Autumn/Winter 2012/2013

Autumn/Winter 2012/2013 - Volume 5 - Issue 2

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Social dialogue, Laval-style

By: Alessandra Asteriti   UK - Download PDF Version Download pdf (UK)

The article provides an analysis of the Laval Judgment in light of Habermas’ theory of discursive practice and compares the European social model and the Swedish system of collective agreements in light of this theory. In this context, the article argues, the comprehensive dismissal by the European Court of the carefully constructed and balanced Swedish system of social dialogue between management and labour is truly the most disturbing aspect of this controversial judgment. For all the supposed importance placed on discursive practices and social dialogue for the European social model, when confronted with the Swedish system of social dialogue, the Court retreats in the familiar territory of hard law and statutory obligations. In doing so, it wilfully misunderstands the function of collective bargaining, by effectively decoupling its process from its function, and leaving social dialogue with the hollow role of a deliberative practice devoid of any finality.

The Application of Article 103 of the United Nations Charter in the European Courts: The Quest for Regime Compatibility on Fundamental Rights

By: Kushtrim Istrefi   UK - Download PDF Version Download pdf (UK)

This contribution identifies and examines three approaches of the European courts to application of certain United Nations Security Council (SC) resolutions that trigger concerns for violations of fundamental rights in their respective legal orders. This analysis argues that a balance between the United Nations (UN) superior norm and preservation of fundamental rights should be aimed outside the monist and dualist constraints of interpretation, where the courts either obey art 103 of the UN Charter trumping fundamental rights (subordination approach), or detach from the UN system in order to safeguard fundamental rights of their autonomous regimes (detachment approach). This submission suggests that further exploration of norms and techniques of treaty interpretation found in the Al-Jedda and Nada cases of the European Court of Human Rights (ECtHR), coupled with constructive contribution of scholars provide tools allowing regime compatibility and harmonization that disturb neither coherence nor autonomy of the respective regimes (harmonization approach) in the world of legal plurality.

The Scope and the Legal Limits of the ‘Immigration Federalism’: Some Comparative Remarks from the American, Belgian and the Italian Experiences

By: Davide Strazzari   UK - Download PDF Version Download pdf (UK)

Traditionally, immigration has generally being conceived of as a matter to be dealt with by the national legislator. However, immigration federalism - that is, the regulatory role that sub-national territorial units, enjoying legislative powers, experience with regard to issues related to immigration policy - has become a very sensitive issue in many countries. By focussing on the comparison of three legal systems (the USA, Belgium and Italy), this article highlights three main issues challenged by the emergence of immigration federalism: the division of powers, access to welfare and cultural-linguistic integration in the context of multinational states.

Modelling the Coase Theorem

By: F.E. Guerra-Pujol   UK - Download PDF Version Download pdf (UK)

Traditionally, immigration has generally being conceived of as a matter to be dealt with by the national legislator. However, immigration federalism - that is, the regulatory role that sub-national territorial units, enjoying legislative powers, experience with regard to issues related to immigration policy - has become a very sensitive issue in many countries.By focussing on the comparison of three legal systems (the USA, Belgium and Italy), this article highlights three main issues challenged by the emergence of immigration federalism: the division of powers, access to welfare and cultural-linguistic integration in the context of multinational states.

Editorial


Editorial

By: Tiago Andreotti   UK - Download PDF Version Download pdf (UK)

Young Scholar's Lab


Putting a Leash on the Court of Justice? Preconceptions in National Methodology v Effet Utile as a Meta‐Rule

By: Stefan Mayr   UK - Download PDF Version Download pdf (UK)

The Court of Justice has time and again come under criticism for alleged methodological shortcomings and its dynamic approach towards interpretation. But who determines the boundaries between interpretation and admissible or inadmissible (ultra vires) creation of law? And where does the dividing line lie, given that the Member States have by and large accepted the most obvious creations of the Court of Justice (e.g. direct effect of directives, state liability etc.)? Any answer depends on our understanding of (a) the concept of interpretation as such and (b) the principle of effet utile – in a way the Court’s interpretive leitmotif and as I will argue, a meta-rule of interpretation (and as such a small contribution to a genuine European methodology).

The Evolution of Normative Legal Scholarship: The Case of Copyright Discourse

By: Patrick Goold   UK - Download PDF Version Download pdf (UK)

Legal scholarship’s central function is to provide normative advice about the law. However, some academics have challenged the importance of such scholarship. Pierre Schlag argues that this function of legal scholarship is “unravelling” because judges and legislators do not listen to academic opinions. This unravelling would seem to be present in the field of copyright law where numerous instances suggest that normative legal scholarship is ignored. However, copyright scholarship has evolved to overcome this problem. Today the most influential copyright scholarship comes not in law reviews or similar traditional academic outlets, but through publicly oriented books and social media. Rather than aim normative advice to lawmakers, scholars give their advice to the public generally. The public then hold the lawmakers accountable for enacting bad laws. In this way, academics can retain their position as normative advice givers.

Necessity Killed the GATT - Art XX GATT and the Misleading Rhetoric about ‘Weighing and Balancing’

By: Filippo Fontanelli   UK - Download PDF Version Download pdf (UK)

Art XX GATT, listing the policy grounds available to WTO Members that wish to deviate from their GATT obligations, makes some of them conditional on a requirement of necessity in relation to the pursued interest. In their reports, Panels and the AB have developed the analysis of this element in two separate but interlaced tests: one whereby they allegedly perform an exercise of ‘weighing and balancing’ of the interests involved (a value-judgment), the other ascertaining the trade-restrictiveness of the measures challenged (an optimization analysis). It is submitted that an appraisal of the case-law demonstrates that this distinction is artificial, and most importantly, that no real balancing is ever performed - or in any event, relied on - to determine the outcome of a dispute (Claim 1). However, a diffuse trend of ‘strict proportionality’ is discernible in the case-law, not so much within the ‘weigh and balance’ analysis, but within the trade-restrictiveness test. The latter, therefore, is arguably less value-neutral than the quasi-judicial bodies would claim it to be, and then WTO Members tend to understand, when construing the necessity requirement (Claim 2).





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