Mads Andenas

Proportionality and balancing in WTO law: a comparative perspective

This article discusses the concepts of proportionality, necessity and balancing in the World Trade Organization (WTO) legal framework. These concepts are increasingly important in the context of services and establishment regulated by the General Agreement on Trade in Services. The role and meaning of proportionality, necessity and balancing are not clear. The emerging WTO case law is analysed in this article, which adopts a comparative approach, drawing upon proportionality and balancing tests in different national and international legal orders. It discusses how these tests could influence the interpretation and application of WTO law. A main argument is that trade-offs among competing norms and values are unavoidable in WTO dispute settlement, and that the proportionality analysis could contribute to making this process more transparent, rational and predictable.

II. INTERNATIONAL COURT OF JUSTICE: QUESTIONS RELATING TO THE OBLIGATION TO EXTRADITE OR PROSECUTE (BELGIUM v SENEGAL) JUDGMENT OF 20 JULY 2012

This case 1 marks the first pronouncement by the International Court of Justice (ICJ) on the obligation to extradite or prosecute ( aut dedere aut judicare ) in international law. It is the second contentious case in which the ICJ has held the defendant country in breach of its obligations under a human rights convention. The ICJ both added to the corpus of norms it has formally recognized as peremptory norms ( jus cogens ) and also reinforced the principle that former heads of state are subject to universal jurisdiction for grave violations of international law.

Beyond Parallel Powers. EU Treaty-Making Power Post-Lisbon

This chapter examines the competence divide between the EU and the Member States in the field of the common commercial policy, and its relation to the internal division of competence relating to the common market. It considers that in light of the novelties introduced by the Treaty of Lisbon and the developments that have occurred in recent case law and practice, there seems to be an emerging trend pointing to a conceptual and practical separation of EU external and internal powers—which would mark a departure from the so-called principle of parallel powers. As is well known, the latter requires that EU internal competences be mirrored by corresponding parallel external competences. However, it is argued that it does not impose a parallel in the other direction, bringing the authors to the conclusion that the EU has the power to conclude an agreement even in areas where the corresponding internal powers belong to the Member States. The competence of the latter would not be infringed or encroached upon by the conclusion of such an agreement to the extent that the Member States retain the power to implement the agreement at the internal level. This chapter demonstrates that this trend has clearly emerged in the framework of the common commercial policy but it may in principle also apply to other EU external powers.

The Reach of Free Movement and the Gradualist Approach of the CJEU: An Introduction

The article introduces the topic of this book: the reach of free movement, and the book’s focus on what constitutes a restriction to free movement. That threshold remains low, for all freedoms. However, the discussion of what constitutes restriction continues. That is not surprising: the restriction concept is the most basic component of free movement. The article sets out the argument for different tests, discrimination, market access or de minimis thresholds. It puts forward one explanation for the CJEU’s Keck line of cases on selling arrangements and use restrictions. It is an incremental approach to forms of restrictions without impact on free movement in the Internal Market. The CJEU cannot replace this jurisprudence with a general test different from ‘restriction’, which in practice would mean that many forms of restrictions, including new ones, would not be reviewed by the CJEU. This incremental approach is in the nature of court review. Academic scholarship has criticised the Keck approach, and those defending it have not provided much in terms of analysis. Scholarship should be a force for coherence and convergence, and assist in the development of general free movement and Internal Market concepts. This chapter also provides an overview of the contributions in the book and explains how they fit into this project.

More Risks than Achievements

Regulating and supervising financial markets has never been more complex than after the 2007/2008 crisis. This is true in particular for the approach taken by the European Union and its Member States. The European Commission proposed more than forty legislative and other measures as part of the financial reforms since the 2007/2008 crisis. Critics increasingly doubt whether market players, regulators and supervisors have learned their lessons from recent crisis scenarios. For instance, some elements of the Capital Markets Union prominently featuring currently on the European legislator’s agenda seek to revive the securitisation market without fully recognising the financial stability risks it poses. The main thrust of any regulatory effort is tackling dysfunctions of financial markets. Firstly, it aims at addressing flaws revealed in former crises. Secondly, it shall prevent or at least mitigate the development of new dysfunctions and risks. The latter preventive objective has become particularly important in the context with systemic risks. Global financial markets appear to be a permanently fertile ground for new crises. Dysfunctions and risks appear on a global scale. International cooperation of states, supranational entities and institutions in the realm of financial markets is more than ever in need. This, however, is not specific to financial markets regulation and supervision. Other crucial global risks in need of a joint international regulatory response include the current refugee influx in the European Union and climate change. Such developments in recent decades show that the principle of territoriality has so far lost its predominant role as a starting point for regulatory and supervisory measures. Supranational and international cooperation efforts whether in financial markets regulation and supervision or in the realm of combatting climate change or solving the question of refugees have gained remarkable momentum. They follow the insight that the dichotomy of internal and external affairs is no longer an uncontested tenet. The interconnection of climate change and the question of refugees in a not strictly legal sense is obvious. The progressing climate change—if not mitigated sustainably—is considered to become an important cause for population displacements leading to further migration waves. The interconnection of climate change and financial markets is meanwhile also acknowledged. The G20 Financial Stability Board announced at the Paris Climate Summit in December 2015 to set up a task force on climate-related financial disclosures. From the legal perspective this requires however rethinking and reshaping traditional legal concepts in all realms of law. This is particularly true for the realm of public law such as constitutional and administrative law but also for private law. This trajectory of further Europeanization and globalisation of traditionally national realms of law might however not be taken for granted. Strong opposite political movements particularly in some Member States of the European Union challenge such developments. Such movements include considering an exit from the European Union. Other different forms of strong opposition to further supranationalization or globalisation are evidenced by nationalist and also separatist tendencies gaining strength. The political landscape and the often unpredictable shifts and turns in political disputes at European level require undivided attention when discussing the idea of further centralisation of regulatory and supervisory powers at European level and thereby any continuous erosion of the principle of territoriality.

Giudici nazionali e interpretazione evolutiva della Convenzione europea dei diritti umani. La prospettiva inglese, francese e tedesca

One of the hallmarks of the European Convention on Human Rights is its so-called dynamic evolution. Equally exemplary of the Convention system, however, is the duty of member states to make sure their internal law stays abreast of the dynamic standards of the Convention. This in recent years has engendered the question of whether national supreme courts, too, ought to interpret the Convention standards dynamically, or whether this task is the preserve of the European Court of Human Rights. Should na-tional courts, in other words, play an active role in the development of the Convention, or must they defer this development to the Court? Looking at national supreme courts in the UK, France, and Germany, this study looks at this both normatively, by way of looking at the external exigencies of the Strasbourg jurisprudence, and descriptively, by way of looking at what the national courts have in fact done. The three national supreme courts studied here have approached this in various ways. The Supreme Court UK, and its forebear the House of Lords, has interpreted Convention rights in a way very much akin to dynamic interpretation in cases in which the Strasbourg Court has signalled that the national margin of appreciation is engaged. French courts have engaged in nothing short of full-fledged dynamic interpretation, taking stock of European development and then arriving at an interpretation which goes beyond Strasbourg. The contribution of German courts have been the very strong interpretation they have given of national rights, all the while taking their cues from the development of the Convention rights, thereby arguably influencing the latter.

European Comparative Company Law: The types of business organisation

Introduction The types of business organisation discussed in the present chapter are all governed by national law. However, the laws governing public limited liability companies and the more rarely encountered hybrid forms between a public company and a limited partnership, which are sometimes regarded as public companies with personally liable directors or limited partnerships with shares, perhaps more properly called societes en commandite par actions or Kommanditgesellschaften auf Aktien , as well as private limited liability companies, have been frequently influenced by provisions of Community directives, which have required implementation in the Member States. Partnerships have not generally been made subject to such directives and the same is true of the new French business entity, the societe par actions simplifiee (SAS) as well as for the new German partnership form for use by the liberal professions, the Partnerschaftsgesellschaft . The present chapter will not contain any detailed account of the European Economic Interest Grouping (EEIG), which is governed by a Community Regulation, or the European Company, or of the less well known proposals for a European Private Company. These three matters are considered in a later chapter. The substantive part of this chapter will begin with a discussion of public limited companies, which will be followed by one on the new French entity, the societe par actions simplifiee , which is in essence a simpler form of the public (or share) company having a more flexible character than the French Societe anonyme (SA).

European Comparative Company Law: Formation of companies

Introduction The present chapter discusses the procedure for the formation of public and private limited liability companies in the United Kingdom, France, Germany, Italy, Spain, Belgium and the Netherlands. There are considerable differences between the process for the formation of public and private companies in France and Germany, and these processes will need to be more clearly differentiated from one another than in certain other cases. Because of the comparative rarity of such entities the process of formation of public companies with personally liable directors, such as the French societe en commandite par actions , the German Kommanditgellschaft auf Aktien and the Italian Societa in accomandita per azioni have not been considered in this chapter. By reason of the impact of the First Company Law Directive, which applies to both public and private companies, there are similarities in the laws of the Member States concerning the disclosure of the basic documents on formation. There are however marked differences between these laws concerning other matters. The rules regarding the share and loan capital are considered in a subsequent chapter. In all the countries considered in the present text, it is necessary to establish one or more documents which form the companys constitution. In all the relevant states the formation of the new company has to be registered in an official register. As already indicated, certain elements of the law relating to disclosure on formation of public and private companies have been harmonised by the First Company Law Directive.

Die Entwicklung des Vertragsbegriffs

Inhalt: 1. Vorbemerkung. Die interne und externe Entwicklung des Vertragsrechts – 2. Harmonisierung und Vereinheitlichung des Vertragsrechts – 3. Die Anlaufe der Harmonisierung und Vereinheitlichung und des Stand der Quellen – 4. Die “gemeinsame Basis” des Vertragsrechts und die schwierige Wahl der Juristen – 5. Der acquis communautaire des Vertragsrechts – 6. Die Definition des Vertrags-begriffs und seine Bestandteile – 7. Die hardship – Klauseln – 8. Vertragsstrafen – 9. Die zweite Ausgabe der “Europaischen Vertragsrechtsgrundsatze”– 10. Vertragsfreiheit als Verfassungswert? – 11. Literaturhinweise

Grundrechte und Privatrecht

Inhalt: 1. Vorbemerkung zu den Grundrechten – 2. Die Grundrechte in der EMRK und Privatrechtsbeziehungen – 3. Direkte Anwendung der Europaischen Konvention? – 4. Der Schutz der Menschenrechte in der Gemeinschaft – 5. Das englische Modell – 6. Die Charta der Grundrechte von Nizza – 7. Die Debatte uber die direkte Anwendung der Charta von Nizza – 8. Die Verfassung der Europaischen Union – 9. Der Jahresbericht uber die Menschenrechte – 10. Literaturhinweise