Páginas

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.