[Editors’ Comment: The following is the text of Mr. Kenny's remarks at the Second European Corporate Governance Conference, which was organized by the Vlerick Management Institute and the University of Gent, Belgium, and held at the Belgian National Bank, Brussels, 28 & 29 November 2002. The conference, which was convened by Professor Lutgart Van den Berghe of the University of Gent, was dedicated to the intensive debate over the marks and characteristics of “European Capitalism” in light of the international corporate governance debate, which has been affected by the recent earthquakes in the confidence of investors, shareholders and stakeholders precipitated by the corporate scandals of Enron, Worldcom, Global Crossing and others. The conference also took note of the impact of America's new Sarbanes-Oxley legislation, which seeks to respond to the wave of corporate scandals, on the international corporate governance debate.

All jurisdictions assume a concept of an act of a sexual nature by regulating sex crimes. Until the sex revolution and feminist movements for equality in sexual relations, criminal law was mostly concerned with specific types of sexual acts, particularly non-marital sexual intercourse. With the paradigm shift of recent years, criminalization tends to embrace all acts of a sexual nature with another person without her valid consent. Whether the law contains a definition of a sexual act or not, borderline cases show that neither merely objective criteria nor purely subjective elements can serve as basis for the description of the conduct under prohibition. Our Article tries to overcome this deficit in the criminal law theory. Sexual acts should not be understood through the metaphor of a “picture,” as German legal scholars believe, but with the metaphor of a script played out by an actor as sexual theorists put it.

Negotiated agreements in criminal trials—often, somewhat deprecatingly, called “deals” in Germany—are a curious phenomenon. Such agreements informalize criminal proceedings, yet—according to the legislature—they are also restrained by the formal structure of German procedural law, through the principle of judicial investigation. The restraining of deals via procedural law seems like a futile attempt to achieve the impossible: In an inquisitorial system, the court is obliged to find the “real,” material truth by extending the taking of evidence to all facts and means of proof relevant to the decision. Neither ascertainment of guilt nor sentencing can be based merely on hypothetical facts of the case. A recent judgment of the Federal Constitutional Court on negotiated agreements has stressed that it is unconstitutional to base a conviction on facts that have been mutually agreed upon, if it is not certain that the facts are actually real. This decision hints at the problems deals pose for criminal proceedings in Germany. Despite these problems, such agreements have been very common in the last years and decades. There are many reasons for this. We are going to discuss the most important ones here.

This article focuses on the European Court of Justice's [ECJ] recent case law on the free movement of goods in order to show how the boundaries of the prohibition laid out under Articles 28 to 30 EC are once again coming under strain. Such a development, it will be argued, can be observed both in terms of the modification of the scope of the prohibitions set out by Articles 28 and 29 EC and of their application to purely internal situations.

During the past year, I have had an intensive and ongoing dialogue with European government officials about U.S. counterterrorism laws and policies, especially those relating to the detention, questioning, and transfer of members of al Qaida and the Taliban. During this same period, the U.S. legal framework governing the detention and treatment of detainees has evolved significantly, through the passage of the Detainee Treatment Act last December, the Supreme Court's decision in the Hamdan case in June, the transfer of 14 al Qaida leaders to Guantanamo in September, the announcement of new DOD detention policies in September, and the enactment of the Military Commissions Act earlier this month. It has been vexing that so many myths and misunderstandings about United States policies have proliferated. My dialogue with EU governments during the past year has helped to clear up some of these myths and to address issues that are troubling to Europeans. Tonight, I want to provide a comprehensive public explanation of our legal views and policy decisions with respect to the detention and treatment of terrorists, as these have evolved in the United States since September 11th.

When former state president C. Wulff stood accused of having received benefits from a film producer known to him for several years, he argued: “Is a politician not entitled to have friends?” Before such background, the question of where to draw the line between social life of a public servant or politician and criminal behavior arises. Are such persons subject to permanent threat of criminal prosecution if they accept invitations etc., or is it their obligation to the general public to refrain from accepting donations from persons who have interests in their decisions, even if these persons are long known friends of the public servant?

Written in a transitional period between the two World Wars and taking place during the Austro-Hungarian monarchy's last days before World War I, Austrian author Robert Musil's novel, “The Man Without Qualities” considers the societal need of preserving order in times of political disorder by tracing the story of Ulrich, the “man without qualities”. Claiming that “if all that high-speed business doesn't suit us, let's do something else!”, the novel's main character emphasizes the emerging challenge of social cohesion in times of political transformation: between the collisions of public power and private autonomy; a nation-state past and an international future; and collective action and individual capacity.

More than a year has passed since the European Commission introduced the European Private Company (Societas Privata Europaea, SPE) in June 2008. What has become of the draft statute? This paper is meant to give a short overview of its basic features, the other European institutions' discussions and statements, the problems that prevented the proposal from being adopted so far and possible solutions that were introduced.

The fundamental right to an effective remedy as guaranteed in Art. II-107(1) of the ‘Treaty establishing a Constitution for Europe’ (CT) is part of a comprehensive guarantee of effective legal protection and procedural guarantees. In the following, this fundamental right and how it relates to Parts I and III of the CT will be investigated in detail. First, the scope of Art. II-107(1) CT will be identified in Part B. Part C comments on the binding effect of this right. Finally, in Part D, some aspects of the Union's system of legal protection will be investigated in the light of Art. II-107(1) CT, and it will be discussed whether this right could be an instrument to close gaps in the legal protection of individuals against measures of the European Union.

The Brexit referendum highlights the apparently anomalous role of the “people” in the constitutional order of the United Kingdom. Politically speaking, its verdict is acknowledged as unassailable and unaccountable, yet this “sovereign” status has no legal grounds. In turn, some commentators have argued that this discrepancy between “political” and “legal” understandings of popular sovereignty—or the failure to properly institutionalize popular sovereignty in a legal-constitutional form—represents a distinct site of constitutional crisis in its own right. However, I argue that such claims of constitutional anomaly, or of British exceptionalism in this regard, are misplaced. While the Brexit scenario seems to express the destabilizing and disruptive potential of a popular sovereign that exceeds or evades constitutional recognition, this is in no sense a peculiarity of the British constitutional order. By its nature, popular sovereignty is inexhaustible by constitutional recognition, and so it tends to retain such disruptive potential regardless of whatever constitutional form it is assigned. Thus, critics of the British constitutional status quo overestimate the capacity of constitutional law in general to regulate or domesticate the expression of popular sovereignty via referendums.

The interaction between international and domestic legal systems underwent a deep structural change. By means of a literature review concerned with a critical approach of International Law, this Article presents three perspectives: Modern, Imperial Post-Modern, and Deconstructive Post-Modern. Traditional international law scholarship emphasizes the first and the second trends, while this Article presents the third. While the first frames these interactions on the monism-dualism debate, the second establishes an international law prevailing unconditionally over domestic law, international human rights. The third criticizes whether it is still proper to search for an a priori solution for this interaction. By rejecting global governance and the truly common law as alternatives to imperial post-modern international law, this Article emphasizes that legal analysis should identify, stimulate and reinforce the a posteriori customary normative spontaneity of multitude. This Article argues that a serious post-modern international law should be guided by a radical political drive of law, foster a deconstructive interaction of different—spatial, temporal or thematic—representations of law and reject traditional hierarchical solutions and any kind of previous, single and exclusive—national or international—authority between any legal order.

This article explores the systemic impact of digitalization on the use of force regime. It identifies two types of impact: (i) legal uncertainty; and (ii) the replacement of international law. The article discusses legal uncertainty in relation to the content of the rules on the use of force and their application to digital uses of force as well as in relation to the facts that underpin digital uses of force. It then goes on to discuss the replacement of international law as a regulatory tool of the use of force by considering the impact of digitalization on the creation of customary law, legal personhood, and international law’s regulatory modality. The article’s findings are not limited to the impact of digitalization on the use of force regime but extend to international law in general.

This Special Issue considers the situated and contextualized development of socio-legal, or law and society, scholarship within two materially different legal and academic cultures, namely Germany and the United Kingdom, with a view to achieving a better understanding of why and how such differences in understanding and practice have arisen. The contributions are grouped into three themes. The first reflects upon the influence of institutional contexts and scholarly traditions in terms of the development of those approaches that come under the banner of socio-legal studies. The second features contributions that adopt a comparative perspective in terms of selected areas of law, pointing to notably different approaches taken in Germany and the UK, and considering the development of these respective situations. The third looks at the key contemporary trends, theoretical applications, and methodological approaches taken within both countries’ socio-legal academic contexts.

Recent years have seen a proliferation of Special Economic Zones (SEZs) in developed and developing countries. Developed in Europe in its modern shape, most SEZs are located outside the continent today, notably in the developing world, where SEZs form part of these countries’ export-oriented growth policy tools and overall economic development. At a period of growing unilateralism and the return of the State as an economic actor, this contribution seeks to tackle the rise of SEZ laws in the global south, with a particular focus on Africa. It will scrutinize the reasons for their establishment, the measures chosen to promote them, and the international ramifications in these respective regions and broadly on the global plane, notably at the WTO. With the entry into force of the African Continental Free Trade Area (AfCFTA) Agreement, African countries face challenges of multi-layered SEZ governance, which this contribution intends to address. These challenges also extend to the cross-regional trade agreements these countries conclude, individually and as a bloc. Since SEZs are often assimilated with a category of subsidies and are discriminatory trade measures, this contribution, in essence, investigates the extent to which current trade rules at multilateral and regional levels address these controversial aspects of SEZs.

The language of human rights is a prominent tool of choice to push for moral principles such as justice, equity, and fairness in the social, economic, and political spheres. Simultaneously, the concept and practice of human rights have attracted critiques. Relativism is one such enduring critique. Relativists advocate due and reasonable consideration towards cultural diversity and specificity of diverse human communities, within the limits allowed by universality of human rights. The relativist critique featured prominently in the debates surrounding Qatar’s hosting of the FIFA World Cup 2022. Commentators have spoken about Qatar’s scrutiny often moving beyond legitimate human rights criticism, uninformed activism being counterproductive; and the appropriateness of, largely, Western and maximalist ideals of human rights being applied without accounting for local needs and peculiarities. In this Article, I bring together the literature on the relativist critique and the FIFA World Cup Qatar 2022 as a case study, to examine the usefulness and limitation of human rights as a language of critique to achieve meaningful transformative change in sporting contexts. I focus on the debates surrounding the rights of migrant workers and the rights of the LGBTQIA+ community; and argue that while human rights advocacy had a notable impact in relation to FIFA World Cup Qatar 2022, it is a tale full of cautions and lessons.

Much ink has been splashed on the ideological, conceptual, and practical challenges that China’s state capitalism has posed to global trade rules. There is a growing perception that the current international trade rules are neither conceptually coherent nor practically effective in tackling China’s state capitalism. This perception has not only led to the emergence of new trade rules in regional trade agreements, but also culminated in the US-China trade war, only further aggravated by the Covid-19 pandemic. This Article contributes to the debate of what trade rules may be needed to counteract China’s state capitalism by unpacking the black box of China’s state capitalism. Based on an analysis of the nature of China’s state capitalism, this Article provides a preliminary evaluation of current trade rules taken to counteract China’s state capitalism, in particular the new rules in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, and explain why they are unlikely to be successful.

The Constitution of India envisages three types of emergencies: A national emergency; a state emergency (in the federal setup, regions are called states in India, and the central government has the power to impose an emergency if there is a breakdown of law and order in that state); and a financial emergency. The problem the State faces is how it can respond effectively to exceptional situations without casting its adherence to the rule of law into question.“ Ernst-Wolfgang Böckenförde offers a set of solutions within a model structure anchored in constitutional laws. The model structure, which applies at the federal level, advocates a separation between the authorizing agency—the political wing—and the implementation agency, as well as creating a distinction between a ”law“ and a ”measure,“ and between a most extreme and a merely difficult situation. By focusing on the actions of the higher judiciary in India, this Article tests whether the safeguards in Böckenförde's model structure function at the sub-national state level in a very different geography and context. The results highlight the concern that the dynamics of democracy and the reality of how political power is garnered in a federal Westminster style framework effectively stymie the procedural innovations introduced by Böckenförde's model by creating conditions, not for fair play, but for subverting the spirit of the law. Even the procedures outlined by Böckenförde—such as an emphasis on making the agent who holds the emergency powers a political, and not merely an administrative organization—accentuates, rather than mitigates, this problem.