This paper provides an outline for a general theory of postwar U.S. labor law and regulation. It focuses on the structure and administration of the Labor Management Relations Act (LMRA), the centerpiece of U.S. labor policy over the past two generations. The central thesis of the analysis is that American labor law tends systematically to constrain and fragment worker organization, and is best understood as comprising a regulatory regime that both codifies and furthers the weakness of American labor. The organizing principle of this regulatory regime is the general denial of substantive generic entitlements for workers, and the general limitation of enforceable substantive worker claims to those claims arising from the guarantees of specific collective bargaining agreements negotiated within narrow contexts of union-employer dealings. As a consequence of this distinctive structure of interest articulation and satisfaction, unions rationally adopt highly particularistic bargaining strategies in their dealings with employers. As a consequence of such adoption, unions are divided within themselves, from one another, and from unorganized workers, with the result that workers overall are cumulatively weakened as a class.

This article explores digitalization’s impacts on the existing international investment law regime. In particular, it examines whether international investment agreements (IIAs) apply to the digital economy, analyzing their scope of application, including the definition of protected investment and protected investor, as well as the territorial application of those treaties. We conclude that the IIAs and their provisions are, in principle, not intended for the digital era. However, their usually broad definitions are likely to cover investments in digital assets, if there is a flexible interpretation of the required territorial nexus. However, we believe caution should be exercised about including digital transformation commitments in IIAs, as they could increase the chance of investor-state dispute settlement (-ISDS-).

The British vote on 23rd June, opting by a rather slim majority to leave the European Union, has sent waves of uncertainty rippling through the island and the continent, as well as through some milestones of European integration. One of these is European citizenship. Paradoxically, it receives a hard shake at the hand of national citizenships, exercised through a referendum.

The CJEU has no jurisdiction to rule in purely internal situations, save for three exceptions. As easy as this may sound, the CJEU's case law is not entirely consistent and created uncertainty for national courts. This article critically examines how the CJEU has dealt with purely internal situations. It shows that the CJEU should be stricter in defending its gates. Instead of turning the three exceptions into the rule, the CJEU should treat the three exceptions as they were originally envisaged: Exceptions. The recent Grand Chamber in Ullens de Schooten is a step in the right direction. A stricter approach makes it necessary that the CJEU looks a bit more over the national judge's shoulder, which changes the cooperative dynamic by putting the CJEU into a more vertical position vis-à-vis national courts. National courts can, however, escape this more conflictual setup by providing more detailed information as to the fulfillment of one of the three exceptions.

Since December 18, 2014, when the Court of Justice of the European Union (CJEU) issued its notorious Opinion 2/13, the conclusions of the Court have been a subject of numerous analyzes and debates—often sharp in their criticism. Now that the content of the Opinion seems fairly elucidated, the scholarly attention should turn towards searching for practical solutions to the CJEU's demands. This Article aims to provide a list of possible solutions to each requirement of the Opinion and assessing their pros and cons. Instead of concentrating on the obstacles posed by the Court, it is incumbent to address the problems with innovative legal thinking and save the project of the EU acceding to the European Convention on Human Rights (ECHR).

In December 2018, the Euro Summit endorsed the Term Sheet on the European Stability Mechanism (ESM) reform prepared by the Eurogroup. In this context, the Euro Summit did not acknowledge the proposal of the European Commission to transform the ESM into the European Monetary Fund (EMF), but simply gave the Eurogroup a mandate to draft the relevant amendments to the ESM Treaty and submit them to the European Council of June 2019. Nonetheless, the justifications for the incorporation of the ESM into the body of the European Treaties continue to be valid and may come back into play. In this respect, it is worth highlighting two flaws that have emerged in the proposed transformation of the ESM into the EMF. First, the ESM Treaty does not contain any rule about extinction and transfer of functions. Second, the Commission’s proposal did not clarify what status the EMF would have enjoyed in the EU legal framework.

This essay deals with the topic of director & officer liability for the dissemination of false information in Germany in the form of ad-hoc disclosures. From the perspective of an American trained attorney, it is surprising to note that there is, to date, very little – quite possibly zero – real personal civil liability in this area for directors & officers of publicly traded companies, however limited criminal sanctions do exist. The essay discusses the lawmaking which is underway in Germany to increase civil liability. After a review of the laws which govern the dissemination of false information, the essay reviews five German cases: Infomatec, EM.TV, Metabox, Comroad and Deutsche Telekom as examples of cases where criminal sanctions for management appear to be much more likely than civil liability.

This article attempts to give a brief overview as to the interplay between the Norwegian Supreme Court and the European Court of Human Rights in Strasbourg. I will do so partly on a general footing and partly connected to a couple of specific cases. In particular, I will comment on the 16 January 2014 judgment from the Strasbourg Court in the Case of Lillo-Stenberg and Sæther v. Norway. This case involved an alleged violation of the right to privacy according to Article 8 of the European Convention on Human Rights (ECHR), by publishing pictures from the wedding of a well-known couple-both performing artists-in a weekly magazine, without their consent.

The Article revisits the German Federal Constitutional Court's NPD decision and the concept of militant democracy regarding party bans in German constitutional law. It argues that the Court's new definition of the free democratic basic order approximates its jurisprudence to the standards developed by the European Court of Human Rights. The Article also compares the German and European standards for party bans. It assesses the respective required risks for democracy that a party needs to pose in order to justify a party ban. In this respect, it is argued that the German standard—though elevated—still falls short of the threshold under European human rights law. Finally, the NPD's anti-constitutional—but not unconstitutional—character is examined, and a recent constitutional amendment to exclude extremist political parties from party financing is evaluated.

The question of churches and religious communities in the EU/EC law arose for the first time in 1997, when Declaration No. 11 on the status of churches and non-confessional organisations was attached to the Amsterdam Treaty. According to this Declaration, “The European Union will respect and does not prejudice the status under national law of churches and religious associations or communities in the Member States. The European Union will equally respect the status of philosophical and non-confessional organisations.” The content of this Declaration was commented on many times by distinguished experts of the European ecclesiastical law. Art. I-52 of the Treaty establishing a Constitution for Europe (Constitutional Treaty/CT) repeats in paragraph one and two Declaration No. 11, and introduces in paragraph three a provision on dialogue between the EU and religious bodies: “Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations.”

First of all I want to express my deep gratitude for having been given the honour to speak to you today. A lawyer from Germany addressing the 50th birthday celebration of the Nederlandse Orde van Advocaten - that would have been inconceivable back in 1952 when the Dutch Bar was founded. This inconceivable idea has become reality thanks to the rule of law. After all, the rule of law has been the fundament on which the treaties establishing the European Union of today have been based. Incidentally, the first such treaty, the European Coal and Steel Community Treaty dates of the same year 1952. We all, and in particular we foreign lawyers, should pay tribute to Hugo de Groot (Hugo Grotius), this magnificent Dutch lawyer, who centuries ago has laid the theoretical bases therefor.

The various contributions to this theme issue are likely to have at least two (non-trivial) things in common. First, they aim to contribute to a research project on “Legal certainty for globalized exchange processes” and to the latter's attempts to explain the observed transformation “towards the transnationalization of commercial law, which is understood as a combination of the internationalization and privatization of the responsibility of the state for the production of the normative good of legal certainty for global commerce”. Secondly, they aim to fulfill this task by making use of “evolutionary theory” or, as it was again expressed in the original conference announcement, by dealing with “a theoretical perspective that gives some substance to the meaning of the term “evolution” with regard to law, social organization, and the state”. Since, as I will try to explain shortly, my own particular take on this – it would appear – relatively small set of commonalities involves more specifically the use of contemporary evolutionary approaches to human behavior. I must admit to having been surprised that no one else seemed to have much use for these approaches in their respective takes on the problems that united us in the conference from which this contribution stems. After all, what better use to make of a theory originating from biology than to elucidate the biological underpinnings of our behavior and its underlying psychological mechanisms as they relate to law and legally relevant phenomena? Perhaps some of the reasons for these at first sight, striking differences in opinion on which “evolutionary theory” to make use of, or what meaning to impinge upon the term “evolution” will become clearer in the pages that follow, offering ways in which eventually to combine them. Or perhaps the two things we had in common when we started out will be all there is left to look at in the end.

The author presents in this paper the new German foreign investment regime entered into force in the spring of 2009. He sets out the basic principles of the regime as well as its enforcement in practice. According to the new German foreign investment regime, the German Federal Ministry of Economics and Technology (BMWi) may examine and prohibit purchases of German companies by foreign investors if they pose a severe threat to public policy or security. Certain transactions, however, fall within the “safe harbour” or are otherwise exempted so that the BMWi has no right of interference. The author presents several exemptions from the scope of application of the regime, which can be either identified from the wording of the law by reverse argument or derived from the spirit and purpose of the new foreign investment regime. Furthermore, by presenting the concept of so called “critical infrastructures”, the paper gives valuable guidance to practitioners on what the German administration might consider relevant for public policy or security. The last part of the paper summarizes the filing and the review process. The parties may, in order to receive clearance for their transaction, notify their transactions to the BMWi and receive a certificate of non-objection. While, this notification is wholly voluntary, parties who do not apply for clearance bear the risk that their transactions are blocked or unwound if the BMWi decides to investigate the transaction within three months from signing ex officio.

The goal of the European Union is not only to harmonize the different national legislations but also to create new company models. These new company models are not intended to replace the national models, but instead to offer a new and free choice to business operators in addition to the national models. It is predictable that among these models will be the European Private Company (Societas Privata Europaea or SPE) regulated by the Proposal for a Council Regulation (presented by the Commission) of 25 June 2008. The other preceding European legal forms have been the European Economic Interest Grouping (EEIG) of 1985, the European Company (SE) of 2001 and the European Cooperative Society (SCE) of 2003.

I wanted to begin by thanking Dr. Voneky for her thoughtful contribution to this rapidly developing area of international law. One of the purposes of the ongoing dialogue with my European counterparts on the legal framework for the use of force and detention of combatants in an armed conflict with non-state actors is to spur dialogue to arrive at a common approach on these issues. I agree with many things in Dr. Voneky's article. I am pleased that, unlike many critics of the United States, she recognizes that it is possible to use force in self defense from armed attacks not directly linked to the actions of any state, and that the law of armed conflict would govern that use of force. I also appreciate that she notes that actions against terrorist groups outside a state's country are not necessarily simply transnational police actions. I wanted to take this brief opportunity to note three areas where there may be some misunderstandings regarding the views of the United States, and then discuss my thoughts on the way forward.

This Article engages in an empirical analysis of the counter-majoritarian role of the Brazilian Supreme Court, the Supremo Tribunal Federal (STF), in terms of its sharp contrast with the aim of attracting wider participation from civil society in public hearings. Public hearings are an important judicial tool that have recently been introduced and that may influence foreign constitutional courts. A public hearing is a procedure in which the STF can hear experts, scientists, professors, civil servants, and even ordinary citizens when a Justice Rapporteur seeks to elucidate a specific technical aspect of a case, a controversial social issue, or an issue in a field that is generally unfamiliar to the presiding judge or judges. This research aims to address the influence of these public hearings on the deliberation process of the STF based on the democratic theory of representation. First, Section B outlines the main premises of the debate, elucidated the purposes and findings of public hearings. Next, Section C presents a theoretical approach addressing deliberation and representation to explain how information obtained in public hearings might improve the STF's adjudicative process. Section D outlines the chosen criteria and methods for the empirical research; this will demonstrate that public hearings in the STF are not working as envisioned. Lastly, to offer qualitative insight, Section E carefully examines two of the eighteen public hearings analyzed. The Article concludes that the STF has much work to do in terms of rethinking and improving the functionality of public hearings.