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11. Gregory Shaffer (ed.). Transnational Legal Ordering and State Change , Terence C. Halliday, Gregory Shaffer (eds). Transnational Legal Orders

Author:
Lars Viellechner
Publication Date:
07-2015
Content Type:
Journal Article
Abstract:
The two collections fill a major gap in law and globalization scholarship. In rich detail, they supply empirical material on the current transformation of law that has long been sought after. The studies in the first volume stand out in particular as they employ methods of empirical social research and focus on change in non-Western countries. From this material, other researchers will greatly benefit in the years to come. At the same time, the two volumes add a highly convincing conceptual approach to the field. Indeed, their guiding category of the transnational is very promising in contrast to many others proposed for similar purposes. As the editors properly assert, it best expresses that most patterns of order neither reach out globally nor circumvent the state. Indeed, the recursive interaction of different levels of order appears to be one of the dominating modes of law production today, which is well captured by the term. Nevertheless, some obscurity and doubt about the conceptions of transnational legal ordering and order remain.
Topic:
Globalization, International Law, Sociology, and Legal Theory
Political Geography:
Europe, Asia, and North America

12. Bridging Comparative and International Law: Amicus Curiae Participation as a Vertical Legal Transplant

Author:
Anna Dolidze
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
Legal transplants scholarship has thoroughly examined the transnational diffusion of legal institutions. Although Article 38 of the Statute of the International Court of Justice acknowledges that international law draws upon domestic legal systems, the exchange of legal institutions between states and international law has yet to receive similar treatment. This article highlights the process of vertical diffusion – that is, the borrowing of legal institutions between the nation-state and international law. Vertical diffusion takes place in two forms: downward and upward diffusion. Scholarship on the internalization and vernacularization of international law has highlighted the process of downward diffusion. This article offers a theory of internationalization of law and the emergence of internationalized legal transplants. It draws on a study of the internationalization of the amicus curiae participation procedure from the United Kingdom to the European Court of Human Rights. Three main conditions must be present for internationalization: the institution’s structural transformation that results in a law-making opportunity, norm entrepreneurs, and access to the decision-making body. The study of internationalized legal transplants is important to have a more fine-grained perspective on the making of international law. The evidence of the diffusion of legal institutions between domestic law and international law also creates a bridge between international law and comparative law scholarship.
Topic:
Human Rights, International Law, Legal Theory, and Courts
Political Geography:
United Kingdom, Europe, and France

13. The ‘Bonn Powers’ of the High Representative in Bosnia Herzegovina: Tracing a Legal Figment

Author:
Tim Banning
Publication Date:
08-2015
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The article traces the legal basis of the so-called ‘Bonn Powers’ that are claimed by the Office of the High Representative (OHR) in Bosnia and Herzegovina (BiH) as the basis for its extensive legislative, judicative, and executive decisions. The OHR’s presence in BiH offers a very controversial example of how international institutions may exercise international public authority. The OHR has attracted far-reaching criticism and it has in fact been argued that its practice of adopting binding decisions runs contra to the main purpose of the civilian international presence in BiH. The contribution offers an analysis that substantiates such criticism on legal grounds. It discusses exemplary OHR decisions that reach far into the legislative, the executive, and the judicial domain of BiH and analyses possible legal sources for the broad powers claimed by the OHR. It explores the limits of the OHR’s original mandate in light of the Vienna Convention on the Law of Treaties and it looks at the implied powers doctrine as a basis for the OHR’s claims. It also considers a conferral of the ‘Bonn Powers’ on behalf of the United Nations Security Council. The article concludes that the ‘Bonn Powers’ do not qualify as a legal power and that their existence is merely a powerful, but delusive legal fiction.
Topic:
Diplomacy, International Cooperation, Legal Theory, UN Security Council, and Authority
Political Geography:
Europe and Bosnia and Herzegovina

14. Alternative Investment Regimes for Direct Foreign and Domestic Investments in Russian Subsoil

Author:
Andrei Konoplyanik
Publication Date:
01-2013
Content Type:
Working Paper
Institution:
The Harriman Institute
Abstract:
This paper examines the evolution of the Russian investment regime in the subsoil in its both key – legal and tax - components starting from the very beginning of post-Soviet Russia in early 1990s up to the present day. We will discuss what are the prospects of its further development on a “slightly different” (or alternative) basis compared to the one that exists today.
Topic:
Foreign Direct Investment, Legal Theory, Tax Systems, and Investment
Political Geography:
Russia, Europe, and Eastern Europe

15. EU Privacy Regulation: Implications for U.S. and EI Law Enforcement

Author:
Carlton Forbes and Jacob Victor
Publication Date:
12-2012
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
In January 2012, the European Commission released drafts of two new pieces of legislation that would provide more stringent and more uniform regulation to the processing of electronic data relating to EU citizens. The proposed General Data Protection Regulation would govern the processing of data for general purposes, while the proposed Criminal Justice Directive would govern data processed in the specific context of criminal investigations. The Data Protection Regulation has proven controversial because of the significant number of requirements it imposes on private data processors, including requirements that the processor notify a consumer when her data is shared with a third party, and requirements that processors respect a number of new individual rights, such as the right of a consumer to request that her data be deleted (a.k.a. “the right to be forgotten”). Furthermore, the Regulation would mandate that many non-EU corporations would need to comply with its requirements when processing the data of EU citizens, or face harsh penalties. This memo summarizes the existing EU data protection regime, analyzes the changes proposed by the new Data Protection Regulation and Criminal Justice Directive, and explores the implications of this new legislation for U.S. criminal and national security investigations. We arrive at three main conclusions
Topic:
Law Enforcement, Law, European Union, Regulation, and Legal Theory
Political Geography:
Europe, North America, and United States of America

16. Competition Law and Policy in the European Union

Author:
Michael Wise
Publication Date:
10-2007
Content Type:
Working Paper
Institution:
The Organisation for Economic Co-operation and Development
Abstract:
Competition policy played a central role in the development of the EU and its institutions. The European Commission, supported by the European courts, developed the framework for competition policy in Europe. This framework has been built since the Treaty of Rome in 1957 on a foundation of promoting market opening while strengthening the institutions of the European Community. The competition policy of the European Community is now in transition toward a basis in market-centered economic considerations, as well as on application through the now-extensive network of nationallevel authorities. The “modernisation” reforms of the enforcement process became effective in May 2004, along with changes in the control of mergers, and the Commission has been considering revisions to its policies about other topics, notably abuse of dominance and state aid. As the Member States adapt their substantive rules to those of the Community, the roles of the European Commission, the national competition agencies and the courts are changing. Co-ordination of enforcement among many agencies in the European Community, particularly concerning applications for leniency as part of cartel investigations, is increasingly important. The Commission moved to strengthen its capacity for economic analysis and to correct weaknesses in its decision process that had been revealed in critical court decisions. The challenge to this system, well adapted for administrative application, is to produce results that are convincing to the courts while maintaining policy consistency in a system of decentralised enforcement.
Topic:
European Union, Legal Theory, Decentralization, and Strategic Competition
Political Geography:
Europe