International Law Commons^™

Jurisdiction Over Non-Eu Defendants: The Brussels I Article 79 Review, Ronald A. Brand

Book Chapters

When the original EU Brussels I Regulation on Jurisdiction and the Recognition of Judgments was “recast” in 2011, the Commission recommended that the application of its direct jurisdiction rules apply to all defendants in Member State courts, and not just to defendants from other Member States. This approach was not adopted, but set for reconsideration through Article 79 of the Brussels I (Recast) Regulation, which requires that the European Commission report in 2022 on the possible application of the direct jurisdiction rules of the Regulation to all defendants. Without such a change, the Recast Regulation continues to allow each Member …

The Values-Based Trade Agenda, Fernanda Giorgia Nicola Dr., Michelle Egan

Articles in Law Reviews & Other Academic Journals

With the increasing trade tensions between the United States and China, pressures created by Brexit, and the COVID-19 pandemic, most trade scholars have focused on rising protectionism exhibited through defensive strategies such as tariffs and export controls. However, this focus ignores the fundamental shift in international trade goals of the United States and the European Union towards a values-based trade agenda.

Instead of merely focusing on free trade based on efficiency and market access, trade regulators on both sides of the Atlantic have independently pursued measures designed to address environmental sustainability and social equity. These policies resonate with their domestic …

L’Europe Face Aux Défis De Pluralismes Inattendu, Vivian Grosswald Curran

Book Chapters

This contribution to a Festschrift in honor of Mireille Delmas-Marty explores the challenges for Delmas-Marty’s aim of “ordered pluralism” within the EU, given the departures from fundamental EU values by some of its Member States in recent years. It touches on the divided pasts of the Western and Eastern members of the EU, building on work of C. Joerges and T. Snyder in that area, addressing how the different historical narratives may be understood. It also suggests the utility of Article 17 of the European Convention, as was done by the partially concurring, partially dissenting judges in the Navalny v. …

Regulating Antitrust Through Trade Agreements, Anu Bradford, Adam S. Chilton

Faculty Scholarship

Antitrust law is one of the most commonly deployed instruments of economic regulation around the world. To date, over 130 countries have adopted a domestic antitrust law. These countries comprise developed and developing nations alike, and combined produce over 95 percent of the world’s GDP. Most of the countries that have adopted an antitrust law have done so since 1990. This period of significant proliferation of antitrust laws also coincides with a notable expansion of international trade agreements, including the creation of the World Trade Organization (WTO) in 1995 and the negotiation of numerous bilateral and multilateral trade agreements. These …

Narratives Of Quality In European Food Governance And Beyond, Lorenzo Bairati

FIU Law Review

No abstract provided.

Like Oil Floating On Water: Italy’S Olive Crisis And The Politics Of Backlash Against Transnational Legal Orders, Tommaso Pavone

FIU Law Review

No abstract provided.

Comparative Method And International Litigation 2020, Ronald A. Brand

Articles

In this article, resulting from a presentation at the 2019 Annual Meeting of the American Society of Comparative Law, I apply comparative method to international litigation. I do so from the perspective of a U.S.-trained lawyer who has been involved for over 25 years in the negotiations that produced both the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. The law of jurisdiction and judgments recognition is probably most often taught in a litigation context. Nonetheless, that law has as much or more …

The Effectiveness And Application Of The Eu Principle Of Consistent Interpretation In Hungarian Courts, Fabio Ratto Trabucco

Indiana Journal of Global Legal Studies

This study of how the Hungarian courts have applied the principle of consistent interpretation demonstrates the striking degree to which this statutory interpretation method has been derived from EU law and embedded in the national courts' practice. Originating in the jurisprudence of the EU Court of Justice and based on the principle of sincere cooperation set out in Article 4(3) EU Treaty, the principle of consistent interpretation consists of a duty incumbent on all public authorities, including national courts, to interpret national law in conformity with EU law. Consistent interpretation plays an important role in enabling individuals to secure rights …

Enforcement Mechanisms For International Standards Of Judicial Independence: The Role Of Government And Private Actors, Rachel Stopchinski

Indiana Journal of Global Legal Studies

In 2017, the prevailing political party in Poland, Law and Justice (Prawo i Sprawiedliwos6), proposed a series of radical legislative changes designed to strip the Polish judiciary of its independence. Though the European Union (EU) has extensively investigated this egregious attack on the rule of law, no concrete steps have been taken to impose sanctums on, or otherwise discipline, the Polish government for defying EU ideals. Despite the fundamental importance of judicial independence in maintaining the rule of law, there are presently no widely adopted international standards of judicial independence. Therefore, no guidelines are promulgated for governments to follow, and …

Refugee Crisis In Germany And The Right To A Subsistence Minimum: Differences That Ought Not Be, Ulrike Davy

Georgia Journal of International & Comparative Law

No abstract provided.

Cashless Societies And The Rise Of The Independent Cryptocurrencies: How Governments Can Use Privacy Laws To Compete With Independent Cryptocurrencies, Matla Garcia Chavolla

Pace International Law Review

Many individuals (including governments) envision living in a future world where physical currency is a thing of the past. Many countries have made great strides in their efforts to go cashless. At the same time, there is increasing awareness among citizens of the decreasing amount of privacy in their lives. The potential hazards cashless societies pose to financial privacy may incentivize citizens to hold some of their money in independent cryptocurrencies. This article argues that in order for governments in cashless societies to keep firm control over their money supply, they should enact stronger privacy law protections for its citizens …

Given Today's New Wave Of Protectionsim, Is Antitrust Law The Last Hope For Preserving A Free Global Economy Or Another Nail In Free Trade's Coffin?, Allison Murray

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

To Secede Or Not Secede? Is It Even Possible?, T. Z. Cook

Indiana Journal of Global Legal Studies

Secession seems like a concept of the past. In our increasingly globalizing world, nationalism was growing archaic and halting progress. But secession has seen a surge in the last ten years. Kosovo declared independence from Serbia in 2008. The United Kingdom seceded from the European Union in the infamous "Brexit." And in 2017, Catalonia's grab for independence sparked the worst crisis in Spain since the days of Francisco Franco.1 Alongside these high-profile secessions, smaller movements, which until now were simply brewing and bubbling, are becoming inspired. One such movement is "The South is My Country," a coalition of three southern …

The Human Rights Movement And The Prevention Of Evil: The Need To Look Inward As Well As Out, Jeffrey A. Brauch

Catholic University Law Review

The modern human rights movement began as a response to great evil perpetrated by individuals and nations against others during and preceding World War II. The movement has been dedicated to protecting the rights of individuals by confronting evil and holding nations accountable should efforts to prevent it fail.

This article contends that while the human rights movement is good at confronting evil “out there,” it has failed in important ways to recognize flaws within itself. In particular, it displays a hubris that shows itself in two ways. First, the movement has embraced a utopian expansion of rights to be …

The European Union, The Member States, And The Lex Mercatoria, Gabriella Saputelli

Notre Dame Journal of International & Comparative Law

The phenomena linked to the "internationalization" and "globalization" of the economy prompt the demand for uniform legal frameworks in supranational governance and encourage forms of “self-regulation”. This spontaneous attempt at harmonizing law at the supranational level is often prepared by market forces and comes to add to the classical legal models while leading to the emergence of a new lex mercatoria.

The aim of this paper is to analyze the openings of the European system to the transnational production of law identified under the term "new lex mercatoria" by verifying all the factors that allow its sources of law to …

Refugees In The European Union: The Harsh Reality Of The Dublin Regulation, Lana Maani

Notre Dame Journal of International & Comparative Law

The refugee crisis is a highly contested and controversial issue. The world, and specifically Europe, has seen a rapid increase in the number of refugees applying for asylum. In fact, the European Union (“EU”) has received well over one million refugees: the highest number of refugees since the Second World War. The crisis is testing the EU’s main building blocks, including, most importantly, its Member States’ notion of an ever-closer union. Some Member States have been more responsive to the crisis than others. For example, Germany is the highest refugee hosting country in the EU. On the other hand, Hungary …

European (Dis)Union: From The 1992 Single Market To Brexit, Caroline Bradley

University of Miami International and Comparative Law Review

No abstract provided.

Corporate Codes As Private Co-Regulatory Instruments In Corporate Governance And Responsibility And Their Enforcement, Jan Eijsbouts

Indiana Journal of Global Legal Studies

Corporate Social Responsibility (CSR) codes have gained a prominent role as tools in self-regulation for companies to establish their basic values, norms, and rules that condition the conduct of directors, managers, employees, and-increasingly-of suppliers. This development must be seen in the light of two important paradigmatic changes in the concepts both of CSR and corporate governance. The former is no longer purely voluntary and the latter has become inclusive of CSR, each with far-reaching consequences for the raison d'itre and the place and function of the codes in the smart regulatory mix governing corporations. While the codes were based originally …

Legislative Sovereignty, Executive Power, And Judicial Review: Comparative Insights From Brexit, René Reyes

Michigan Law Review Online

In June 2016, participants in a United Kingdom referendum voted to leave the European Union (EU) by a margin of 52% to 48%. The timing and terms of Britain’s exit (commonly known as “Brexit”) are the subject of on-going public and parliamentary debate. But the mechanism by which Brexit is to be formally commenced was clarified by the U.K. Supreme Court at the end of January 2017 in the landmark case R (Miller) v. Secretary of State for Exiting the European Union. The question presented was whether ministers of Theresa May’s government could give notice of the U.K.’s withdrawal …

Balancing A Right To Be Forgotten With A Right To Freedom Of Expression In The Wake Of Google Spain V. Aepd, Shaniqua Singleton

Georgia Journal of International & Comparative Law

No abstract provided.

The Esa Guidelines: Soft Law And Subjectivity In The European Financial Market-Capturing The Administrative Influence, Jakob Schemmel

Indiana Journal of Global Legal Studies

The disastrous performance of European financial-market regulation during the 2008 financial crisis convinced the European powers-that- be of the urgent need for further integration. Since then the European Union (EU) has established three European Supervisory Authorities (ESAs), which are commissioned to enhance capacity and harmonization of the European banking, insurance, and capital markets law. In carrying out this task, the ESAs employ so called ESA Guidelines, which have caught the attention of practitioners and scholars alike. As soft law, they bear a strong resemblance to instruments used on the global level to regulate the financial markets and therefore might fall …

Slides: Water Allocation And Water Markets In Spain, Nuria Hernández-Mora

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Presenter: Nuria Hernández Mora, Universidad de Sevilla, Spain

22 slides

Seeing Color: Implications Of The European Union's New Common Practice For Transatlantic Trademark Registration By United States Trademark Holders, Christine Park

Seattle University Law Review

This Note explores two issues related to the EU’s new common practice: (1) whether the new common practice will deter ongoing efforts to integrate trademark registration and protection at the international level; and (2) whether U.S. trademark holders, when expanding business into the EU, should register through the Madrid Protocol and obtain Community Trade Mark or register through a country’s trademark office. This Note argues that the new trademark practice hinders international efforts for standardizing trademark registration and that U.S. trademark holders should claim color when registering their marks with the EU.

Taking Constitutional Identities Away From The Courts, Pietro Faraguna

Brooklyn Journal of International Law

In federal states, constitutional identity is the glue that holds together the Union. On the contrary, in the European Union—not a fully-fledged federation yet—each Member state has its own constitutional identity. On the one hand, the Union may benefit from the particular knowledge, innovation, history, diversity, and culture of its individual states. On the other hand, identity-related claims may have a disintegrating effect. Constitutional diversity needs to come to terms with risks of disintegration. The Treaty on the European Union seeks a balance, providing the obligation to respect the constitutional identities of its Member states. Drawing from the European experience, …

Regulatory Incentive Realignment And The Eu Legal Framework Of Bank Resolution, Andromachi Georgosouli

Brooklyn Journal of Corporate, Financial & Commercial Law

Risks associated with incentive misalignment are liable to seriously jeopardize the effectiveness of bank resolution, when not properly contained. This Article considers the management of misaligned incentives between regulators that are found in a vertical relationship of public governance. Using the EU legal framework of bank resolution as its case study, this Article explores the effectiveness of the quasi-enforcement powers of the Single Resolution Board (SRB) and, where relevant, of the European Banking Authority (EBA) as an incentive realignment legal technique. Two principal difficulties are identified: on the one hand, the problematic interinstitutional dynamic of the SRB and the EBA …

The Need For An International Convention On Data Privacy: Taking A Cue From The Cisg, Morgan Corley

Brooklyn Journal of International Law

In light of the invalidation of the U.S.-EU Safe Harbor, along with the increase in sales of personal data as a commodity, data privacy has become a major concern amongst different nations. The lack of harmonization of data-privacy laws around the world continues to pose obstacles to the free flow of data across national borders. The free flow of data is, nonetheless, essential the international economy. As a result, nations continue to work together to try to create mechanisms by which data can be transferred across borders in a secure manner. This Note examines the current state of data-privacy law …

A Comparison Of The Jurisprudence Of The Ecj And The Efta Court On The Free Movement Of Goods In The Eea: Is There An Intolerable Separation Of Article 34 Of The Tfeu And Article Of 11 Of The Eea?, Jarrod Tudor

Jarrod Tudor

Article 11 of the European Economic Area (“EEA”) and Article 34 of the Treaty on the Functioning of the European Union (“TFEU”) prohibit quantitative restrictions on the free movement of goods. The EEA is monitored by the European Free Trade Area Court (“EFTA Court”) and the TFEU is monitored by the European Court of Justice (“ECJ”). In theory, the EFTA Court and the ECJ should interpret Article 11 and Article 34 in the same manner in order to promote harmonization of the law on the free movement of goods and allow for further economic integration between EFTA and the EU. …

The Free Movement Of Capital In Europe: Is The European Court Of Justice Living Up To Its Framers' Intent And Setting An Example For The World?, Jarrod Tudor

Jarrod Tudor

The benefits to free movement of international financial flows are numerous but include an efficient asset market and the opportunity for economic growth and development for countries engaged in an agreement allowing for such freedom. The free movement of capital is one of the four pillars of the Treaty on the Function of the European Union (TFEU) along with the free movement of goods, services, and labor. Article 63 of the TFEU prohibits limitations on the free movement of capital while Article 65 of the TFEU allows for some exceptions. Not only does the free movement of capital doctrine suppose …

Discriminatory Internal Taxation In The European Union: The Power Of The European Court Of Justice To Limit The Tax Sovereignty Of Member-States Under Article 110 Of The Tfeu, Jarrod Tudor

Jarrod Tudor

Protectionism can come in a variety of methods including the use of internal taxation policies that discriminate against imports making those imports more expensive on the domestic market and thus favoring domestically-produced goods. Discriminatory taxation policies have been developed by member-states to mask protectionism by distinguishing products based on import status, product similarity, product life cycle, consumption, tax collection practices, transportation charges, and state aid. The Framers of the Treaty on the Functioning of the European Union (TFEU) wrote Article 110 with the objective in mind to prohibit internal taxation policies from discriminating against goods in made in other member-states. …

Biosimilar Naming: A Call For Uniformity In A Complex Field, Jacqueline Genovese

Brooklyn Journal of International Law

Recombinant technology has opened a pathway for a means of producing a variety of therapeutic proteins and generating the growth of the biopharmaceutical industry. Further, due the patent expirations of a number of biologics in the coming years, there has been an increased interest in the development of generic biologics, also known as biosimilars, and a widespread push for biosimilar FDA approval in the United States. While the pressure for the expansion of biosimilar approval is warranted, the FDA must be cautious when implementing regulatory guidelines. Since biologics differ greatly from small-molecule drugs, biologics have a distinct approval process. The …