Law Commons^™

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 …

Looking Out, Looking In: How India Can Respond To A Carbon Border Adjustment Mechanism On The Principles Of Justice And Equity In The Net-Zero Transition, Paridhi Srivastava

LL.M. Essays & Theses

The net-zero transition is a curious term. It is multi-dimensional. It must be inclusive, equitable, and just—considering the different realities of various economies and various pathways to achieving net-zero. One of the merits of global climate action since the Paris Agreement in 2015 has been its attempt to balance climate change justice with inter-generational justice and environmental justice. But as evidenced from the international momentum brewing in a post-Paris world leading up to Glasgow, the problems of justice are not abated with a net-zero transition — they are indeed being rendered more poignant by it. While it is just to …

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 …

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 …

Transparency For Whom? Grounding Land Investment Transparency In The Needs Of Local Actors, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Transparency is often seen as a means of improving governance and accountability of investment, but its potential to do so is hindered by vague definitions and failures to focus on the needs of key local actors.

In this new report focusing on agribusiness, forestry, and renewable energy projects (“land investments”), CCSI grounds transparency in the needs of project-affected communities and other local actors. Transparency efforts that seek to inform and empower communities can also help governments, companies, and other actors to more effectively manage operational risk linked to social conflict.

Troublingly, the report finds that:

• Disclosures around land investments continue …

Should The European Union Fix, Leave Or Kill The Energy Charter Treaty?, Martin Dietrich Brauch

Columbia Center on Sustainable Investment Staff Publications

In the early 1990s, the European Economic Community – the predecessor of the European Union (EU) – spearheaded an initiative to promote international cooperation in the energy sector, particularly with post-Soviet States in Eastern Europe and Central Asia. Out of this process the Energy Charter Treaty (ECT) was born in 1994. Going much beyond international cooperation, the treaty allows foreign investors in the energy sector to sue their host States in international arbitral tribunals and claim monetary compensation when policy measures and other State action affect their interests.

Fast-forward to 2021. With 135 known cases initiated to date, the ECT’s …

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 …

The Comet Framework: Greenhouse Gas Data Transparency To Enable The Success Of Eu Climate Policy, Martin Dietrich Brauch, Solina Kennedy

Columbia Center on Sustainable Investment Staff Publications

To further and fully understand how to plan for the decarbonization of mining value chains, we need better data on carbon and other greenhouse gas (GHG) emissions. However, neither consumers, corporates, or financial institutions know the embodied emissions in the products they produce or sell. While methods like life-cycle analysis and environmental product declarations exist, none use a verifiable, comparable, or widely adopted emissions reporting framework capable of sending supply chain signals.

To truly reform material supply chains, new solutions for markets, capital, and policy are required. COMET (the Coalition on Materials Emissions Transparency)—an alliance launched at Davos in January …

Copyright Infringement Liability Of Online Content Sharing Platforms In The Us And In The Eu After The Digital Single Market Directive: A Case Study, Teresa García-Barrero

Kernochan Center for Law, Media, and the Arts

The EU copyright liability regime for internet service providers has significantly changed after the enactment of article 17 of the Digital Single Market Directive. Where two fairly similar systems once existed in the US and in the EU, there are now significant differences between the regimes with which service providers must comply in each region. This paper seeks to offer a practical view of the differences between both systems through a comparative analysis of the result that the application of each legal framework would have on an identical factual case. Specifically, this paper contrasts the decision reached by US courts …

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 …

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. …

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, …

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 …

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 …

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 …

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 …

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, …

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.

Public Consultation On A Multilateral Reform Of Investment Dispute Settlement, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

In March 2017 CCSI made a submission to the European Commission (EC) in response to its “Public consultation on a multilateral reform of investment dispute settlement.” CCSI’s submission consisted of a response to the form questionnaire created by the EC and a supplementary “Position Paper” to explain in greater depth CCSI’s views on the EC’s proposed Multilateral Investment Court (MIC).

In its Position Paper, CCSI emphasizes the importance of international investment and international law to sustainable development objectives. The submission stresses, however, that the EC’s proposed MIC does not address, and therefore does not remedy, the most problematic aspects of …

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 …

Beyond Trade Deals: Charting A Post-Brexit Course For Uk Investment Treaties, Lise Johnson, Lorenzo Cotula

Columbia Center on Sustainable Investment Staff Publications

The Brexit referendum has raised questions about the future terms of the United Kingdom’s engagement with the world economy. While a debate over the UK’s future approach to trade deals has already begun, a similar discussion has yet to develop on the treaties that govern foreign investment. As this briefing note by Lorenzo Cotula of the International Institute for Environment and Development, and Lise Johnson of CCSI highlights, the stakes are high: ill-designed treaties could leave the UK excessively exposed to legal claims by foreign companies and could fail to address relevant economic, social and environmental challenges. While meaningful negotiations …

The Outsized Costs Of Investor–State Dispute Settlement, Lise Johnson, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

The negotiation of several mega-treaties in 2015, including the Trans-Pacific Partnership (TPP), the Trans-Atlantic Trade and Investment Partnership (TTIP), the EU-Canada Comprehensive Economic and Trade Agreement (CETA), and other regional agreements, has generated substantial public discussion about the protections and privileges afforded to multinational enterprises through the investor-state dispute settlement (ISDS) mechanism in these treaties. ISDS has increasingly raised concerns among certain governments and civil society groups, particularly as a growing number of ISDS cases involve investors challenging a range of governmental measures taken in good faith and in the public interest, including measures related to environmental protection, public health …

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 …

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 …

Investor-State Dispute Settlement, Public Interest And U.S. Domestic Law, Lise Johnson, Lisa E. Sachs, Jeffrey D. Sachs

Columbia Center on Sustainable Investment Staff Publications

As negotiations are ongoing in the Trans-Pacific Partnership (TPP) and the Trans-Atlantic Trade and Investment Partnership Agreement (TTIP), CCSI staff and Jeffrey Sachs discuss the implications of investor-state dispute settlement (ISDS) for domestic law and policy, focusing on effects within the US. The paper concludes that the risks ISDS poses for domestic law are significant and unjustified, and that there are preferable policy alternatives to pursue as a means of protecting the rights of investors operating overseas.

A Tale Of Two Kadis: Kadi Ii, Kadi V. Geithner & U.S. Counterterrorism Finance Efforts, Douglas Cantwell

National Security Law Program

The European Court of Justice's final decision in Kadi II-Yassin Abdullah Kadi's challenge in Europe to his designation as an international terrorist financier has stimulated significant discussion on the relationship between European and international law. Less attention has been paid to the Kadi II's correlate in US. courts, Kadi v. Geithner, decided in the D.C. Circuit. The varying outcomes in these cases create a "transnational split record" that has implications for reform of multilateral counterterrorism sanctions.

This Note considers the impact of Kadi's legal challenges in the United States and Europe from the perspective of U.S. counterterrorism policy. …

Law And Fiction In Medieval Iceland: The Story In The Gragas Manuscripts, Thomas J. Mcsweeney

Studio for Law and Culture

Medieval Icelandic law has been appropriated for modern purposes as diverse as creating a history for European democracy and proving that a libertarian legal system can work in practice. It has been put to so many modern uses because it presents us with a picture of the Icelandic Commonwealth (ca. 930-1262) as a society of free and relatively equal farmers who operated with no king, no nobility, and minimal government. The laws represent Iceland as an exceptional polity, strikingly different from the monarchies and hierarchical societies that dominated Western Europe in the middle ages. This exceptionalism resonates strongly with modern …

Global Experimentalist Governance, Grainne De Burca, Robert O. Keohane, Charles F. Sabel

Faculty Scholarship

This article outlines the concept of Global Experimentalist Governance (GXG). GXG is an institutionalized transnational process of participatory and multilevel problem solving, in which particular problems, and the means of addressing them, are framed in an open-ended way, and subjected to periodic revision by various forms of peer review in light of locally generated knowledge. GXG differs from other forms of international organization and transnational governance, and is emerging in various issue areas. The Montreal Protocol on ozone-depleting substances is used to illustrate how GXG functions. The conditions for the emergence of GXG are specified, as well as some of …

Introduction, George A. Bermann

Faculty Scholarship

It is an honor to introduce this special issue of the Columbia Journal of European Law devoted to the legal method of the European Court of Justice (ECJ). That the issue consists of a single article should come as no surprise to anyone acquainted with Judge Koen Lenaerts, whose keen appreciation of the workings of the Court is quite simply unrivaled.

Exporting Standards: The Externalization Of The Eu's Regulatory Power Via Markets, Anu Bradford

Faculty Scholarship

This Article examines the unprecedented and deeply underestimated global power that the EU is exercising through its legal institutions and standards, and how it successfully exports that influence to the rest of the world. Introducing the notion of “the Brussels Effect,” the Article shows how market forces alone are sufficient to convert EU standards into global standards. Without the need to use international institutions or seek other nations’ cooperation, the EU has a strong and growing ability to promulgate regulations that become entrenched in the legal frameworks of developed and developing markets alike, leading to a notable “Europeanization” of many …