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Can the democratic constitutions of Hungary and Poland survive an autocratic majority? Hardly. Hungary and Poland seem to be lost for liberal and democratic constitutionalism. At least for the time being, the next question is how democratic constitutionalism can prevent an autocratic majority. The task is to make it difficult for an autocratic parliamentary majority to capture the institutions of critique and control of government and to undermine separation of powers.
On October 7th, general elections were held in Bosnia and Herzegovina. Its Constitution was meant to be an interim solution, setting up a complex structure of division of power between the three major ethnic groups leading to political paralysis. Constitutional reform is thus a pressing issue but the recent elections appear to reinforce the deadlock situation instead of paving the way for much needed change.
The illiberal turn in Europe has many facets. Of particular concern are Member States in which ruling majorities uproot the independence of the judiciary. For reasons well described in the Verfassungsblog, the current focus is on Poland. Since the Polish development is emblematic for a broader trend, more is at stake than the rule of law in that Member State alone (as if that were not enough). If the Polish emblematic development is not resisted, illiberal democracies might start co-defining the European constitutional order, in particular, its rule of law-value in Article 2 TEU. Accordingly, the conventional liberal self-understanding of Europe could easily erode, with tremendous implications.
Bitcoin stands like no other cryptocurrency for the profound transformation of financial markets in the digital economy. While the last few months saw the free trade in goods struggle against trends towards protectionism, cryptocurrencies seemed to tear down one border after the other – physical, geographic, and legal ones alike. A libertarian’s wet dream. Blockchain presents itself as a fortress against state intervention, for whatever purpose. Finally, a technological, market-based solution would put an end to the problem of monetary policy, payment transactions, and make whole chunks of government regulation superfluous. ...
Legal pluralism as a pre-modern and well-known phenomenon appeared to be domesticated by the "modern state" with its sovereign position as creator of law. Today the phenomenon is back. Today's lawyers struggle not only with multiple levels of normativity (national law, European law, international law, legal networks without a state) but also with the cultural diversities of interpretation and practice.
In the past 30 years, the end of the Cold War and the breakdown of the modernist frame of politics have promoted the historical turn of international law. A non-Eurocentric narrative of international law is needed not only to help it go beyond the geographical and conceptual self-justification, but also to open itself to other normative orders. This presents an intellectual and normative challenge to legal historians, who increasingly explore the normative dialogue and competition in interstitial areas, such as South and Southeast Asia in their existence between the Islamic, Sinocentric and European orders. It is this issue and this important era of globalisation that Clara Kemme’s book examines roughly over the period from 1500 to 1900, in particular how the key concepts of tribute and treaty were understood through diplomatic ideas and practices in South and SoutheastAsia, how the treaty system as a product of international law became global and why it prevailed over other systems of order (2). ...
"In the beginning all the World was America" reads the iconic opening of § 49 in John Locke’s Second Treatise of Government. Beyond mentioning "America", Locke’s theory and the story told by Juan Pablo Scarfi in The Hidden History of International Law in the Americas share an unsettling resemblance. The expansion of international law and the deepening of legal techniques for the purposes of US hegemony in the American hemisphere, the invasion of politics by the language of science, the double standard, one of real military and monetary interventions, and another of (usually) suave diplomatic correspondence about the advantages of pan-Americanism, all are part and parcel of The Hidden History. Moreover, around the mid-20th century the pattern extended around the entire globe. Therefore, as Scarfi elegantly suggests, the interventions in Latin America by the newly established US empire in the early 20th century had the nature of laboratory experiments. In the end, all the world was America again, but with a good number more of international organizations, institutions devoted to the scientific study of international law, and international legal norms and principles. This image, of course, simplifies tremendously the complex history of the past century. However, it summarizes the message of Scarfi’s book. ...
We live in the age of commentaries. When I was a law student at Heidelberg University and wrote a take-home exam on private law in the mid-1990s, I had to survey eight commentaries on the German Civil Code. Today, students have to check twice as many commentaries, among them whoppers like the Historical-Critical Commentary and the Beck "Grand" Online-Commentary, the latter still in progress with more than 400 individual contributors – not paragraphs. Publishers and editors must use all kinds of incentives to lure new authors onto their juridical treadmills. Nobody needs an oracle to predict that most of the commentaries without a digital interface will soon vanish – sometimes to the relief of their authors, who are deeply frustrated by the lack of citations in textbooks and court cases. There is no need for the Club of Rome to issue a paper on the limits of legal commentaries. Despite all this intertextual Darwinism, the commentaries call to mind a kind of legal oasis with plenty of resources. The desert beyond buries the few remaining "grand" textbooks that traditionally developed legal principles and legal system. The commentaries can provide no guidance on these points. Their focus lies on practical details, not overarching structures. It is no wonder that mainstream contemporary German legal writing on private law is unable to master the overwhelming number of changes in the German Civil Code introduced over the last two decades. ...
The conquista of the Americas confronted Spanish jurists educated in the legal concepts of the European medieval tradition with a different reality, pushing them to develop modern legal concepts on the basis of the European ius commune tradition. Traditionally, the School of Salamanca, theologians and jurists centred around the Dominican Francisco de Vitoria are credited with this intellectual renovation of moral and legal thought. However, the role earlier authors played in the process is still insufficiently researched. The Castilian crown jurist Juan López de Palacios Rubios is one of the most interesting authors of the early phase in the conquest of the Americas. His treatise about the Spanish dominion in the Americas is a central text that shows how at the beginning of the 16th century the knowledge and the experiences of the European past were applied to the American present and, in the process, were shaped into modern ideas.
There is a consensus among historians that the School of Salamanca brought something new to the development of early modern European legal thinking and methodology. Francisco de Vitoria is considered, not only by modern researchers but also by his contemporaries (from Melchor Cano onward), the origin of the school and its founding figure. He is famously claimed to have introduced Thomas Aquinas’s Summa theologiae as the fundamental text for theological lectures at the University of Salamanca and so prepared the ground for the upsurge of academic activity and intellectual brilliance of late or modern scholasticism at Spanish, Portuguese, and American universities. Regardless of the differences in the assessments of the late scholastics’ political stance (whether viewed as trailblazers on the way to human rights and a modern law of nations or as conservative imperialists, whose sole intent was the perpetuation and legitimation of the Spanish rule in the Americas), Vitoria and his followers are seen as intellectual innovators, opening the restrictive traditions of medieval scholarship to the modern exigencies of a globalized world. This almost universal image has recently been called into question, with Jacob Schmutz showing that Vitoria was not quite the first to introduce Aquinas’s Summa into the teaching of Salamanca’s theological faculty, and Thomas Duve recently asking outright: Did everything actually start with Francisco de Vitoria? ...
Introduction: Convivencia(s)
(2018)
How can members of different cultures, religions, and confessions live together peacefully? What rules of coexistence, interaction, and conflict regulation have these communities developed to enable this cohabitation? What role does law play in this? – This is not the first time such questions have been discussed. These questions gain a specific poignancy when it’s not just about taste or cultural preferences but rather concerns an existential dimension like the religious sphere: for instance, when the immanent is observed from the perspective of transcendence. Even the smallest event can lead to major conflicts. ...
The end of an empire is almost always marked with legal acts, which often serve as the founding documents of a new order. There the beginning and the end converge. For example, the constitutional documents of Hispanic America after 1810 simultaneously heralded the dawn of new states and the twilight of the Spanish Empire. Since constitutions and the state institutions they help to build are deeply imbued with symbolic power, they are an important element in constructing, perhaps even in "inventing", nations. They provide raw materials for our regimes of memory and divide history into a "before" and an "after", through which they also exert a stabilising effect. ...
The Dodd Frank Act of 2010 (DFA) was the legislative response by the US Government to the Global Financial Crisis of 2007. DFA’s rescission of Rule 436 (g) of the Securities Act of 1933 - the exemption from liability clause - was the response to the post-crisis perception that credit rating agencies were insufficiently constrained by reputational risk considerations and consistently failed to provide high quality and accurate credit ratings as a consequence of the immunity they enjoyed and the regulatory reliance placed on ratings, as well as the conflicts of interest that they faced. This paper investigates whether the market failure event that occurred in the Asset Backed Securities market immediately after DFA was signed into law on July 21, 2010 was due to real economic concerns held by rating agencies about operating under a liability regime or whether it was merely an act of brinkmanship on the part of the rating agencies. The paper also predominantly examines US case law to identify the dilution of the freedom of speech defence in state courts, the conflict of interest issues and the legal challenges faced by plaintiffs when bringing a lawsuit against credit rating agencies, and proposes a novel co-pay and capped liability model to address the concerns of both credit rating agencies and investors.
A sound and well-functioning legal system will encourage growth in investment and create opportunities for investors. Trademarks as part of intellectual property play an important role in the future development of a country. A mark or symbol is needed in order to give products and services identity and to distinguish them and their qualities from identical or similar products and services of a competitor.
This research studies, examines and analyses the degree, nature and function of trademark protection within the legal system of Afghanistan and compare them with the Paris, Madrid and TRIPs agreements. It has been divided into four chapters: Chapter one provides general information and an overview of the current legal system of Afghanistan. Chapter two studies and analyses international agreements pertaining to the legal protection of trademark. It also critically assesses the ATML compatibility with these agreements: and answers the research question of to what extent the ATML provisions are compatible with them. Chapter three provides information on the different purposes of trademarks from a development perspective and compares the purposes provided by the ATML. Finally, chapter four assesses and examines the acquisition, assignment and termination of trademarks. The conclusions and findings of the thesis are the final section of this research.
Afghanistan, as a transitioning economy, has not developed a solid legal and practical foundation for providing comprehensive protection mechanisms for trademarks as have been articulated in developed countries and international agreements. Accordingly, the Afghan government has not entirely integrated these needs into its legal system and there are some inconsistencies of the ATML with these agreements.
One more challenge is the lack of appropriate legal institutions for issuing, managing, administering and protecting of trademarks. The establishment of a well-functioning administrative institution will serve to fulfil the objectives of the laws. Therefore, the CBR office holds the administrative responsibility for processing the registration of trademarks.
However, the methods and facilities of the CBR office remain outdated, and the office does not have the capacity to provide applicants with up-to-date administrative and technical facilities.
Therefore, legal protection of trademark in Afghanistan is linked not only to the existence of a well functioning of laws, regulations, clear procedures, mechanism and guidelines but also to an efficient and well-functioning administrative office.
The purpose of this thesis is to achieve two highly interconnected yet distinct tasks. On the one hand, the thesis explains how foreign investment insurance works by focusing on the law governing the relationships between involved actors. On the other hand, it provides a critique of the operation of foreign investment insurance as an investment protection instrument by mainly drawing on critical studies of the investment protection regime.
The main question this thesis attempts to answer is how foreign investment insurance works. I construe foreign investment insurance as a typical insurance product and focus on the operation of insurance arrangements from a legal perspective. Ideas about how insurance should be deployed in any given social, political or economic context are instrumental in the development of insurers, insurance products and insurance techniques. The thesis examines investment insurers, the products they offer and their techniques to identify and deal with so-called political risks.
Another important question concerns the notion of political risk. What are considered political risks in the context of investment insurance and how are they conceptualized by investment insurance providers? Investment insurers have largely adopted a business-oriented political risk definition which denotes governmental intervention in foreign investment as political risk without regard to the objectives of government actions. Descriptive studies explain political risk by replicating investment insurers’ categorization of basic coverages that include expropriation, currency inconvertibility and remittance transfer restrictions, political violence and breach of contract. Yet recent studies have increasingly provided in-depth analyses on the notion of political risk as well as on the specific categories of political risk, particularly expropriation. The thesis draws on these studies to critically discuss the concept of political risk as it is used by investment insurance providers.
I focus on foreign investment insurance provided by OPIC and MIGA due to their mandate to promote economic development in the capital-importing countries and for their historical role as the major providers of investment insurance. While focus is on MIGA and OPIC, the thesis offers a general account of the operation of foreign investment insurance by incorporating the available information on investment insurance industry and the international governance of investment insurance. The central issues explored in this thesis such as the principle of subrogation and the notion of political risk help me generalize the study as these issues are characterized similarly with respect to each public investment insurance provider.
The case studies and most examples in this thesis are based on expropriation risk insurance.
The article is designed to introduce and analyze authoritarian constitutionalism as an important phenomenon in its own right, not merely a deficient or deviant version of liberal constitutionalism. Therefore it is not adequate to dismiss it as sham or window-dressing. Instead, its crucial features – participation as complicity, power as property and the cult of immediacy – are related to the basic assumption that authoritarian constitutions are texts with a purpose that warrant careful analysis of the domestic and transnational audience.