International business disputes rarely go to court, but sometimes they do. By virtue of the internationally accepted principle of party autonomy, business partners involved in cross-border transactions are entitled to select their forum of choice for any dispute which may arise from their commercial relationship. Party autonomy entails the right to opt out of the nation state's court systems. In fact, arbitration clauses often refer disputes to a non-state institution for commercial arbitration such as the International Court of Arbitration of the ICC in Paris. In a choice of court agreement, however, parties may also choose between the different forums for dispute resolution provided by the nation states. In the era of economic globalization when the demand for cross-border dispute resolution services is growing, the provision of legal services for international commerce becomes big business. As a result, national business lawyers develop a natural interest in channeling international disputes to their domestic courts. A very effective way to broaden their market share is to submit as many contracts as possible to their own national law. Once a choice of law clause, English law for example, is agreed on, a corresponding choice of court agreement comes quasi naturally, since the courts of other nations have a lack of experience in applying foreign law. Thus, when international business transactions are negotiated, the involved lawyers engage in what is appropriately described as a ‘fight for the applicable law'.

In recent years hardly any field of private law has given rise to the amount of debate that was provoked by the non-discrimination legislation adopted at the European level and, subsequently, by various Member States. In particular, the run-up and the adoption of the German Allgemeines Gleichbehandlungsgesetz (German General Equality Law, hereafter “AGG”) were subject to extensive deliberation. Numerous German private lawyers objected to the perceived dilution of freedom of contract that they felt would result from the comprehensive private law protection against discrimination.

The foodborne disease and other incidents of food contamination, such as the dioxins crisis, have tested the internal market of the European Union (EU) in relation to the free movement of goods. The protective measures adopted under the safeguard clause obliged EU Member States to act in co-ordination with the European Commission and, in fact, to modify elements of their food chain structure. Certainly the agrofood safety crisis of the 1990s and the review of European food law have resulted in a system in which the European Food Safety Authority (EFSA) plays a key role.

The optimists amongst us assume that human hands — our hands — shape legal education, that legal education shapes the law, and that law shapes the world. The pessimists contend that the process works in reverse, that the forces of political economy ultimately have their way with law as a system of social ordering, as a cultural phenomenon and an intellectual enterprise, and as the subject or object of study in law schools. I am a pessimist by nature, so I will begin on a pessimistic note. However, I am trying to overcome my nature, so I will end on what, for me, is an optimistic one.

In the study of comparative law and legal systems, a problem of focus and perspective presents itself. Comparative scholars often examine the “important” cases decided by appellate courts of foreign nations and the writings of their most important scholars. In Anglo-American nations, jurists are taught in law school, and then in the practice of law to look for authoritative texts, which are often the words of appellate court judges who set precedent. The results of these searches for the authoritative, both in national as well as comparative legal research, may be that scholars do not give enough attention to the average and the pedestrian, but rather focus upon the exceptional, the appellate, the influential and the newsworthy.

This article looks at the reasons for the lack of a discussion on “network oriented” media and internet law. The Internet has fundamentally changed the conditions of communication. It has broken down or undermined all borders between formats, individual and mass communication, communication content, and technologies of telecommunication. As a “network of networks,” it is also a challenge for the legal system which has linked its conceptions and doctrine to those separations and borderlines.

In the legal literature on European integration there is a rather stereotyped tendency to constantly discover new elements of rupture with the past. In the legal domain, at every step we are confronted with some revolutionary novelty arising from European institutions and practices; on a regular basis, we face innovations which are said to mark significant developments in respect of the traditional forms of international governance as well as in respect of the traditional forms of national federalism. The vast literature on the interpretative criteria adopted by the European Court of Justice (hereafter the “ECJ”) only partially escapes this tendency. Surely the experience of European legal integration does not lack revolutionary ruptures and, also from the viewpoint of legal argumentation, it is true that the interaction between jurists coming from different legal experiences has produced some novelties: for example, an increasing hybridization and crossover effect (“Europeanisation”) between patterns of legal reasoning which are characteristic of different national legal cultures. However, this phenomenon has been largely tempered by the typically French syllogistic judicial style of ECJ's rulings. Moreover, despite the novelties identified, the literature on Community law interpretation cannot deny the apparent fact that the interpretative criteria and, more generally, the legal argumentation techniques of the ECJ are essentially the same ones which are familiar to the national legal contexts. It would be surprising if this were not the case, since the judges of the ECJ are trained within the national legal systems and the judgments of the Court are generally expected to be implemented by the national courts. Their grounds must thus be perceived as being legally sound, and not merely political or evocative.

After Habermas' Der gespaltene Westen was published in Germany in 2004 to wide acclaim, Polity Press published an English language edition of the book in 2006. The Divided West contains Habermas' recent writings on international law and, particularly, his landmark essay on “The Kantian Project and the Divided West – Does the Constitutionalization of International Law Still Have a Chance?” The essay constitutes the most elaborate contribution by Habermas on the challenges facing the international legal order today. While carefully unfolding his inquiry into the dynamics of international law within the current state of transatlantic relations and the role played by the United States in this and the global context, his essay has an objective beyond this. Habermas revisits Kant's concept of cosmopolitan citizenship and a world legal order, as elaborated in the essays “To Eternal Peace” and “Idea for a Universal History with Cosmopolitan Intent.” Habermas explores the chances of a revival Kant's thesis in a (post)-Kosovo and (post)-lraq Era of International Relations. Habermas' essay makes a number of poignant and provocative observations that have already been taken up in an increasingly global discussion.

My short intervention has two parts: First, I want to congratulate the team of the German Law Journal on ten years of successful work from the perspective of a German reader. Second, I want to praise the transnationalization of legal culture, the subject of this conference.

With a growing number of online services which aim to offer their product to a global audience, it becomes increasingly more important to keep informed about the rules and guidelines regulating this business within the countries of the targeted audience. The following article explains the main rules of liability for online services in Germany with special regard to the Telemedia Act.

On the 30 June 2009 the German Federal Constitutional Court (Bundesverfassungsgericht, FCC) has passed its long-awaited decision on the compatibility of the Act approving the Treaty of Lisbon and the accompanying legislation with the Basic law (Grundgesetz). The FCC's decision according to which the ratification law is compatible with the Basic law was greeted with relief by many German and European policy makers. It has removed another obstacle for the adoption of the Treaty of Lisbon in the European Union (EU), which still has to be ratified by Ireland, Poland and the Czech Republic, though. But also Germany's ratification still depends on the amendment of the accompanying “Act Extending and Strengthening the Rights of the Bundestag and the Bundesrat in European Union Matters” (“Extending Act”) which the FCC has declared incompatible with the Basic law insofar as the legislature, Bundestag and Bundesrat, have not been accorded sufficient rights of participation in European law-making and treaty amendment procedures. The FCC has therefore ruled that the Federal Republic of Germany's instrument of ratification of the Treaty of Lisbon may not be deposited as long as the constitutionally required legal elaboration of the parliamentary rights of participation has not entered into force. This puts pressure on German law-makers to amend the accompanying “Extending Act” possibly before the referendum in Ireland and before German elections in autumn 2009.

Until recently, Australia was firmly committed to the idea of higher education as a public good. The swing from social liberalism to neoliberalism has seen a rejection of this basic principle in favor of values associated with the market. Knowledge, education and credentialism have become highly desirable in the information age, but treating them as tradable commodities has profound repercussions for what is taught and how it is taught. Most significantly, we have moved to a mass education system where the focus is on applied and vocational knowledge. Within this new paradigm, law, business, information technology, hospitality and tourism courses have proliferated.

The 10th anniversary of the German Law Journal marks ten years of a seminal project to transform legal scholarship and adapt it to globalization.

As the transnational sphere becomes dominant, globalization means more than interdependence. It entails profound change to the academic systems as currently understood. These systems were formed in the nineteenth and early twentieth centuries as national institutions. Academics were (and often still are) public servants; future academics — particularly those representing the interests of the state in core areas like education, law, forestry, and theology — can only become public servants after they undergo state examinations. National institutions have financed academic scholarship in order to achieve effective administration, national fame, and economic profit. Accordingly, academic scholarship organized itself into national associations, nurtured national publication bodies, whose public voice spoke in the mother tongue. Certainly, international contacts were maintained with varying intensity, and comparative law has had an enduring and prominent history in many legal fields. However, these contacts had a national foundation that largely determined orientation, style, media, means, career and reputation. Under the bell jar of the nation state, national academic communities developed strikingly individual characteristics.

At the current stage of its evolution, the European Union (“Union” or “EU”) has reached a juncture where many leaders and scholars believe that greater integration is both desirable and necessary. Presumably, a primary method by which greater solidarity and integration can be achieved within the EU is through the public inclusion of common value-laden concepts – as defined through a dialectical process – present within comprehensive doctrines such as religion. To date, however, an effective and inclusive means for utilizing religion in this manner has yet to be formulated. In response, this article takes two prominent paradigms – Jurgen Habermas' intersubjective discourse theory and John Rawls' liberalism – to approach the problem and draws from them a new solution that, while tied to their theoretical underpinnings, is nonetheless a novel approach to achieving greater integration within the Union. Under this new framework, the process of legislatively defining human rights allows the morality common to European comprehensive doctrines – including official and unofficial religions – to bolster the Union's solidarity, legitimacy, and democracy both procedurally and substantively.

On 30 June 2009, the Second Senate of the German Federal Constitutional Court handed down its long-awaited decision on the compatibility of the Treaty of Lisbon with the German Constitution, the Basic Law. It was no surprise that the Court upheld the constitutionality of the treaty. Even the plaintiffs could not have imagined in their wildest dreams that the Court would actually say “no”. What is more than disturbing, however, is the tortuous way in which the Court's vast and verbose opinion purports to be justifying the approval of the treaty. There is probably no other judgment in the history of the Karlsruhe Court in which the argument is so much at odds with the actual result. To the point of perplexity and bewilderment, the reader of the opinion is hardly able to find any reasons supporting the outcome of the case. At the moment when the Court approves the most far-reaching revision of the European founding treaties since Maastricht, it does not present any serious argument supporting the conclusion it has reached, except sketchy evocations of a principle of “openness towards European law” it finds enshrined in the Basic Law and brief solemn reminders of a murderous past. Instead, the main thrust of the argument is a ringing indictment of European integration based on a certain idea of egalitarian and majoritarian parliamentary democracy that the Court derives from the Basic Law. Unfortunately, this standard of democratic legitimacy can only describe certain centralized states; it is unable to account for federal States, including Germany, and cannot be made to fit the federal system of the European Union.

It is no semantic accident that the word government derives from the Latin word, gubernare which means to steer or pilot a ship, and that gubernare derives from the Greek word for rudder, kybernaei. The ship as pictorial and linguistic metaphor for the state dates back to at least the fifth century B.C., when we find explicit reference to the “whole ship of the polis” in Aristophanes' (ca. 445–388 B.C.) play The Wasps, and seems to have maintained a place in the collective Western psyche throughout the millennia.

Social order is the telos of law and politics. This study will present Jürgen Habermas' thought on this topic as one of the most important of the last forty years. By collocating it within the broader discussion on social order, we will highlight the potential, but also some problems of his universalistic proposal in light of challenges at the outset of the 21st century. This article argues that Habermas' communicative paradigm provides a conceptual framework for a universal public law protecting peace and human rights in an effective and legitimate way. It can be understood as a regulative idea, guiding transformative work of scholars, politicians and lawyers, rather than as a theoretical instrument that conceptualises international law in its current institutional setting.

On 3 September 2008, the European Court of Justice (ECJ) handed down its long-awaited decision on the Kadi and Al Barakaat International Foundation where, setting aside the relevant judgments of the European Court of First Instance (CFI), the Court held that the Community judicature must ensure the full review of the lawfulness of all Community acts. This included those deriving from UN Security Council's resolutions, in the light of the fundamental rights as protected by Community law.

The aim of this article is to analyze the European approach to the protection of trafficking victims and evaluate its potential for success. In light of the Italian experience, I will try to demonstrate that the protection offered by European law is too narrow, and therefore bound to be ineffective. I also endeavor to show that offering protection to all trafficked persons, independent of their willingness to cooperate with the justice authorities, is necessary in order to protect the victims human rights, and also to ensure the full implementation of criminal law.