Joanna Jemielniak

Interpretation of law in the global world : from particularism to a universal approach

Capturing the Change: Universalising Tendencies in Legal Interpretation.- Capturing the Change: Universalising Tendencies in Legal Interpretation.- Legal Theory.- Transformations in Law Interpretation: Towards a Universal Approach - The Phenomenon, Causes and Symptoms.- Discourse Ethics as a Basis of the Application of Law.- Judicial Interpretation of Bilingual and Multilingual Laws: A European and Hong Kong Comparison.- The European Dual Nature: Unity/Fragmentation.- European Law.- The Universalisation of Legal Interpretation.- The Power of National Courts in Interpreting Domestic and EU Law: The Indeterminacy of Choice.- Implementation of European Regulation of the Financial Sector: Consequences for the Consumer Protection.- Joint Competence of the EC and Its Member States as a Source of Divergent Interpretations of the TRIPS Agreement at Community and National Levels.- Some Idealism About Realism. Judging Under Certainty and the Standardization of Adjudication in the EC Law.- European Criminal Law.- Pro-European Interpretation of Criminal Law Vis-a-vis the Constitutional Standards of the European Union Member States.- Linguistic Pluralism and Interpretation of European Law in the Third Pillar, Discussed with Reference to the Example of Article 54 of the Convention Implementing the Schengen Agreement.- Introducing Hermeneutic Methods in Criminal Law Interpretation in Europe.- Private Law.- Fifty Years in Five? The Brazilian Approach to the New York Convention.- Explaining Transnational Rules: Discourses and Material Conditions When Implementing the Swedish Corporate Code of Conduct.- The Translation of Transplanted Rules: The Case of the Swedish Nomination Committee.- Transnational Law, Between Ius Mercatorum and Ius Civile.

Legal Interpretation in International Commercial Arbitration

This book fills a gap in legal academic study and practice in International Commercial Arbitration (ICA) by offering an indepth analysis on legal discourse and interpretation. Written by a specialist in international business law, arbitration and legal theory, it examines the discursive framework of arbitral proceedings, through an exploration of the unique status of arbitration as a legal and semiotic phenomenon. Historical and contemporary aspects of legal discourse and interpretation are considered, as well as developments in the field of discourse analysis in ICA. A section is devoted to institutional and structural determinants of legal discourse in ICA in which ad hoc and institutional forms are examined. The book also deals with functional aspects of legal interpretation in arbitral discourse, focusing on interpretative standards, methods and considerations in decision-making in ICA. The comparative examinations of existing legal framework and case law reflect the international nature of the subject and the book will be of value to both academic and professional readers. Contents

Just Interpretation: The Status of Legal Reasoning in the Continental Legal Tradition

The following text discusses an issueof legal interpretation status in continentalsystem of law. Exploring a metaphor of theinterpretation as a translation, it emphasizesits creative aspect, which has been deniedoften in modern times. Reminding the Romanorigins of contemporary continental legalsystems, it uses historical arguments to accentthe intrinsically inventive character of legalinterpretation.

Commercial stakeholders in international economic dispute resolution and the issue of adjudicatory independence

The article discusses the problem of influence exerted by commercial actors in international trade disputes and consequences of this phenomenon for positions adopted by adjudicators. It explores the role of commercial stakeholders inasmuch as they comprise a driving force behind state action, and examines procedural options available to those stakeholders. The issue of adjudicatory independence and neutrality is considered in the context of involved industries and their interests as the non-party spiritus movens behind WTO dispute settlement processes. Related procedural aspects, such as confidentiality/transparency of proceedings and the possibilities for participation of non-party actors, are also examined. It is argued that WTO litigation is often only one track among several available to the stakeholders in the pursuit of their interests. As a consequence, the problem of forum shopping is also raised. In this vein, the standards of the WTO Appellate Body in the area under discussion are set against those of investment and commercial arbitration (as the institutions and rules designed for the latter are also being used for trade controversies, as evidenced in the Softwood Lumber LCIA arbitrations). Consequently, the problem of establishing standards of adjudicatory independence is deemed a significant factor in strategic selection of the most advantageous forum for dispute resolution.

The welfare implications of precedent in international law

There is no formally binding precedent in international law. The rest is in dispute. Legal scholars have long suspected that despite the widely agreed-upon fact that international law denies the formal authority of precedent, something akin to de facto stare decisis or effectively binding precedent operates nonetheless. International trade law is no exception: legal texts and judicial opinions explicitly deny that past decisions have precedential authority, yet there is a growing sense that the significance of precedent has steadily risen with the trade regime’s increased legalization, as marked by the passage from the General Agreement on Tariffs and Trade (GATT) to the World Trade Organization (WTO), and the introduction of the Appellate Body. After reviewing this debate, this chapter proposes some empirical strategies to assess the claim that precedent in international law is effectively binding. The common premise behind these approaches is that if precedent is binding on courts, then this should be reflected in other actors’ behaviour. I show how recent findings that use the entire universe of WTO disputes and the legal citations between them suggest that WTO member governments systematically invest in precedent. Countries thus behave as if precedent were binding; specifically, they appear to file some disputes for precedential rather than for commercial gains. Such “test cases”, which tend to involve small stakes, then become highly likely to be cited, especially by the country who initiated the first dispute. In other words, governments strategically bet that courts will be swayed by past precedent, even as the formal rules explicitly deny their

Introduction Capturing the Change: Universalising Tendencies in Legal Interpretation

International and supranational integration on the European continent, as well as the harmonisation of the rules of international trade and the accompanying development and global popularity of the resolution of commercial disputes through arbitration, constantly exerts a considerable influence on modern legal systems. The sources of each of these phenomena are different, and their action is dissimilar. Each can be described as reaching either from the top to the bottom, through the direct involvement of interested states and consequently affecting their internal legal systems (international and supranational integration; harmonisation of trade regulations through public international law instruments), or bottom-up, as a result of activity by private parties, leading to the achievement of uniform practices and standards (arbitration, lex mercatoria). Nonetheless, they both enrich national legal cultures and contribute to transgressing the limits of national (local) particularisms in creating, interpreting and applying the law.

Paradise Lost: Impartiality of an Arbitrator

The chapter discusses the demand of impartiality from an arbitrator in the context of his or her role as compared to the role of a judge. Although both the arbitrator and the judge pursue the goal of impartiality, their ways to achieve it differ significantly.