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.

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.

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.

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.

'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.

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.

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.

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

From:Department for Exiting the European Union

Part of:Article 50 and negotiations with the EU and Brexit

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.

Copiado de: <https://www.gov.uk/government/publications/providing-a-cross-border-civil-judicial-cooperation-framework-a-future-partnership-paper>. Acesso em: 23 ago. 2017.