Comparative Legal Cultural Analyses of International Economic Law: A New Methodological Approach

Colin B. Picker 

University of New South Wales (UNSW) - Faculty of Law

January 1, 2013

1 Chinese J. Comp. L. 21-48 (2013) 

Abstract:    
The effective development and operation of the law faces many obstacles. Among the more intractable yet hidden barriers to the law are legal cultural disconnects and discontinuities. These occur when opposing legal cultural characteristics from different legal cultures are forced to interact as part of the implementation of the law across two different legal cultures. That conflictual interaction can impede or block the success of that law. While present in domestic legal systems, those conflicts are more likely and the conflicts may be deeper between the many different legal cultures involved in the international legal order. Identification of such legal cultural disconnects and discontinuities is the first step towards developing strategies to ameliorate potential conflicts between opposing legal cultural characteristics. That identification requires examination of the relevant legal systems with legal culture in mind—a legal cultural analysis. But, that methodology is rarely employed. To the extent we do see legal cultural analyses, they are applied almost exclusively in the domestic arena. When it is applied across legal systems it becomes a part of comparative law methodology. This merger of comparative law and legal cultural approaches is unusual, indeed almost unheard of in the international legal arena. This article explores that methodology, to argue that it is possible and valuable.


Keywords: international economic law; IEL; culture; comparative; trade; investment

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2641416

EU Law without the Rule of Law:

Is the Veneration of Autonomy Worth it?

Dimitry Kochenov 

Woodrow Wilson School; University of Groningen - Faculty of Law

August 12, 2015

34 YEL 2015 (forthcoming) 

Abstract:      

This is a critical analysis of the Rule of Law in the EU, concluding that the Union is not driven by the Rule of Law as an institutional ideal. Instead, the Union deploys the “Rule of Law”, viewed to a large extent through the lens of the autonomy of the EU legal order, to shield itself from potential internal and external contestation. This is precisely the contrary to what the classical understanding of the Rule of Law would imply. The Union thus suffers, it is argued, as a result of misrepresenting legality at the EU level, selling it to friendly observers under the label of the “Rule of Law”, while compelling reasons exist to distinguish the two. To do so, Gianluigi Palombella’s vision of the Rule of Law as an institutional ideal is employed, implying that the law – gubernaculum – should always be controlled by other law – jurisdictio – lying outwith the sovereign’s reach. Unable to boast any jurisdictio expressly intended as the legal aspect of positive law beyond the internal market logic programmed into the Treaties, the EU emerges as a somewhat rudimentary legal system, with no strong guarantees of legal non-domination extending beyond the Treaty text. The paper demonstrates the clear negative consequences of the prevalent deficient understanding of the Rule of Law for both constitutional levels: the EU and the Member States. One of the curious outcomes of the current reading of the Rule of Law in the EU is that this principle can be presented as demanding to trump the values of the Treaties as well as of the national constitutions in the name of upholding formal organisational considerations seemingly underpinning the EU legal system, resulting in anarchical confusion.

Keywords: EU Law, Rule of Law, Autonomy, Human Rights, ECHR, Loyalty, Article 2 TEU, Opinion 2/13, CJEU, democracy

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2642689

Call for papers "What budget, resources, fiscal and borrowing powers for the EU?"

Call for papers on “What budget, resources, fiscal and borrowing powers for the EU?”, launched within  the Jean Monnet Network MoreEU (http://www.sssup.it/moreeu), coordinated by Scuola Sant'Anna, Pisa.

http://www.sssup.it/UploadDocs/23890_MoreEU_Florence_conference.pdf

Jean Claude Piris on Brexit, CSF-SSSUP Working Paper 1/1025

Which Options Would Be Available to the United Kingdom in Case of a Withdrawal from the EU?

Jean Claude Piris 

CSF-SSSUP Working Paper No 1/2015 

Abstract:    
Before the 8th of May 2015 parliamentary elections, the British Prime Minister, David Cameron, announced the holding of a referendum on the United Kingdom (UK)'s membership of the European Union (EU) to be held before the end of 2017, should his political party remain in power. As the elections gave a majority in the House of Commons to the Conservative Party, Mr Cameron confirmed that the referendum will be organised. At the date of writing, the Government's bill has already been approved and the question proposed to the Parliament is: "Should the United Kingdom remain a member of the European Union?" Moreover, the referendum could take place earlier than planned, possibly before the summer of 2016.

Paradoxically, the risk of a withdrawal is appearing at a time when the EU has been pushed by its Member States to evolve in directions which correspond to many of the European policy's objectives of the UK: the EU has been enlarged to many new Member States, without much strengthening of its institutions; there is more flexibility for Member States to participate or not in some policies; in particular, the UK managed to keep access to the internal market, despite getting several permanent opt-outs on other major policies (the euro, Schengen, criminal justice and police cooperation); national control of the Member States on foreign and defence policies has been carefully preserved; the UK has been able to keep (with others) its budget rebate; the EU is liberalising external trade; the Commission and the Council control the respect of the principle of subsidiarity better than they did in the past; finally, the Lisbon Treaty, which does not contain any federalist symbol, "even marks a halt to the hopes of the "federalists," and gives some powers to national Parliaments.

These results have not been reached only because of the UK, but the UK has certainly been, in particular because of the high quality of the British diplomats and senior civil servants, a very influential Member State in shaping the EU as it is today.

Thus, the possibility that the UK might withdraw from the EU, after more than 40 years of membership, still looks unreal to many people, but it has become less unrealistic.



Keywords: Brexit, UK, EU, Referendum, EU law

Full paper available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2634655

New Working Paper Series Centre for Studies on Federalism and Scuola Sant'Anna, Pisa

The Research Programme

The Scuola Sant’Anna di Pisa and the Centre for Studies on Federalism launched a new Research Programme on the issues related to federalism and global governance in a broad perspective but with a special focus on European law and politics. The Programme combines interactive activities (seminars and conferences) and a new Working Paper series.


Various stakeholders will be involved throughout the programme enhancing the academic approach with fresh and innovative inputs and views. The new Paper series will host contributions from both young academics and, advanced and well-established researchers as well as experts and professionals. The aim of the series is not only to enrich the academic debate but also to elaborate ideas and visions for policy-makers. The Programme will benefit from the broad experience of both the SSSUP and the CSF and it will continue to value a multidisciplinary approach attracting contributions from across an array of disciplines, including political science, international relations, international political economy, comparative, international and European law, political theory. Papers submitted will be peer reviewed and selected for publication according to their academic quality and their fit with the specific thematic focus of the Series.


This is a project made possible thanks to the financial support offered by Centre for Studies on Federalism and the Compagnia San Paolo, Torino. It is - above all - a ‘space’ where both young and experienced scholars can share a space and submit papers research through the supply of easily- accessible working papers.



Guidelines for submission

All working papers submitted undergo a double blind peer-review process. This project responds to a multi-disciplinary and pluralist perspective. This also reflects the spirit of DIRPOLIS (Law, Politics and Development) Institute.
The Working Paper Series does not adopt a particular style, and papers may be submitted in any recognised style consistently applied. The papers are published electronically and are available online or through email distribution. Published papers can still be submitted for reviews and journals.

More info at the following link: http://www.sssup.it/csf-sssup_workinpaperseries

The Singapore Symposium in Legal Theory 2015: Talk by Prof Martin Krygier

The Singapore Symposium in Legal Theory 2015:

Talk by Prof Martin Krygier

Full video here: https://www.youtube.com/watch?v=2J1YD7Kjpl0

International Society of Public Law (ICON·S) 2015 Conference on Public Law in an Uncertain World

Wednesday, July 1, 2015, 1:45-5:00 p.m.

Welcome and Opening remarks by Dean Trevor W. Morrison and University Professor Joseph H.H. Weiler

Keynote Address

“An Uncertain World: Charting Citizenship’s New Legal Terrain” by Ayelet Shachar, Professor of Law and Political Science at University of Toronto

Plenary Session on Secession and Federation

Speakers:

Neil Walker, Sidley Austin-Robert D. McLean Visiting Professor of Law, Yale Law

Vicki Jackson, Thurgood Marshall Professor of Constitutional Law, Harvard Law School

Chair: Gráinne de Burca, Florence Ellinwood Allen Professor of Law, NYU School of Law

Discussant: Sabino Cassese, emeritus justice of the Italian Constitutional Court

http://www.law.nyu.edu/livestream