Gabriel Moens

Commercial Law of the European Union

Foreword.- Preface.- Acknowledgements.- Abbreviations.- Table of Cases.- Table of EU Founding Treaties.- Table of International Agreements.- Table of Legislation.- Chapter 1: The Political Institutions of the European Union.- Chapter 2: Free Movement of Goods.- Chapter 3: Free Movement of Persons and Services.- Chapter 4: Free Movement of Capital.- Chapter 5: Commercial Law and Policy.- Chapter 6: Competition Law.- Chapter 7: Removal of Taxation Barriers to Trade.- Chapter 8: Public Procurement.- Chapter 9: Industrial and Commercial Property Rights.- Chapter 10: Social Dimension of the European Union.- Chapter 11: Judicial Review and the European Court of Justice.- Chapter 12: The Effect of EU Law upon National Law.- Chapter 13: The European Union and the World Trading System.- Appendix A: Problem Questions.- Appendix B: Table of Equivalence. EEC Treaty version - Treaty of Amsterdam version.- Appendix C: Table of Equivalence. Treaty of Amsterdam version - Treaty of Lisbon version.- Index

An Australian Perspective on Arbitration and Dispute Resolution in the Resources Sector

The resources sector, in general, but in particular in Australia, contributes substantially to the national economy. This introductory chapter discusses the origins of this collection of essays and provides readers with the context in which dispute resolution in the resources sector takes place. It also provides an overview of the themes discussed in each chapter of this book. These chapters deal with arbitration, mediation and adjudication in the resources sector.

Domestic Court Proceedings Relating to International Commercial Arbitration in the Resources Sector

International commercial arbitrations often lead to related proceedings in domestic courts. This chapter provides some recent examples of domestic court cases relating to international commercial arbitrations in the resources sector. These cases have raised issues concerning the interpretation of the Model Law, arbitration under bilateral investment treaties, stay of proceedings, discovery under United States federal law and the enforcement of awards under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. These cases were decided by courts in Australia, Canada, the United States, the UK and Singapore.

Subsidiarity as Judicial and Legislative Review Principles in the European Union

The founding Treaties of the European Union make clear that subsidiarity is a judicially enforceable legal principle. However, the case law of the Court of Justice reveals that the enforcement of subsidiarity as a judicial principle has been ineffective. The Court has applied a very weak standard of review for both substantive and procedural compliance with the subsidiarity principle. By far the most significant application of the subsidiarity principle is its consideration as part of the EU legislative process. A Member State legislature may issue a reasoned opinion regarding subsidiarity aspects of a proposal. These reasoned opinions may trigger the yellow card procedure, forcing the Commission to review its proposal, or the orange card procedure, where the Parliament or Council can block the proposal. These procedures have some potential as legislative safeguards of subsidiarity: in 2013 the Commission withdrew a legislative proposal after the yellow card procedure was activated.

The Validity of Henry VIII Clauses in Australian Federal Legislation

The Australian High Court has stated that the federal Parliament may not abdicate its legislative powers. However, the Courts concept of abdcation only prohibits an abdication or renunciation of the power of Parliament to repeal or amend a statute. This concept of abdication is so narrow that it has not proved to be a meaningful limitation in practice. This paper argues that the Court should modify its abdication doctrine so that a delegation of power to amend statute law by regulation would constitute an abdication of legislative power. Subordinate legislation must at least be subordinate to primary legislation.

Can a Good Mediator also be a Good Arbitrator? Reflections on the role of Mediators and Arbitrators

Abstract This Article considers whether a good mediator can also be a good arbitrator. It provides examples of domestic legislation which allow mediators to serve as arbitrators, even in the same dispute. The requirements of natural justice, which are integral to the arbitration process, are largely ineffective in mediation proceedings. It is argued that, because of the ineffectiveness of the application of the rules of natural justice in mediation proceedings, the roles of mediators and arbitrators are distinct and incompatible.