Law Commons^™

Intra-Eu Investment Disputes And The Monopoly Over The Interpretation Of Eu Law, Petros C. Mavroidis, Frederico Ortino

Faculty Scholarship

Following a recent European Charter Treaty (“ECT”) decision, it appears that the fate of intra-EU investment disputes, when adjudicated in fora other than the Luxembourg courts, is finally all but sealed. In Green Power, an arbitration tribunal confirmed prior decisions taken in different jurisdictions that there is no room for adjudicating intra-EU investment disputes away from Luxembourg. This decision sided with the approach already developed by the Court of Justice of the European Union (“CJEU”) in three decisions, namely, Achmea, Komstroy, and PL Holdings, which in turn led to legislative action by the Energy Charter Treaty aiming to put an …

Europe's Digital Constitution, Anu Bradford

Faculty Scholarship

This Article uncovers the fundamental values underlying the European Union’s expansive set of digital regulations, which in aggregate can be viewed as Europe’s “digital constitution.” This constitution engrains Europe’s human-centric, rights-preserving, democracy-enhancing, and redistributive vision for the digital economy into binding law. This vision stands in stark contrast to the United States, which has traditionally placed its faith in markets and tech companies’ self-regulation. As a result, American tech companies today are regulated primarily by Brussels and not by Washington. By highlighting the distinctiveness and the global reach of the European digital constitution, this Article challenges the common narrative that …

Fashion In The Times Of War: The Recent Exodus Of Luxury Brands From Russia And What It Means For Trademark Law, Irene Calboli, Vera Sevastianova

Faculty Scholarship

In February 2022, Russia infamously invaded Ukraine, starting an unprovoked war. As a result, many foreign companies left their Russia-based operations, including most luxury fashion houses. In these remarks, we elaborate on the possible issues that these companies may face regarding the enforcement of their IP rights in Russia, particularly trademark rights, following their departure resulting from the sanctions imposed by Western countries.

At the time of writing, perhaps the most pressing issue is whether luxury fashion houses risk losing their trademark rights in Russia due to their decision to suspend their operations, even though temporarily. An additional issue facing …

Legal Coding Beyond Capital?, Katharina Pistor

Faculty Scholarship

Capital, I argue in ‘The Code of Capital: How the Law Creates Wealth and Inequality’, is coded in law. Legal coding is a process that adapts and molds formal law over time, often without explicit ex ante sanctioning by a legislature or a court. Several characteristics of formal law make it susceptible to coding, including its inherent incompleteness, the strong endorsement for private autonomy, and decentralised access to a state’s consolidated means of coercion. Would a progressive European Code of Private Law (EPL-code), as proposed by Hesselink, alter any of this and what would it take to ensure that the …

International Bureaucracies: Extraterritorial Reach Of The European Commission’S Legal Expertise, Anu Bradford

Faculty Scholarship

The EU exercises significant influence over global regulatory standards, whether as a result of its ability to unilaterally export its rules to foreign markets via market mechanisms – a phenomenon that I have elsewhere described as ‘the Brussels Effect’ – or by entrenching them globally through bilateral or multilateral negotiations. In all cases, the legal expertise of the Commission is central. It either pro-actively supplies its expertise to their foreign counterparts or responds to the demand to offer technical expertise to create a rule-based order that closely imitates the regulatory state in Europe. Companies also resort to the Commission as …

Patient Access In Fourteen High-Income Countries To New Antibacterials Approved By The Fda, Ema, Pmda, Or Health Canada, 2010-2020, Kevin Outterson, Ebiowei S F Orubu, Muhammad H. Zaman, John Rex, Christine Årdal

Faculty Scholarship

In 2010, the Infectious Diseases Society of America called for 10 new antibiotics by 2020 [1]. This goal was achieved in terms of the number of drug approvals, but actual patient access requires commercial launches in many countries, which itself requires sustainable commercial markets. Prior work has described limited access to new antibacterials in low- and middle-income countries (LMICs), in part due to the inability of many to afford these drugs [2]. This study examines patient access for new antibacterials in the G7 and 7 other high-income countries in Europe, to better understand other barriers to …

Loving It To Pieces: Eu Law In Us Legal Academia, Revisited, Daniela Caruso

Faculty Scholarship

The Editors of the Special Issue have kindly invited me to update earlier reflections on the state of EU law in US legal academia. For a variety of reasons, it is important to me not to mislead the reader with the false promise of some kind of summa. What follows is my own perception of a complicated landscape, which I shall sketch lightly here in the hop of prompting other scholars of EU Law to report on their own US experience.

Informing Wto Reform: Dispute Settlement Performance, 1995-2020, Bernard M. Hoekman, Petros C. Mavroidis, Maarja Saluste

Faculty Scholarship

This article presents salient facts on the performance of WTO dispute settlement, using an updated dataset on cases adjudicated between 1992 and mid 2020. The dataset provides a comprehensive compilation of information on WTO disputes, including complainants, respondents and third parties; the substantive matters tabled; the WTO provisions invoked; the claims that are accepted or rejected by adjudicating bodies; the time involved to complete the consultation, panel and appeal (Appellate Body) stages; and the identity of panelists and how they were appointed. We highlight elements of the operation of the system that are salient to WTO reform discussions, while drawing …

Gdpr And The Importance Of Data To Ai Startups, James Bessen, Stephen Michael Impink, Lydia Reichensperger, Robert Seamans

Faculty Scholarship

What is the impact of the European Union’s General Data Protection Regime (“GDPR”) and data regulation on AI startups? How important is data to AI product development? We study these questions using unique survey data of commercial AI startups. AI startups rely on data for their product development. Given the scale and scope of their business models, these startups are particularly susceptible to policy changes impacting data collection, storage and use. We find that training data and frequent model refreshes are particularly important for AI startups that rely on neural nets and ensemble learning algorithms. We also find that firms …

The Global Dominance Of European Competition Law Over American Antitrust Law, Anu Bradford, Adam S. Chilton, Katerina Linos, Alex Weaver

Faculty Scholarship

The world’s biggest consumer markets – the European Union and the United States – have adopted different approaches to regulating competition. This has not only put the EU and US at odds in high-profile investigations of anticompetitive conduct, but also made them race to spread their regulatory models. Using a novel dataset of competition statutes, we investigate this race to influence the world’s regulatory landscape and find that the EU’s competition laws have been more widely emulated than the US’s competition laws. We then argue that both “push” and “pull” factors explain the appeal of the EU’s competition regime: the …

European Union Law And International Arbitration At A Crossroads, George A. Bermann

Faculty Scholarship

It is no exaggeration to describe the relationship between the European Union and international arbitration as the most dramatic confrontation between two international legal regimes seen in a great many years. International law scholars commonly lament the "fragmentation" of international law, i.e., the co-existence of multiple international legal regimes whose competences overlap and whose policies may differ, resulting in a degree of regulatory disorder. However, seldom do these regimes actually "collide." By contrast, the two international regimes in which we are interested this evening international arbitration and the European Union may be described, without hyperbole, as on a collision course. …

China As A "National Strategic Buyer": Toward A Multilateral Regime For Cross-Border M&A, Jeffrey N. Gordon, Curtis J. Milhaupt

Faculty Scholarship

Unlike the case of cross-border trade, there is no explicit international governance regime for cross-border M&A; rather, there is a shared understanding that publicly traded companies are generally for purchase by any bidder – domestic or foreign – willing to offer a sufficiently large premium over a target’s stock market price. The unspoken premise that undergirds the system is that the prospective buyer is motivated by private economic gain-seeking.

The entry of China into the global M&A market threatens the fundamental assumptions of the current permissive international regime. China has become a significant player in the cross-border M&A market, particularly …

Why Do Auditors Fail? What Might Work? What Won't?, John C. Coffee Jr.

Faculty Scholarship

Auditing failures and scandals have become commonplace. In response, reformers (including the Kingman Review in the U.K. and a recent report of the U.K.’s Competition and Market Authority) have proposed a variety of remedies, including prophylactic bans on auditors providing consulting services to their clients in the belief that this will minimize the conflicts of interest that produce auditing failures. Although useful, such reforms are already in place to a considerable degree and may have reached the point of diminishing returns. Moreover, this strategy does not address the deeper problem that clients (or their managements) may not want aggressive auditing, …

Borders, Bans, And Courts In The European Union, Maryellen Fullerton

Faculty Scholarship

No abstract provided.

Reflections On Us Involvement In The Promotion Of Clinical Legal Education In Europe, Philip Genty

Faculty Scholarship

What is the influence of the United States on European clinical legal education? The first reaction of many would be that this is not a particularly difficult question to answer. After all, clinical legal education is largely a US invention. Although one can find early examples of clinics in European law schools, the large-scale development of law school clinical education happened in the United States beginning in the 1960s. At present, there are clinical programs in each of the 207 American Bar Association (ABA)-approved US law schools. The Clinical Legal Education Association now lists 1,325 clinical teachers in its membership …

Legal Scholarship And External Critique In Eu Law, Daniela Caruso, Fernanda Nicola

Faculty Scholarship

The propensity to engage in a sustained critique of EU law marbles several contributions in this Volume and certainly animates this chapter. This generally critical stance takes the present stage of legal Europeanization as a fact and aims to make full use of the possibilities for political and social justice it can currently support, but at the same time it decries its many structural and dynamic drawbacks. In doing so, this critical project borrows liberally from CLS without fear of misreading or misappropriation. Irreverence in this context is a feature, not a bug. The CLS toolkit is clearly useful to …

Initial Public Offerings In The Cmu: A U.S. Perspective, Merritt B. Fox

Faculty Scholarship

This chapter begins by considering the especially severe information-asymmetry problem that plagues primary offerings of truly new securities. It then examines market-based solutions for these problems, the shortcomings of exclusive reliance on such solutions, and the rationale for having a government-designed affirmative-disclosure regime, whereby an issuer making an offering is required to answer certain questions. It also addresses the question of whether this regime should be imposed on all issuers making such offerings or only those that volunteer to be subjected to it. The remainder of the chapter considers the rationale for mandating the imposition of liability on issuers, issuer …

Foreword, George A. Bermann, Anu Bradford

Faculty Scholarship

European Union ("EU") law is no more immune than any other functioning body of law to technological innovation, and the European institutions need to adapt to such change. EU law has done so in a wide variety of ways, only a sampling of which can be presented in this issue of the Columbia Journal of European Law that we are honored to introduce. The Journal's commission of this Special Issue evidences its keen awareness of both the promises and challenges that technological change presents to Europe and its legal institutions.

All Quiet In The Western (European Football) Front: Regulation Of Football In The European Continent, Petros C. Mavroidis

Faculty Scholarship

Regulation of football in Europe is, absent some piecemeal interventions (like sharing of TV rights) largely non-existent. This is the case, because the de facto regulator (UEFA, Union Européenne of Football Associations) has no mandate to comprehensively address on its own competitive balance, the focal point of football, and, in more general terms, sports regulation. Various aspects of competitive balance are part and parcel of antitrust law. European Union (EU) law thus, comes into the frame, since this is the body of law regulating antitrust in the European continent. The European Union, nevertheless, has no mandate to regulate football comprehensively, …

Another One Bites The Dust: The Distance Between Luxembourg And The World Is Growing After Achmea, Petros C. Mavroidis, Carlo M. Cantore

Faculty Scholarship

The CJEU has become a gatekeeper. Ever since Opinion 1/91, the CJEU has been imposing barriers to the recognition of decisions by foreign jurisdictions. Its recent Achmea decision is the natural consequence of case law so far. This attitude would not be problematic by itself since, through this attitude, the European Union would still be liable at the international plane, even if it did not implement its international obligations (liability- over property rules). This is not the end of the story. The CJEU accepts the, in principle, relevance of decisions by some international jurisdictions. However, the CJEU has repeatedly failed …

Refugees And The Primacy Of European Human Rights Law, Maryellen Fullerton

Faculty Scholarship

No abstract provided.

What Can Europe Tell Us About The Future Of American Federalism?, Ernest A. Young

Faculty Scholarship

No abstract provided.

How Should The E.U. Respond To Brexit And Trump?: The Lessons From Trade Wars, John C. Coffee Jr.

Faculty Scholarship

The U.K.’s decision to exit the E.U. (popularly known as “Brexit”) sets the stage for a potential retaliatory trade war. Similarly, the aggressive nationalism of U.S. President Donald Trump does also. In both cases, game theory suggests how such a conflict might be resolved. This paper first examines three standard game theory models – the Chicken Game, the Prisoner’s Dilemma, and the Stag-Hunt Game – and then turns to the strong incentives for rent-seeking by special interests and considers how rent-seeking likely affects how these games might play out. Although the conventional wisdom expects that the U.K. will suffer retaliation …

A Tale Of Two Continents: Environmental Management-Based Regulation In The European Union And The United States, Rachel E. Deming

Faculty Scholarship

No abstract provided.

The Human Rights Of Sea Pirates: Will The European Court Of Human Rights Decisions Get More Killed?, Barry Hart Dubner, Brian Othero

Faculty Scholarship

No abstract provided.

The European Union: A Comparative Perspective, Ernest A. Young

Faculty Scholarship

This chapter, to be included in the Oxford Principles of EU Law volume, compares the federalisms of Europe and the United States. It argues that Europe can be sensibly viewed from both federal and intergovernmental perspectives, and that particular aspects of the European Union’s structure fit each model. In particular, the EU is federal—that is, integrated to a comparable degree to the U.S.—with respect to its distribution of competences and the sovereignty attributed to EU law and institutions. But it is intergovernmental—that is, it preserves a center of gravity within the individual member states—with respect to the allocation of governmental …

Does Brexit Spell The Death Of Transnational Law?, Ralf Michaels

Faculty Scholarship

The British leave vote in the referendum on EU membership has important implications for how we think about law . The vote must be viewed as a manifestation of a globalized nationalism that we find in many EU member states and many other countries. As such, it is also a challenge of the idea of transnational law, forcefully introduced in Jessup’s book on Transnational law 60 years ago. In this paper, I suggest that the hope to return from transnational law to the nation state of the 19th century is nostalgic and futile. However, I argue that transnational law has …

Corporate Governance Changes As A Signal: Contextualizing The Performance Link, Merritt B. Fox, Ronald J. Gilson, Darius Palia

Faculty Scholarship

Promoting “good” corporate governance has become an important concern. One result has been the creation of indexes that purport to measure the quality of a firm’s corporate governance structure. Prior scholarship reports a positive relationship between firms with good corporate governance index ratings and stock-price-based measures of a firm’s ability to create share value, such as Tobin’s Q. Little work, however, explores why we observe this relationship.

We hypothesize one reason for the relationship is that a rating-altering change in corporate governance structure can be a signal concerning the quality of a firm’s management. Changes in governance structures that result …

Minimum Fees For The Self-Employed: A European Response To The "Uber-Ized" Economy?, Eva Grosheide, Mark Barenberg

Faculty Scholarship

In advanced market economies in Europe and North America, a large and growing percentage of the workforce is self-employed. This group earns a contractual fee from clients, rather than a wage or salary from employers, one form of the so-called "Uberization" of the labor market. Through an analysis of the Court of Justice of the European Union's (CJEU) rulings, this Article explores whether minimum fees for the self-employed could be implemented without infringing European Union (EU) competition law. In particular, it lays out four possible legal mechanisms – what the paper dubs "U-turns" – that swerve around the social harms …

Fairness At A Time Of Perplexity: The Civil Law Principle Of Fairness In The Court Of Justice Of The European Union, Daniela Caruso

Faculty Scholarship

The general principle of fairness, recently articulated by the Court of Justice of the European Union in the context of consumer law, is bound to prompt ambivalent scholarly reactions. Fairness in private law could be dismissed as hopelessly indeterminate: yet another venue of judicial balancing, a technique already seen ad nauseam in Luxembourg, whereby lip service is paid to conflicting considerations, but no real solace can be found against regressive outcomes of law and policy choices. At the same time, the judicial articulation of a general principle of fairness in private law could be seen as a prompt for domestic …