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In this chapter, I examine the relationship between customary international law and general principles of law. Both are distinct sources of public international law (Art. 38(1)(b) and (c) of the Statue of the International Court of Justice). In a first step, I analyze the different meanings of principles as a “source” of international law. Second, I consider different approaches to principles as a norm type in legal theory. Third, I discuss attempts in international legal doctrine to facilitate conceptual issues by either unifying general principles as a source with the source of customary international law or by equating general principles as a source and as a norm type. Finally, I propose that the delimitation between customary international law and general principles of law as sources of international law should follow the distinction between situations dominated by factual reciprocity (which justify customary norms) and situations where such factual reciprocity is absent (which justify general principles). The jurisgenerative processes leading to the emergence of general principles of international law are processes of changing identities and argumentative self-entrapment.
Scholarship and practice
(2016)
How can I as an international lawyer, conscious that international law is deeply implicated in today’s global injustices and that the course of history will not be changed by any grand legal design, practice law responsibly? Taking as a point of departure my own desire not to seek comfort in the formulation of a critique of law, but to aspire to a responsible practice, I consult two quite different bodies of work: first, critical theory of law and second, recent scholarship on international law that argues a practice guided by ethics may enhance the legitimacy of international law. I turn then to my own practice of international economic law focusing on my occasional role as legal expert on the so-called megaregionals the EU aims to conclude with Canada and the United States. I propose that the debate on international economic law lacks an investigation into the role of law in shaping political economy; that this lack can be explained by the compartmentalization of expertise which leads to justification gaps with respect to projects such as the megaregionals. One way how lawyers can assume responsibility is to work on closing these gaps even if it means leaving the ‘inside’ of the legal discipline. Finally, I suggest that a responsible legal practice of social change might follow Roberto Unger’s call for institutional imagination. Maybe I can satisfy my wish for a transformative practice by joining forces with friends in experimenting with institutions, hoping to build an alternative political economy.
Constitutionalization beyond the nation state can be observed as an evolutionary process that leads in two quite different directions: (1) constitutions evolve in transnational political processes outside the nation state; (2) simulta-neously, constitutions evolve outside international politics in global society’s ‘private’ sectors. What, however, is the specifically societal element in societal constitutionalism? This is currently the object of a controversy regarding the subjects of non-state constitutions, their origin, their legitimization, their scope, and their internal structures. This article interprets the controversy as a theme with a number of variations. What is the distinctive ‘compositional principle’ in each particular variation? Which problems become evident in its ‘development’? What are its most valuable ‘motifs’? The article starts with David Sciulli’s theme of societal constitutionalism. Then it presents six variations on Sciulli. In a first group, constitutionalization is perceived as the expansion of a single rationality into all spheres of society. In a second group, the motif of the unity of the consti-tution can still be heard, despite the essential pluralism of societal constitution-alism. In the final movement, three further variations will then reprise and devel-op further the most important motifs, in a resumption of the original theme.
The article, which summarizes key findings of my German book ‘Die Gemeinfreiheit. Begriff, Funktion, Dogmatik’ (‘The Public Domain: Theory, Func-tion, Doctrine’), asks whether there are any provisions or principles under Ger-man and EU law that protect the public domain from interference by the legisla-ture, courts and private parties. In order to answer this question, it is necessary to step out of the intellectual property (IP) system and to analyze this body of law from the outside, and – even more important – to develop a positive legal conception of the public domain as such. By giving the public domain a proper doctrinal place in the legal system, the structural asymmetry between heavily theorized and protected IP rights on the one hand and a neglected public do-main on the other is countered. The overarching normative purpose is to devel-op a framework for a balanced IP system, which can only be achieved if the public domain forms an integral part of the overall regulation of information.
According to the prevailing view, the purpose of digital copyright is to balance conflicting interests in exclusivity on the one hand and in access to information on the other. This article offers an alternative reading of the conflicts surrounding copyright in the digital era. It argues that two cultures of communication coexist on the internet, each of which has a different relationship to copyright. Whereas copyright institutionalizes and supports a culture of exclusivity, it is at best neutral towards a culture of free and open access. The article shows that, depending on the future regulation of copyright and the internet in general, the dynamic coexistence of these cultures may well be replaced by an overwhelming dominance of the culture of exclusivity.
Dieser Beitrag ist ein Besprechungsaufsatz zu Beatrice Brunhöbers 2010 erschienener Dissertation Die Erfindung „demokratischer Repräsentation“ in den Federalist Papers (Mohr Siebeck, Tübingen: Grundlagen der Rechtswissenschaft, Bd. 14), in der Brunhöber die innovative – und auch die Verfassungsentwicklung andernorts prägende – Kraft der Verbindung von Demokratie, politischer Repräsentation und Föderalismusidee durch die amerikanischen Verfassungsväter herausarbeitet. Auf der Basis von Brunhöbers Untersuchung geht es insbesondere darum, wie sich das von Hamilton, Madison und Jay entworfene ‚alte‘ Konzept zur Gestaltung eines starken Gemeinwesens (eingeschlossen das vertrauensbildende Prinzip der Gewaltenteilung) für einen integrativen Umgang mit den ‚modernen‘ Gegebenheiten pluralistischer Gesellschaften nutzbar machen läßt, im Blick die Gesamtheit (und Vielfalt) des Staatsvolkes als Geltungsfundament legitimer Herrschaft. Im Hintergrund steht die Frage nach Möglichkeiten zur Nutzbarmachung historischer Vergewisserungen für heutige Debatten überhaupt.
Ecolabels are frequently presented as consumer information tools that efficiently promote environmental aims such as the sustainability of fisheries. Two recent WTO dispute settlement cases -- Tuna II and COOL -- have called into question the characterisation of labels as ‘consumer information tools’ by illuminating the regulatory power and purposes of labelling. Tuna II moreover clarifies that WTO law does not necessarily privilege ecolabelling over more openly interventionist government measures aimed at environmental protection. In this contribution I first sketch two views of ecolabelling -- one that depicts ecolabelling as primarily aiming at consumer information and another that stresses the regulatory function of labelling. I then turn to the dispute settlement reports in Tuna II and COOL in order to specify the government authority involved in many labelling schemes. I conclude this contribution with the call for a critical assessment of ecolabelling. The power of ecolabelling may be employed to reshape markets and promote green growth. At the same time, however, it may consolidate a trend that places the consumer at the centre of initiatives for societal change and loses sight of potentially more radical transformations through the engagement of human beings as citizens.
This country report was prepared for the 19th World Congress of the International Academy of Comparative Law in Vienna in 2014. It is structured as a questionnaire and provides an overview of the legal framework for Free and Open Source Software (FOSS) and other alternative license models like (e.g.) Creative Commons under German law. The first set of questions addresses the applicable statutory provisions and the reported case law in this area. The second section concerns contractual issues, in particular with regard to the interpretation and validity of open content licenses. The third section deals with copyright aspects of open content models, for example regarding revocation rights and rights to equitable remuneration. The final set of questions pertains to patent, trademark and competition law issues of open content licenses.
Concepts of legal capacity and legal subjectivity have developed gradually through intermediate stages. Accordingly, there are numerous types of legal subjects and partial legal subjects, and ever-new types can develop, at the latest once the law confronts new social and technological challenges. Today such challenges seem to be making themselves felt especially in the field of information and communication technologies. Their specific communicative conditions resulting from the technological networking of social communication have a particularly pronounced influence on legal attributions of identity and action, and hence above all on issues of liability in electronic commerce. Here in particular it is becoming increasingly difficult to distinguish concrete human actors and, for example, to identify them as authors of declarations of intent or even as individually responsible agencies of legal transgressions. The communicative processes in this area appear instead as new kinds of chains of effects whose actors seem to be more socio-technical ensembles of people and things – whereby the artificial components of these hybrid human being-thing linkages can sometimes even be represented as driving forces and independent agents.
How special are they? - Targeting systemic risk by regulating shadow banking : (October 5, 2014)
(2014)
This essay argues that at least some of the financial stability concerns associated with shadow banking can be addressed by an approach to financial regulation that imports its functional foundations more vigorously into the interpretation and implementation of existing rules. It shows that the general policy goals of prudential banking regulation remain constant over time despite dramatic transformations in the financial and technological landscape. Moreover, these overarching policy goals also legitimize intervention in the shadow banking sector. On these grounds, this essay encourages a more normative construction of available rules that potentially limits both the scope for regulatory arbitrage and the need for ever more rapid updates and a constant increase in the complexity of the regulatory framework. By tying the regulatory treatment of financial innovation closely to existing prudential rules and their underlying policy rationales, the proposed approach potentially ends the socially wasteful race between hare and tortoise that signifies the relation between regulators and a highly dynamic industry. In doing so it does not generally hamper market participants’ efficient discoveries where disintermediation proves socially beneficial. Instead, it only weeds-out rent-seeking circumventions of existing rules and standards.
This paper contrasts the recent European initiatives on regulating corporate groups with alternative approaches to the phenomenon. In doing so it pays particular regard to the German codified law on corporate groups as the polar opposite to the piecemeal approach favored by E.U. legislation.
It finds that the European Commission’s proposal to submit (significant) related party transactions to enhanced transparency, outside fairness review, and ex ante shareholder approval is both flawed in its design and based on contestable assumptions on informed voting of institutional investors. In particular, the contemplated exemption for transactions with wholly owned subsidiaries allows controlling shareholders to circumvent the rule extensively. Moreover, vesting voting rights with (institutional) investors will not lead to the informed assessment that is hoped for, because these investors will rationally abstain from active monitoring and rely on proxy advisory firms instead whose competency to analyze non-routine significant related party transactions is questionable.
The paper further delineates that the proposed recognition of an overriding interest of the group requires strong counterbalances to adequately protect minority shareholders and creditors. Hence, if the Commission choses to go down this route it might end up with a comprehensive regulation that is akin to the unpopular Ninth Company Law Directive in spirit, though not in content. The latter prediction is corroborated by the pertinent parts of the proposal for a European Model Company Act.
How special are they? - Targeting systemic risk by regulating shadow banking : (October 5, 2014)
(2014)
This essay argues that at least some of the financial stability concerns associated with shadow banking can be addressed by an approach to financial regulation that imports its functional foundations more vigorously into the interpretation and implementation of existing rules. It shows that the general policy goals of prudential banking regulation remain constant over time despite dramatic transformations in the financial and technological landscape. Moreover, these overarching policy goals also legitimize intervention in the shadow banking sector. On these grounds, this essay encourages a more normative construction of available rules that potentially limits both the scope for regulatory arbitrage and the need for ever more rapid updates and a constant increase in the complexity of the regulatory framework. By tying the regulatory treatment of financial innovation closely to existing prudential rules and their underlying policy rationales, the proposed approach potentially ends the socially wasteful race between hare and tortoise that signifies the relation between regulators and a highly dynamic industry. In doing so it does not generally hamper market participants’ efficient discoveries where disintermediation proves socially beneficial. Instead, it only weeds-out rent-seeking circumventions of existing rules and standards.
While distribution conflicts over natural resources were central to the debates on a New International Economic Order, during the last decades the specific distribution conflicts surrounding natural resource exploitation no longer have been at the core of international law. In this paper I trace the developments in the relationship between international law and resource distribution conflicts. I first argue that the New International Economic Order favored the political resolution of distribution conflicts over natural resources and envisaged international distribution conflicts to be addressed by the political organs of international institutions within legal procedures Second, I show how the NIEO was surpassed by a different order that relied largely on the market as a distribution mechanism for raw materials and how international institutions and international law played a crucial role in the establishment of this order by promoting the privatization of natural resource exploitation and protecting foreign direct investment and trade. With reference to the copper industry in Zambia I thirdly illustrate how international investment law, and more broadly international economic law, is shaping (and affecting the resolution of) not only distribution conflicts between, but also within States. I conclude with a call for a renewed focus on an international law of resource conflicts to allow for their political resolution given the countermoves we can observe with respect to international investment law and the persistence of (violent) conflicts over natural resource exploitation within States.
Expressivist theories of punishment, according to which a penal sanction articulates or expresses a certain meaning to the offender, to the victim and to society, become more and more prominent among the traditional theories of punishment as retribution or deterrence. What these theories have in common is the idea that the conveyance of the meaning is in need of a communicative action, and that the penal sanction is such a communicative act. This article argues that pure communicative theories of punishment face great difficulties in generating any justification for hard treatment. One challenge is that certain types of sanctions – in particularly, hard treatment – restrict the communicative opportunities of the incarcerated individual; which generates a paradox, in that it turns punishment into a communicative action of non-communication. Beyond that, moreover, all practices of hard treatment potentially become unnecessary, if expressing the moral message of censure constitutes a kind of action in itself, and as such, itself a treatment of the offender, embedded in a communicative relationship between offender, victim and society; such that we may be able to think of the history of punishment as a development where hard treatment becomes more and more unnecessary for the conveyance of the message.
From the late middle ages to early modern times (ca. 1200-1600) the Lübeck City Council was the most important courthouse in the Baltic. About 100 cities and towns on its shores lived according to the law of Lübeck. The paper deals with the old theory that Imperial law, i.e. mainly the learned Ius commune, was generally rejected by the council on the grounds of its foreign nature. The paper rejects this view with the help of 8 case studies. There exist rather spectacular statements against Imperial Law, but a closer look reveals that they have to be seen in the light of a specific practical context. They must not be confounded with general statements in which the council had no interest. Its attitude towards Learned Law was flexible and purely pragmatic.
Even though fiscal sovereignty still counts as a fundamental principle of government, global and regional economic integration as well as increasing levels of sovereign debt severely limit governments’ tax policy choices. In particular the redistributive function of taxation has suffered in the pursuit of economic competitiveness. As inequality rises and attention is directed again at taxation as a means for redistribution, international cooperation appears as an avenue to enable redistribution through taxation. Yet, one of the predominant international institutions dealing with tax matters – the OECD – with its focus on economic growth and competitiveness and resulting tax policy advice prevents rather than promotes national and international debates on taxation as a question of social justice. The paper argues that questions of taxation need to be perceived as questions of social justice and thus as questions of politics, and not merely of economics. Only if taxation is not considered a mere economic instrument can a ‘political economy’ be maintained. The paper addresses the three objectives of taxation – revenue generation, redistribution and regulation -- and how they are affected as governments aim for fiscal consolidation to conclude that governments’ power to freely pursue and calibrate these objectives has come to appear rather as a myth than the core of sovereignty. It then demonstrates how the OECD’s tax policy advice and cooperation in tax matters react to the constraints on governmental taxation powers; how they aim at economic growth and competitiveness to the detriment of (other) ideas of social justice. The paper concludes with a call for (re)integrating social and global justice concerns into debates on taxation.
The article introduces a research project financed by the Academy of Sciences and Literature Mainz began in 2013 and will extend over an 18-year period. It aims at producing a historical-semantic dictionary elucidating central terms of the School of Salamanca's discourses and their significance for modern political theory and jurisprudence. The project's fundament will be a digital corpus of important texts from the School of Salamanca which will be linked up with the dictionary's online version. By making the source corpus accessible in searchable full text (as well as in high quality digital images), the project is creating a new research tool with exciting possibilities for further investigations. The dictionary will be a valuable source of information for the interdisciplinary research carried out in this field.
The paper focuses on the problems of a juridical classification and evaluation of Ancient Near Eastern treaties with regard to the question if there existed an Ancient Near Eastern International Law or not. Alternatively treaties and their content are looked at uncommitted as mechanisms of conflict and dispute resolution. Main aspects are preliminary and prophylactic conflict resolution in treaties and the procedural context and efficiency of treaties.
Stability maintenance at the grassroots: China’s weiwen apparatus as a form of conflict resolution
(2013)
This working paper explores the history and potential of “stability maintenance” (weiwen) as a form of conflict resolution in China. Its emphasis on conflict resolution is novel. Previous examinations of the weiwen apparatus have concentrated on its political function, namely to manage resistance within society and maintain the authority of the party-state. This avenue of investigation has proved fruitful as a means of characterising the political motivation and the higher-level strategies involved in stability maintenance. Nonetheless, there remain significant conceptual and empirical gaps relating to how stability maintenance offices and processes actually function, particularly out of larger cities and at local levels. The research described in this paper aims to consider the effectiveness of stability maintenance as a part of the “market” for conflict resolution in local China, and to test the hypothesis that conflict resolution as facilitated by weiwen is the most pragmatic and effective means of actually resolving conflicts in the current Chinese political context, notwithstanding the closeness of the stability maintenance discourse to state authority and its relative distance from rule of law-based methods of dispute resolution...
The German Capital Markets Model Case Act (KapMuG) and its amendment of 2012 highlight some fundamentals of collective redress in civil law countries at the example of model case procedures in the field of investor protection. That is why a survey of the ongoing activities of the European Union in the area of collective redress and of its repercussions on the member state level forms a suitable basis for the following analysis of the 2012 amendment of the KapMuG. It clearly brings into focus a shift from sector-specific regulation with an emphasis on the cross-border aspect of protecting consumers towards a “coherent approach” strengthening the enforcement of EU law. As a result, regulatory policy and collective redress are two sides of the same coin today. With respect to the KapMuG such a development brings about some tension between its aim to aggregate small individual claims as efficiently as possible and the dominant role of individual procedural rights in German civil procedure. This conflict can be illustrated by some specific rules of the KapMuG: its scope of application, the three-tier procedure of a model case procedure, the newly introduced notification of claims and the new opt-out settlement under the amended §§ 17-19.