Transnational Law Commons^™

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 …

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 …

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.

5g And Net Neutrality, Christopher S. Yoo, Jesse Lambert

All Faculty Scholarship

Industry observers have raised the possibility that European network neutrality regulations may obstruct the deployment of 5G. To assess those claims, this Chapter describes the key technologies likely to be incorporated into 5G, including millimeter wave band radios, massive multiple input/multiple output (MIMO), ultra-densification, multiple radio access technologies (multi-RAT), and support for device-to-device (D2D) and machine-to-machine (M2M) connectivity. It then reviews the business models likely to be associated with 5G, including network management through biasing and blanking, an emphasis on business-to-business (B2B) communications, and network function virtualization/network slicing. It then lays out the network neutrality regulations created by the EU …

Online Dispute Resolution, Ronald A. Brand

Articles

This chapter was prepared from a presentation given by the author at the 2019 Summer School in Transnational Commercial Law & Technology, jointly sponsored by the University of Verona School of Law and the Center for International Legal Education (CILE) of the University of Pittsburgh School of Law. In the paper, I review online dispute resolution (ODR) by considering the following five questions, which I believe help to develop a better understanding of both the concept and the legal framework surrounding it:

A. What is ODR?

B. Who does ODR?

C. What is the legal framework for ODR?

D. What …

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 …

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 European Union's Human Rights Obligations Towards Distant Strangers, Aravind Ganesh

Michigan Journal of International Law

Section I begins by setting out certain provisions added by the Lisbon Treaty requiring the European Union to promote human rights, democracy, and the rule of law in all its “relations with the wider world.” Section II then recounts a recent interpretation of these provisions, which understands them primarily as mandating compliance with international law, and thus largely denies extraterritorial human rights obligations to protect. While the fundamentals of this “compliance” reading are correct, Section III demonstrates that the notion of international law involved here entertains an expansive view of prescriptive jurisdiction, that is, a political institution’s authority to prescribe …

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 …

Law, Fiscal Federalism, And Austerity, R. Daniel Kelemen

Indiana Journal of Global Legal Studies

In response to the Eurozone crisis, European Union leaders have undertaken a number of dramatic reforms, including the imposition of a new regime for fiscal governance of Eurozone Member States. The 2012 Fiscal Compact Treaty, one of the lynchpins of this package of reforms, requires states to incorporate judicially enforceable balanced-budget rules into national law. This article explores this effort to judicialize austerity in the European Union, focusing on two interrelated sets of questions. First, why did EU leaders turn to the courts and ask them to become the stewards of fiscal discipline, and second, should we expect the effort …

Potential Exit From The Eurozone: The Case Of Spain, Antonio Estella

Indiana Journal of Global Legal Studies

According to a recent opinion poll that covered seven members of the Eurozone, Spain would be the Member State of this group that is most in favor of leaving the euro. In this public opinion context, and above all since the summer of 2012, debate has been growing in this country about the prospects of its exiting the European Monetary Union. In this article I argue that there are good reasons for taking this debate seriously. Using Spain as a case study, I analyze what the determinants of this decision could be. In particular, I analyze the economic determinants that …

Austerity, The European Council, And The Institutional Future Of The European Union: A Proposal To Strengthen The Presidency Of The European Council, Federico Fabbrini

Indiana Journal of Global Legal Studies

This article contextualizes the resilience of austerity in Europe, explaining it in light of the transformations in the EU system of governance. As the article maintains, since the eruption of the Eurocrisis, the European Council-the body congressing the heads of state and government of the EU member states together with its President and the President of the European Commission-has risen to the center of EU governance. In an intergovernmental institution such as the European Council, however, larger and wealthier states have been able to impose their preferences on other states-a development that is at odds with the anti-hegemonic nature of …

The European Union, State-Sponsored Gambling, And Private Gambling Services: Time For Harmonization?, Matthew W. Mauldin

Georgia Journal of International & Comparative Law

No abstract provided.

Eu-Switzerland: Quo Vadis?, Marc Maresceau

Georgia Journal of International & Comparative Law

No abstract provided.

The International Human Rights Regime And Supranational Regional Organizations: The Challenge Of The Eu, Pauline Hilmy

Michigan Journal of International Law

The global legal order as we know it today developed largely to accommodate and facilitate the modern state system that arose in the wake of the 1648 Treaty of Westphalia. As a result, international law consists primarily of international agreements1 and customary rules arising out of state practice and recognition.2 States still remain the primary subjects of international law today, but they are increasingly joined by other actors on the global stage, including international organizations and individuals–and the global legal order has struggled to adapt and adjust.

European Arrest Warrants In The Uk: What Can Britain Learn From American Due Process?, Andrei Vlad Ionescu

Georgia Journal of International & Comparative Law

No abstract provided.

A New Role For Secondary Proceedings In International Bankruptcies, John A. E. Pottow

Articles

Secondary proceedings-the ugly stepsisters to main proceedings-get short shrift in international bankruptcy scholarship. This article seeks to remedy that deficiency. First, it describes what it argues are the traditional conceptions-both stated and implicit-of secondary proceedings in international bankruptcies. Second, it offers a revised way of thinking about secondary proceedings, proposing to restrict their scope through the use of "synthetic" hearings. Third, it addresses some problems with the proposed new role of secondary proceedings and sketches a possible solution involving the creation of an international priorities registry.

Theorizing Transnational Law - Observations On A Birthday, Susanne Baer

Articles

There are many ways to theorize transnational law. As always, there is a mainstream, and there are “sidestreams.” However, it may be more interesting to consider from which direction such theories develop. Here, in appreciation of what the German Law Journal did to transnational legal conversations, I suggest to consider three directions in transnational legal studies: (1) theorizing from above; (2) theorizing from below; and (3) theorizing from inside. As you will see, much of the theories are in the German Law Journal (GLJ).

Implied Powers Beyond Functional Integration? The Flexibility Clause In The Revised Eu Treaties, Carl Lebeck

Florida State University Journal of Transnational Law & Policy

No abstract provided.

Are Eu Trade Sanctions On Burma Compatible With Wto Law?, Robert L. Howse, Jared M. Genser

Michigan Journal of International Law

This Article will explore the European Union's approach to Burma. The European Union, until recently, has implemented quite limited trade sanctions against the Burmese junta. According to the most recent figures, E.U. countries still import €306 million ($454 million) of commodities and products, ninety-five percent of which are textiles, timber, gems, and precious metals. However, the Common Position of November 19, 2007, strengthens considerably E.U. measures against the Burmese regime and contains a ban on the importation of these goods from Burma. Further, the Common Position requires E.U. countries to prohibit intentional and knowing "participation" in activities that "directly or …

Worth Doing Well- The Improvable European Union Constitution, Stephen C. Sieberson

Michigan Journal of International Law

As background for this critique of the Constitution, Part II of this Article provides a brief overview of the existing EU Treaties, their shortcomings, and the political processes that culminated in the creation of the new Constitution. Of particular interest are certain goals articulated for the new document, such as the desire to replace the complex Treaties with a simpler, more approachable instrument. Part III is a summary of the Constitution's textual content, details that are necessary to illuminate the analysis that follows. Part IV offers a critical review of the awkward manner in which the Constitution is organized. In …

Envisioning A Global Legal Culture, Charles H. Koch Jr.

Michigan Journal of International Law

To encourage all, but particularly U.S., lawyers to think about transformation of the law, this Article will envision a global legal regime. The purpose is more reflective than predictive. Nominally, the Article has three parts. The first Part offers an overview description of the emerging supranational legal institutions and the major forces moving them. The next Part will outline civil law legal concepts and provide background for common law readers. To further the goal of this Article, it will do so as it suggests some issues that will arise as the civil law system is incorporated into the global legal …

Promises To Keep And Miles To Go: A Look At Europe Poised Between Two Treaties, Willajeanne F. Mclean

Michigan Journal of International Law

Review of Singular Europe: Economy and Polity of the European Community After 1992 (William J. Adams ed.) and Decision-Making in the European Community: The Council Presidency and European Integration by Emil J. Kirchner