Sierra Leone is a poor nation in the midst of a laudable campaign to bring justice and reconciliation to a people desperately in need of it. Having suffered through the scourge of a decade long civil war, the nation employed two distinct yet related institutions to take a leading role in this campaign. Uniquely, the Government of Sierra Leone (GoSL) sought the assistance of the United Nations (UN) in setting up the world's first “hybrid tribunal”, named the Special Court for Sierra Leone (SCSL), to work alongside the already conceived of Truth and Reconciliation Commission (TRC). These two institutions were to employ different procedures and, to an extent, different objectives in the hopes of achieving peace, justice and reconciliation.

On Thursday 19th of July 2012, just prior to the parliamentary summer holidays, the Deutscher Bundestag (German Parliament) passed a resolution based on a rather irritating motivation. The parliament intended to guarantee that “Jewish and Muslim religious life will be further possible in Germany.” The resolution itself consisted in only one sentence: The German Government is requested to provide until fall 2012 – in due consideration of the constitutionally protected legal positions of the well-being of the child, the right to bodily integrity, the right to religious freedom and the parental rights in education – draft legislation in order to safeguard that professionally performed male circumcision, without unnecessary pain, is generally lawful under German law. What had happened to provoke such extraordinary political action in defense of religious freedom? The resolution responds directly to a decision of the Landgericht (Court of Appeal) Cologne from 7 May 2012 which declared that male circumcision in children amounts to criminal battery, even if performed lege artis and with the consent of the parents unless there is a medical indication for the procedure. In doing so, the court followed a restrictive position within the German criminal law literature that has been advocating the criminalization of male

The purpose of this essay is to consider the significance of new developmentalism for the field of law and development. New developmentalism refers to a theory and practice of development economics, which appears to have entered mainstream development thinking. Its core elements also seem to have been a factor in the dynamic economic growth that has occurred in a number of emerging economies. This trend is significant for the field of law and development because: (a) conventional economic development orthodoxies are seen to have shaped previous law and development movements; (b) these models and their corresponding law reform projects were arguably inadequately adapted to existing domestic circumstances; and (c) new developmentalism represents a departure from conventional development orthodoxies, as it necessitates both learning and adapting to local settings. Yet such a system also creates new challenges for law reformers and policymakers within the international development community (not to mention domestic reformers), and it remains unclear (if not doubtful) that new developmental states can be engineered by external actors and institutions.

On 7 February 2014 in the OMT Case, the German Constitutional Court in Karlsruhe referred a question about the interpretation of Treaty law to the European Court of Justice for the first time. The question was whether the European Central Bank exceeded its mandate when it declared, in September 2012, that it was prepared to make emergency, unlimited purchases of specific states' bonds. Some view the referral as a genuflection acknowledging the judicial superiority of European Union jurisprudence. Has the Karlsruhe Court relinquished its role as “the final arbiter” and thereby surreptitiously bid farewell to the German sovereignty that the same Senate of the Constitutional Court so vigorously endorsed in the Lisbon Treaty Case in 2009?

Quite unsurprisingly, the CJEU has held that the ECB's OMT program does not violate EU law. In accordance with this holding, I argue in the first part of this note that the OMT program does not transgress the ECB's mandate under the Treaty, which is often interpreted too narrowly, in particular by German legal scholars. Furthermore, I argue that a violation of the prohibition of monetary financing of the member States as enshrined in article 123, para 1 TFEU cannot be inferred from the ECB's announcement of a program, which has never been implemented. In any case, there is clearly no manifest and grave transgression of EU competences which, according to the German Federal Constitutional Court's (FCC) Honeywell doctrine, is required for an ultra vires finding. The second part of this note shows that the FCC's doctrine regarding transgressions of competences by EU organs (ultra vires review) is not only unconvincing as a matter of principle but also and worse (as on premises we can always reasonably disagree) not consistently applied to the OMT program. The note also objects to the Court's somewhat trendy blending of ultra vires and constitutional identity review of EU law through which it increasingly conceals its approach of applying the so-called constitutional constraints of European integration to the EU organs' conduct. The forthcoming FCC judgment is therefore less important as regards the quite foreseeable finding on the lawfulness of the OMT program but – hopefully – of vital importance as it might embody a more coherent relaunch of the FCC's standards of judicial review with regard to EU law.

The judgment of the Court of Justice of the European Union (CJEU) on the European Central Bank's (ECB) 2012 announcement of future Outright Monetary Transactions (OMT) comes as no surprise. It had not been expected that the CJEU would interpret the European Economic and Monetary Union's (EMU) Treaty provisions the way the FCC had “suggested.” Neither had it seemed conceivable that the CJEU would reject the FCC's request for a preliminary ruling holding that a legally non-binding assessment of the EU action's lawfulness could not be requested under Article 267 TFEU. The judgment had nevertheless been awaited for with tension for two reasons: First, in the vigorous and in part very critical debate about the ECB's competences under the TFEU and its alleged ultra vires action a judgment by the CJEU was necessary to settle the fundamental European law issues at stake. This is all the more important with regard to the ECB's current Expanded Asset Purchase Program (EAPP) as well as its interconnection with the European Stability Mechanism's (ESM) financial assistance programs. The CJEU's holdings on the ECB's competences within the EMU framework are discussed in the first part of this note regarding the distinction between monetary and economic policy (infra section A.I.) and the interpretation of Article 123, paragraph 1 TFEU which prohibits monetary financing of the member States by the ECB (infra section A.II.). Second, it was clear that the judgment would shape the new stage in the changing and sometimes explosive on-off relationship between the CJEU and the FCC, the stage entered into by Karlsruhe's first ever request for a preliminary ruling. The FCC had fortified its ultra vires doctrine and clearly indicated its readiness not to follow the CJEU but to insist on the notorious “last word” of the German Constitution instead. Thus, the second part of this note discusses the constitutional legal premises of the FCC's approach and the procedural and substantial manner in which the FCC tries to scrutinize the ECB's OMT program (infra sections B.I. and B.II.). In this context, possible scenarios for the upcoming judgment (infra section C.I.) and consequences for European multi-level constitutionalism (infra section C.II.) will be discussed.

Over the summer of 2012, the pending verdict of the German Federal Constitutional Court (FCC) was a topic of much speculation not only in Germany and in the European Union (EU), but also on the international level. Christine Lagarde, the managing director of the International Monetary Fund (IMF) was quoted as threatening to leave a meeting, were she to hear again “Bundesverfassungsgericht.” That decisions of a German non-majoritarian institution have such transnational repercussions while being guided by German laws and national considerations is nothing new. The Bundesbank's D-Mark rule was comparable and effectively pushed the introduction of the euro along. But also previous landmark rulings of the FCC on European integration raised cross-border attention, given that the Constitutional Court has the final say on German politics, and the biggest member state and economy of the EU can hardly be ignored. Moreover, being one of the most powerful constitutional courts in Europe, and certainly the one whose judgments receive most attention, rulings of the FCC are not only often cited but may also serve as a role model for other constitutional courts. Protest coming from this angle may therefore multiply.

As a result of a series of high-profile corporate collapses worldwide, along with regular reporting of shareholder money being spent on corporate jets, executive golf days and increasingly excessive executive compensation arrangements, the common perception is that the executives of our largest corporations are driven by self-interest with little regard for what is best for the corporation. Due to this negative perception, there has been an exponential increase in the amount of laws, rules and guidelines setting in place a heightened standard of corporate governance best practice. Without such regulation, it is believed, another collapse or scandal is inevitable. In this article, I dispute this reasoning. In my view if we embrace “positive corporate governance”, in which the positive strengths and virtues of company executives are emphasised, we can move towards an environment in which heavy regulation is replaced by positive corporate norms inside the corporation. I then apply my approach of positive corporate governance to address one of the most significant issues confronting corporate regulation at present- how to deal with the rapid increase in executive compensation in our largest corporations. I suggest that the dominant methodology of pay for performance is ultimately flawed.

The relationship between Community law and Private International Law (PIL) did not have an easy start. The original EEC Treaty merely made one reference to PIL. The notable exception was the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (1968), an international convention concluded on the basis of art. 220 EEC (293 EC). The Rome Convention on the Law Applicable to Contractual Obligations (1980) did not even have an explicit legal basis. After the adoption of the Rome Convention it remained relatively silent on the Community level. It did not help that due to the status of international convention the European Court of Justice (ECJ) was deprived of any power of interpretation. The problem was resolved in two separate protocols. The protocol on the Brussels Convention entered into force in 1975 and the protocol on the Rome Convention only entered into force in 2004. Whereas there has been a substantial amount of case-law on the Brussels Convention, the ECJ only delivered its first judgment on the Rome Convention in October 2009.

The administration of the traditional nation-state used to operate as a rather closed system to the outside world. Today, cooperation between the public authorities of different States and between States and international bodies is a common phenomenon. Yet the characteristics and mechanics of such cooperation can hardly be understood using the concepts domestic public law or public international law currently on offer. Conventional concepts, such as federalism, confederalism or State-centered “realism” hardly fathom the complexity of interactions or reflect the changed role of the State, while more recent concepts, such as multi-level systems or networks, seem to encompass only parts of the phenomena at hand. Given this void, we propose to explore the notion of “composite administration” (Verbundverwaltung) and argue that it offers a concept which can combine more coherently the seemingly diverging legal elements of cooperation and hierarchy that distinguish administrative action in what often is called a multi-level administrative system. Even though the concept of composite administration was originally designed and further developed with respect to the largely federal European administrative space, we suggest testing the concept in the wider context of international cooperation. We believe that it offers valuable insights and raises critical questions, even though we do not intend to insinuate any proto-federal prospects of the institutions discussed in this paper.

This contribution examines the developing contours of the essence of the fundamental right to an effective remedy and to a fair trial in the light of salient case-law of the Court of Justice of the European Union. It is divided into three main parts. The first part provides an overview of the meaning of the essence of fundamental rights in EU law and the scope of the inquiry in relation to Article 47 of the Charter of the Fundamental Rights of the European Union (“the Charter”). The second part evaluates the essence of the fundamental right to an effective remedy and to a fair trial in connection with justified limitations that may be placed on its exercise as provided for in Article 52(1) of the Charter within the framework of the EU system of fundamental rights protection, which in turn implicates the relationship with the Court’s case-law on national procedural autonomy, equivalence, and effectiveness. The third part delves into the essence of the fundamental right to an effective remedy and to a fair trial within the framework of the EU system of judicial protection, as illustrated by the Court’s case-law in several areas, including standing for individuals in direct actions before the EU courts, judicial independence, and restrictive measures in the Common Foreign and Security Policy. Through this analysis, the author argues that, while much awaits further refinement, certain recent developments in the Court’s case–law indicate that the essence of the fundamental right to an effective remedy and to a fair trial can play a meaningful role in the EU system of fundamental rights protection and the EU system of judicial protection more broadly, and thus the best may be yet to come as that case-law progresses in the future.

During the past months the European Council agenda has been dominated by Europe's economic crisis, which combines elements of banking crisis in the euro area and individual Member States' debt crisis – and has turned into something of an existential crisis for the Union as a whole. Many questions concerning the Union's legitimacy have been raised in the context of the current debates pointing out how the role of democratic institutions has turned blurry while market pressure has been tackled in quickly developing institutional structures by taking fast decisions on major economic commitments involving a tightened belt both for those receiving the aid, and for those giving the necessary guarantees required by the creditors. As the crisis has evolved, these questions have become more or less fundamental in nature since they have increasingly encompassed the trust in the possibilities of the Union to manage the crisis through its own decision-making. But at the same time, crises also bring about potential for change.

On July 1st, 2005, the 7th Amendment to the Law against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen – GWB) became effective. The modernization of the GWB was indispensable in bringing German law in line with Regulation (EC) No. 1/2003. Regulation 1/2003 decentralized the enforcement of EC competition rules and aimed to pave the way for effective private antitrust litigation in Europe. Thus far, private parties have invoked Art. 81 and 82 EC Treaty primarily as shield by arguing that certain agreements were void. Only in very few instances were those rules used as sword to sue infringers for injunctive relief or damages. To stimulate private enforcement, Regulation 1/2003 inter alia abolished the European Commission's exclusive power to exempt practices which are prohibited pursuant to Art. 81 (1) EC Treaty and entitled national competition authorities and courts to apply Art. 81 (3) EC Treaty. Moreover, it empowered the European Commission to make written submissions in antitrust cases pending before national courts. In line with the new European approach, the German legislature has overhauled the hitherto existing rules of German competition law considerably. This article will briefly describe the general changes brought by the reform and take a closer look at the amended rules relating to private antitrust litigation before German courts.

This paper examines the ambiguous relationship between violence, law, and sovereignty in the context of terrorism today. It focuses, not on normative questions about terrorist violence, but on its structural relationship to law and the sovereign state. Part of the difficulty in theorising terrorism is its heterogeneous and indeterminate nature. For instance, if terrorism is to be characterised by a form of violence designed to inspire fear, then one can of course speak equally about state terrorism as one can about non-state terrorism. Indeed, one might recall that the very word terrorism derives from La Terreur of the post-revolutionary French Republic in the early 1790's. Saint-Just's words stand out as one of the most infamous justifications of state terrorism: “What do you want, you who do not want virtue in order to be happy? What do you want, you who do not want the Terror to be used against the wicked?” That the highest ideals of the Republic were accompanied, and indeed inscribed, through a systematic, yet often indiscriminate, register of violence – that Republican virtue came to be associated with the willingness to be merciless – is more than just a vicissitude of history. It speaks perhaps to the very nature of political discourse itself, unmasking the violence implicit in every political symbolisation, at the base of every law, no matter how democratic.

This contribution discusses National Parliaments’ subsidiarity objections raised in the context of the Early Warning Mechanism (EWM) to the European Public Prosecutor Office proposal, and the European Commission response to them. It argues that National Parliaments raised important points, on how does subsidiarity apply respectively, when the wording of the Treaty grants the Council the option to act, as opposed to an obligation to act; on how to assess the inefficiency of the national level; on how does subsidiarity apply in a geographically fragmented context, and on the legitimacy for the EU to regulate non cross-border behaviors. It criticizes the Commission's hasty dismissal of all National Parliaments’ objections, and its decision to leave the proposal's text untouched. It further argues that the Commission's interpreted the EWM as an arena where to test the political feasibility of the proposal, as it had occurred in the past, rather than as a proper subsidiarity policing mechanism. It finally provides some observation on how this interpretation of the EWM has negative implications to terms of subsidiarity policing, of understanding the substance of the principle, and of input legitimacy.

A new movement has come to legal science. It strikes self-awareness into the minds of all jurists who falsely believe their deeds fully consistent with their ideals. It pierces and destroys these delusions and undertakes now, in light of new, less modest ideals, to justify our constant activity to ourselves: the creation of law. Yet, no matter how audibly our movement is simultaneously heralded in various fields, it still lacks unity and awareness of its power. Therefore, we venture an attempt here to summon all its best forces into unity: an attempt that deliberately ignores everything that separates discrete writers from one another, a unity that does not expect itself to be the system of any one person, nor the program of all of them, and therefore acts on its own responsibility.

The outbreak of bovine spongiform encephalopathy (hereinafter BSE) in Europe has brought about serious tensions and fears – not only among consumers, but also among the national and European authorities responsible for risk management. Faced with the incapacity of the existing system to control the situation, on the one hand, and the need to restore consumers’ confidence on the other, the EU and national regulators felt obliged to repair the weaknesses as soon as possible. However, remedial actions undertaken at the time of the BSE crisis were not always the product of thorough consultations and they were often not well coordinated. Thus, they became a source of disagreement among the various actors in play. The case Commission v. France, which I will examine more closely in this paper, illustrates such a conflict among the national and European scientific authorities. The judgment was delivered in 2001, but the problem of the successful integration of science into the regulatory decision-making process of the EU still remains unsettled. In this paper I will present suggestions as to how the situation could be influenced by the outcomes of recent reforms of European food safety law and the establishment of the European Food Safety Authority.

On 22 November 2005, the European Court of Justice (ECJ) delivered a judgement in a preliminary ruling procedure from the Arbeitsgericht München (Labour Court Munich), answering questions concerning the interpretation of Clauses 2, 5 and 8 of the Framework Agreement on fixed-term contracts, put into effect by Council Directive 1999/70/EC of 28 June 1999, and as regards the construction of Article 6 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. Essentially, the Arbeitsgericht wanted to know whether a statutory provision exempting employees of 52 years of age and older from limitations to the conclusion of fixed-term contracts was compatible with Community law.

U.S. debates on reforming the Supreme Court, including controversial arguments to break the norm against court-packing to repair the democratic system, have generally focused on historical precedents and the domestic system, with scant comparative analysis. However, the U.S. debate raises fundamental questions for comparative constitutional lawyers regarding the paradoxes of constitutional repair in contexts of democratic decay, framed here as a distinct category of constitutional transition. This study argues that sharpening our analytical tools for understanding such reforms requires a novel comparative and theoretical approach valorizing the experiences of Global South states and drawing on, and connecting, insights across four overlapping research fields: Democratic decay, democratization, constitution-building, and transitional justice. The article accordingly pursues comparative analysis of the legitimacy of court-packing through case-studies of Turkey and Argentina to offer a five-dimensional analytical framework: (i) democratic context; (ii) articulated reform purpose; (iii) reform options; (iv) reform process; and (v) repetition risk. In doing so, this article seeks not to present a rigid check-list for evaluating the legitimacy of contested reforms, but rather, to foreground important dimensions of reforms aimed at reversing democratic decay as an emergent global challenge for public law meriting closer attention.

Very seldom has a judgment or advisory opinion of the International Court of Justice (ICJ) received so much media coverage as the recent Advisory Opinion on the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo rendered on 22 July 2010 in response to a question posed by the General Assembly. The question had been forwarded on behalf of a request by Serbia and was phrased in the following way: “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”

The German Basic Law is a resilient constitution. It has proved able to cope with both the new beginning of the constitutional tradition in Germany after the cataclysm of 1945 and German reunification after the fall of the Berlin Wall in 1989. To be sure, there is reason for some critical reflection concerning concrete questions and even fundamental issues—not the least of which is the question whether German reunification should have been marked by a process of constitutional self-reflection and renewal beyond what has been done. All in all, however, the Basic Law is, in historical perspective, a remarkable success. Therefore, it is not surprising that it has gained much international attention. Some aspects of the Basic Law have even become a kind of attractive export article not accounted for in Germany's foreign trade balance, but nevertheless of considerable importance.