Páginas

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.