the implications of this exercise in ‘open’ judicial dialogue.


quarta-feira, 12 de abril de 2017

Immunity from Civil Jurisdiction: Where Do We Go from Here? Assessing the Relevance of Recent Opposing Trends in the Conceptualisation of State Immunity



University of Genoa, Dep. Political Science

Date Written: January 31, 2017
33 Pages
Posted: 6 Feb 2017 


Abstract
Traditional rules concerning the immunity of States from jurisdiction are currently challenged by Italian domestic courts, seeking the possibility to provide exceptions to foreign immunity based upon the gravity of the foreign State’s conduct and the consequences on human rights following recognition of State immunity. Such a trend is opposed to others that – for example – recognize a blanket of immunity to international organisations even where these do not establish internal procedures to adjudicate their conducts. The aim of the present work is to reconstruct the opposing emerging trends so to reflect on their value in the promotion of new rules, and to determine their consequences in terms of “crisis of the law of State immunity”.

DOMINELLI, Stefano. Immunity from Civil Jurisdiction: Where Do We Go from Here? Assessing the Relevance of Recent Opposing Trends in the Conceptualisation of State Immunity (January 31, 2017). European Society of International Law (ESIL) 2016 Annual Conference (Riga). Disponível em: <https://ssrn.com/abstract=2911994>. Acesso em: 04 abr. 2017.

segunda-feira, 10 de abril de 2017

The Future We Want: Sustainable Development as an Inherent Aim of Foreign Investment Protection



State Chancellery of the Republic of Latvia

Date Written: January 31, 2017
17 Pages
Posted: 6 Feb 2017 

Abstract
It is now acknowledged that sustainable development is a new paradigm of international investment protection law, to be taken into account when planning domestic investment policies and drafting future investment agreements. 
Yet, the paper intends to provide a re-contextualization of the currently existing investment regime in a way that already allows focusing on the protection of wider interests than the ones of pure economic value in the application of investment law. 
In order to do that, the paper consists of two parts. First, it analyses the term economic development as the object and purpose of the currently existing international investment regime, suggesting that economic development is a generic term whose current meaning requires to put it in the context of sustainable development. Sustainable development essentially means the achievement of an equitable balance between economic development, social development and environmental protection. Consequently, sustainable development - as the object and purpose of investment protection law - requires finding a balance between the State’s regulatory responsibilities and a foreign investor’s interests. 
Second, the paper suggests that in order to find that balance, sustainable development - as the inherent objective of investment protection - may alter perceptions of applicable law and guide the contextual and effective interpretation of investment protection standards by requiring a focus on wider interests than merely those of foreign investors. As a result, it may influence the methodologies used for the establishment of violations of investment guarantees.

DUBAVA, Ilze. The Future We Want: Sustainable Development as an Inherent Aim of Foreign Investment Protection (January 31, 2017). European Society of International Law (ESIL) 2016 Annual Conference (Riga). Disponível em: <https://ssrn.com/abstract=2911995>. Acesso em: 04 abr. 2017.

sexta-feira, 7 de abril de 2017

Corruption et Immunités : Questionnements sur la Lutte Contre L’Impunité (Corruption and Immunities: Questions on the Fight Against Impunity)



Université Panthéon-Assas (Paris II)

Date Written: January 31, 2017
23 Pages
Posted: 6 Feb 2017 


Résumé français: L’étude de l’interaction entre le droit des immunités et la corruption démontre que le droit international est paradoxal dans la mesure où, selon l’Etat, la pratique prouve que le droit des immunités peut s’appliquer alors même qu’il y a un cas de corruption avérée ou fortement présumée. Cette application ambivalente s’ajoute aux problèmes procéduraux, nationaux et internationaux, susceptibles de se poser aux fins de jugement ou du recouvrement d’une créance. Il apparaît que la thèse de Roberto Ago relative au Crime d’Etat, qui commence à être prise en compte dans une certaine mesure par des tribunaux internes, pourrait être une solution efficace et cohérente aux fins de la lutte contre l’impunité. La mise en œuvre de cette thèse pourrait ainsi enrichir le droit international relatif à la répression de tout type de crimes (supranationaux et transnationaux).

English Abstract: The study of interaction between immunities and corruption demonstrates that international law involves paradoxes. Indeed, according to the State, the practice proves that the law of immunity could be implemented even if the case is corrupted. This ambivalent application is cumulated with procedural issues from international and national law for the creditor or the forum of judgment. The thesis from Roberto Ago about State Crime, which is taken in account by a few national tribunals, could be an effective and coherent solution for the fight against impunity and be allowed to improve international law rules concerning the repression to all types of crimes (supranational and transnational crimes).

Notes: Downloadable document is in French.

FORTAS, Anne-Catherine. Corruption et Immunités : Questionnements sur la Lutte Contre L’Impunité (Corruption and Immunities: Questions on the Fight Against Impunity) (January 31, 2017). European Society of International Law (ESIL) 2016 Annual Conference (Riga). Disponível em: <https://ssrn.com/abstract=2911997>. Acesso em 04 abr. 2017.

quarta-feira, 5 de abril de 2017

The Empire Strikes Back: The Struggle to Reshape ISDS


Yale University - Law School

Date Written: February 16, 2017
23 Pages
Posted: 30 Mar 2017 

Abstract
The Great Compact, which is the basis of ISDS, is at the heart of the contemporary international investment system. The major challenge to it now comes from Developed Countries, who seem to have lost sight of its inclusive benefits.

Suggested Citation:

Reisman, W. Michael, The Empire Strikes Back: The Struggle to Reshape ISDS (February 16, 2017). Disponível em: <https://ssrn.com/abstract=2943514>. Acesso em: 04 abr. 2017.

quarta-feira, 22 de março de 2017

BREXIT and Business Law

China-EU Law Journal (CELJ), Online First, 2017

DOI: 10.1007/s12689-017-0075-1


20 Pages Posted: 23 Dec 2016 Last revised: 20 Mar 2017


Max Planck Institute for Comparative and International Private Law

Abstract
The surprising outcome of the referendum on the future membership of the United Kingdom (UK) in the European Union (EU) has given rise to a large number of political speculations and claims. They will have to be realized within the framework of EU law and British constitutional law. This paper is meant to outline that framework and, in particular, the procedure that might lead to BREXIT, infra 1, as well as the options available for the negotiations about the future relations between the EU and the UK, infra 2. Its main thrust will be the legal consequences of BREXIT for the operation of primary and secondary EU law, infra 3 to 5. A final section will deal with the fate of international treaties concluded by the EU for Britain after BREXIT, infra 5. Particular attention will be given to possible implications for China.

BASEDOW, Jürgen. BREXIT and Business Law. China-EU Law Journal (CELJ), 2017. DOI: 10.1007/s12689-017-0075-1. Max Planck Private Law Research Paper No. 17/1. Disponível em: <https://ssrn.com/abstract=2889218>. Acesso em: 21 mar. 2017.


terça-feira, 21 de março de 2017

The Combination of Formalism and Realism


39 Pages Posted: 9 Mar 2017 


Washington University in Saint Louis - School of Law

Date Written: March 2, 2017

Abstract
For several generations now, legal scholars in the United States have framed debates about law and judging in terms of formalism-versus-realism. This entrenched framework is grounded in a widely accepted historical account. In this essay, I dismantle this antithesis and reconstruct their relationship. When properly understood, they go together. The first half of the essay shows that the conventional historical narrative is incorrect. Realism about law and judging has long been present in the American legal tradition. This discussion covers the views of Langdell, James Fitzjames Stephen, and other nineteenth and twentieth century jurists. The second half of the essay explains why systematic rule formalism is necessary, why realism is inevitable, and how they go together. The legal system would not work absent formalism, realism is parasitic on formalism, and realism reflects the ameliorating presence of human judgments within formalistic systems. The formalism-versus-realism framework does not allow this relationship to be expressed as a coherent bundle of views about law and judging, and should be discarded.

TAMANAHA, Brian Z. The Combination of Formalism and Realism (March 2, 2017). Washington University in St. Louis Legal Studies Research Paper No. 17-03-01. Disponível em: <https://ssrn.com/abstract=2929038>. Acesso em 20 mar. 2017.

segunda-feira, 13 de março de 2017

All Roads Lead to Strasbourg?: Application of the Margin of Appreciation Doctrine by the European Court of Human Rights and the UN Human Rights Committee

Forthcoming Journal of International Dispute Settlement


31 Pages Posted: 1 Mar 2017 


Hebrew University of Jerusalem - Faculty of Law and Institute of Criminology; Israel Democracy Institute

Date Written: January 1, 2017

Abstract

The present article seeks to explore the possibility that a gap exists between the perceived rejection of the margin of appreciation (MoA) doctrine by the UN Human Rights Committee (HRC), and its actual practice of employing substitute, MoA-like approaches. The existence of such a gap might be explained by the proposition that some aspects of the MoA doctrine are an indispensable element of international adjudication involving state conduct. It may also suggest that there are policy considerations which lead some international human rights bodies not to embrace explicitly the MoA doctrine or to downplay in their jurisprudence the prominence of similar deference-granting doctrines. 

Part One of the article surveys the application of the MoA doctrine in the case law of the European Court of Human Rights (ECtHR), identifying three analytically separate prongs – application of law to facts, balancing of norms in the course of law-application and balancing of norms in the course of law interpretation. Part Two then moves to discuss analogous legal moves taken by the HRC, while noting the remaining differences between the approaches of the two bodies. Part Three concludes.

SHANY, Yuval. All Roads Lead to Strasbourg?: Application of the Margin of Appreciation Doctrine by the European Court of Human Rights and the UN Human Rights Committee (January 1, 2017). Hebrew University of Jerusalem Legal Research Paper. Disponível em: <https://ssrn.com/abstract=2925652>. Acesso em: 10 mar. 2017.

quarta-feira, 8 de março de 2017

Improving the International Investment Law and Policy Regime: Options for the Future (and Book Reviews)

"Improving the International Investment Law and Policy Regime: Options for the Future", Helsinki: Ministry for Foreign Affairs of Finland, ISBN 978-952-281-217-9


192 Pages Posted: 12 Jan 2017 Last revised: 3 Mar 2017

Columbia University - Columbia Center on Sustainable Investment
King's College London – The Dickson Poon School of Law

Date Written: 2013

Abstract

The international investment regime faces broader challenges, as reflected especially in the discussions regarding the investor-state dispute-settlement mechanism and the quest to make the international investment regime more oriented toward sustainable development objectives and to strengthen disciplines for the behavior of multinational enterprises. A number of options of how the regime can be improved are laid out in this booklet, including engaging in fact finding processes; establishing consensus-building working groups; formulating a model international investment agreement; building specific mechanisms to improve the investment regime. and commencing intergovernmental processes. An international investment consensus-building process is advocated to facilitate the improvement of the international investment regime.

Disponível em: <https://ssrn.com/abstract=2896922>. Acesso em: 06 mar. 2017.



segunda-feira, 20 de fevereiro de 2017

Sovereignty and Migration in the Doctrine of the Law of Nations: An Intellectual History of Hospitality from Vitoria to Vattel

Graduate Institute of International and Development Studies (HEI)

February 6, 2017

European Journal of International Law, 2016, Vol. 27 No. 4, 901–922 

Abstract:

This intellectual history of hospitality from Vitoria to Vattel provides an alternative story to the prevailing narrative of migration control. Although migration control is frequently heralded as falling within the domestic jurisdiction of states, the movement of persons across borders is a permanent feature of history that has been framed by international law for ages. The early doctrine of the law of nations reminds us that migration was at the heart of the first reflections about international law through the enduring dialectic between sovereignty and hospitality. This long-standing debate was framed by early scholars following three main trends, which constitute the focus of this article. The free movement of persons was first acknowledged by Vitoria and Grotius as a rule of international law through the right of communication between peoples. By contrast, Pufendorf and Wolff insisted on the state’s discretion to refuse admission of aliens as a consequence of its territorial sovereignty. Yet, in-between these two different poles – sovereignty versus hospitality – Vattel counterbalanced the sovereign power of the state by a right of entry based on necessity. As exemplified by the founding fathers of international law, the dialectic between sovereignty and hospitality offers innovative ways for rethinking migration.

Number of Pages in PDF File: 22

Disponível em: <https://ssrn.com/abstract=2912130>. Acesso em 17 fev. 2017.

quinta-feira, 16 de fevereiro de 2017

Responsibility

Forthcoming, ‘Fundamental Concepts for International Law’ (J d’Aspremont and S Singh, eds), Edward Elgar, 2017


Amsterdam Center for International Law No. 2017-03

16 Pages Posted: 9 Feb 2017 


University of Amsterdam - Amsterdam Center for International Law

Date Written: February 9, 2017

Abstract

The idea that international law requires that a breach is undone and reparation is provided is central to law as such – no less so to international law. Take away the notion of responsibility, and much of how we think about international law and why it matters starts to transform. This paper explores the structuring role of responsibility in international legal discourse, and discusses how transformations in the international legal system that move the dominant interstate system to the background inevitably affect the structuring role of international responsibility.

Reference
Nollkaemper, Andre, Responsibility (February 9, 2017). Forthcoming, ‘Fundamental Concepts for International Law’ (J d’Aspremont and S Singh, eds), Edward Elgar, 2017; Amsterdam Law School Research Paper No. 2017-04; Amsterdam Center for International Law No. 2017-03. Available at SSRN: https://ssrn.com/abstract=2914250

Disponível em: <https://ssrn.com/abstract=2914250>. Acesso em: 15 fev. 2017.

quarta-feira, 8 de fevereiro de 2017

Beyond Learning Objectives: A Taxonomy to Maximize Outcomes

Charlotte School of Law; Appalachian School of Law

January 14, 2017

Abstract:

If Paul Revere were part of the contemporary legal academy, he might ride out of Boston warning the legal academy, “Outcome Measurements are Coming!” The shift from past accreditation standards to current and future accreditation standards requires such warning and preparation. It is a fundamental shift that could cajole law schools to fundamentally revise their curricula, courses, teaching methods, and assessments. This article will provide a framework of learning objectives that will help law schools revise curricula and courses to meet the coming outcome measurement accreditation standards in the new legal education marketplace.

In the past, the ABA has accredited law schools based on inputs. Specifically, law schools needed to attract a certain caliber of student as measured by GPA and LSAT score. Currently, the ABA has moved toward accreditation standards based on outcome measurements rather than inputs. Law schools will no longer be able to provide curricula as the primary means for judging the quality of the educational program. Rather, schools are going to have to produce data that students met the learning objectives of the curricula. This shift is subtle, yet fundamental. It is no longer acceptable to simply teach the learning objectives. Students must also learn. And law schools must be able to prove that students learned. With the recent decline in law school applications, faculty are faced with a student body that is less and less prepared to begin a traditional legal curriculum. 

Thus, law schools must provide more training and prove more results with students who struggle more. And, this task must be done in an economically viable manner. This “new normal” might seem to present the academy with an insurmountable challenge. However, with curricula that are optimally structured to follow the natural progression of human learning, this otherwise overwhelming challenge becomes possible. 

This article provides a Taxonomy of Cognitive Legal Learning Objectives and Outcome Measurements. The taxonomy can help both the ABA and schools develop standardized language used to communicate learning and assessment objectives. The taxonomy provides a guide as to how to write curricular and course learning objectives. 

The taxonomy also guides law schools to structure curricula and courses to meet these learning objectives to create positive outcome measurements. Specifically, by creating curricula that mimics the natural progression of adult human learning, law students will be able to learn more efficiently and law professors of all experience levels can avoid misalignment between instruction, learning, and assessment. Additionally, by setting learning objectives that internalize the shift to measuring what students should be able to do (the measurable outcomes), the learning objectives could more closely align with measuring and proving student learning. 

In this article, I discuss what learning objectives, assessment objectives, and outcome measurements are and how to write them. Then I review existing taxonomies of learning objectives and discuss why the legal academy could benefit from a discipline-specific taxonomy of cognitive legal learning objectives. I then provide an introduction to Taxonomy of Cognitive Legal Learning Objectives and Outcome Measurements with descriptions of each of the general levels of legal learning objectives. Detailed descriptions of each dimension of the taxonomy will follow in subsequent papers, as will teaching and assessment tips that address specific and discreet learning objectives.

Number of Pages in PDF File: 49

Disponível em: <https://ssrn.com/abstract=2898648>. Acesso em 2 fev. 2017.


segunda-feira, 6 de fevereiro de 2017

Liberal Internationalism and the Populist Backlash

Eric A. Posner University of Chicago - Law School

January 11, 2017


Abstract:
A populist backlash around the world has targeted international law and legal institutions. Populists see international law as a device used by global elites to dominate policymaking and benefit themselves at the expense of the common people. This turn of events exposes the hollowness at the core of mainstream international law scholarship, for which the expansion of international law and the erosion of sovereignty have always been a forgone conclusion. But international law is dependent on public trust in technocratic rule-by-elites, which has been called into question by a series of international crises.

Number of Pages in PDF File: 18

Disponível em: <https://ssrn.com/abstract=2898357>. Acesso em 2 fev. 2017.