International law has come unstuck in time. It has gone to sleep stressing a normative future based on state “obligations owed towards all the other members of the international community,” and has awakened in a bygone world in which the state is “susceptible of no limitation not imposed by itself.” The opposing time zones seem now to exist in unison. Thus, for example, the European Court of Human Rights, in examining the impact of the Torture Convention, can split 9:8 on whether national self-interest trumps universal rules of cooperation, or the other way around. Likewise, England's House of Lords can opine in the Pinochet case that, as between a reinvigorated national jurisdiction and the developing concept of universal one, “international law is on the move.”

On 14 October 2004, the Bundesverfassungsgericht (BVerfG – German Federal Constitutional Court) voided a decision by the Oberlandesgericht (Higher Regional Court) Naumburg, finding a violation of the complainant's rights guaranteed by the Grundgesetz (German Basic Law). The Decision directly addresses both the observation and application of case law from the European Court of Human Rights under the Basic Law's “rule of law provision” in Art. 20.III. While there is a myriad of important aspects with regard to this decision, we may limit ourselves at this point to the introductory aperçu contained in the holdings of the case. One of them reads as follows:

The collapses of several US-businesses like those of Enron and Worldcom and a number of scandals in the EU – in the recent past that of Parmalat – have strongly affected public confidence in the operation and governance of large entities trading their shares in organized capital markets. The European Commission reacted by issuing the Action Plan on Modernizing Company Law and Enhancing Corporate Governance in the EU on 21 May 2003. The Action Plan contains measures which the Commission wants to implement over the short term (until 2005), medium term (until 2008) and long term (until 2010). The key issues set up in the Action Plan concern corporate governance, capital maintenance, recapitalization as well as decreasing capital, groups of companies, international corporate restructuring and the introduction of a new legal form of incorporation. The fact that the big rating agencies have begun to rate the corporate governance performances of major companies, can well be seen as a further indicator that good corporate governance has an important concern for managers, shareholders and for policy makers. As part of the Action Plan, the Commission has recently launched consultations on board responsibilities and improving financial and corporate governance information, on directors’ remuneration and on the role of (independent) non-executive or supervisory directors. In the light of these recent consultations and the results of the public consultation on the Action Plan, this Article offers an overview and assessment of the corporate governance measures planned at Community level.

In its most recent term, the United States Supreme Court heard a case arising out of the activities of a price-fixing cartel in the vitamins market. The defendants were a number of major international pharmaceuticals companies, including F. Hoffman-LaRoche, Rhone-Poulenc, Daiichi Pharmaceutical, and BASF, that had fixed prices for bulk vitamins and vitamin pre-mixes in markets around the world. The cartel, which has been described as “probably the most economically damaging cartel ever prosecuted under U.S. antitrust law,” is estimated to have affected over $5 billion of commerce worldwide. Previous proceedings against the participants in the cartel, initiated in Australia, Canada and the European Union as well as in the United States, included administrative investigations and criminal prosecutions of individual executives. In these various proceedings, the cartel participants were found to have violated antitrust laws in the United States and elsewhere, and were subjected to heavy – indeed, record – fines in many countries. By all accounts, the countries engaged in investigating and then prosecuting the cartel participants did so in full cooperation with each other. In particular, they made use of the mutual assistance and information sharing agreements that have become an important component of coordinated international antitrust enforcement.

To adequately assess the approach to European law in German jurisprudence is an impossible task to fulfill, yet one which is indispensable.

The impossibility of such an attempt becomes clear if one realizes the multitude and variety of courts and judicial procedures existing in the Federal Republic of Germany. Our present judicial system is composed of 1,162 national courts with a total of about 21,000 judges.1 Eight of these courts are federal courts, the others are courts of the Länder, i.e. of the sixteen Member States of the Federation.

Certain rulings of the World Trade Organization Appellate Body and recent EC Commission decisions on State aids have brought new attention on an old issue: States can use their tax systems to provide subsidies. The basic assumption against subsidies is that markets should not be distorted by government's intervention. However, a system of taxation without government is unthinkable. A different criterion must lead to the distinction of measures necessary to the effectiveness and fairness of the tax regime from tax measures that distort competition.

Nowadays, widespread consensus exists that the dramatic events of September 11, 2001 changed not only the country that suffered these attacks but also the way many in the West view the world outside this exclusive circle. For quite a number, it confirmed Huntington's thesis of a clash of civilizations – a vision of a future of ‘us’ versus ‘them'. But as the attackers were being identified, it became clear that in a sense they came from among us; although technically foreign nationals all, they lived and studied inconspicuously in western, multicultural societies. How are we then to deal with this enemy within? How is democracy to fight this so-called War on Terror and survive? Such questions are obviously not new. Bearing De Tocqueville's assertion in mind that a long war is not needed in order to put freedom at risk in a democratic society, this article, using the technique of a thought experiment, seeks to examine the increased prerogatives that governments – fearing the enemy within – have granted themselves in the realm of criminal law to deal with the perceived threat. This experiment will bring the reader, in a non-specialist way, from the criminal justice system of Germany to the possible role of an operational International Criminal Court, and from the criminal justice system of the United States to military tribunals as a means of dealing with what those in power claim is an extraordinary threat.

There are a myriad of avenues that could be taken by every person and organization each and every day. While perhaps opportunities should be taken advantage of, one must see the need. Some interests are not vital; whereas others are and should not be risked save in cases of grave necessity. And it is morally difficult to require heroism, such that some roads are not taken judiciously and others through lack of awareness or through the lack of requisite heroism.

[Editors’ Note: The 22 July 2004 acquittals of all six defendants in the criminal proceedings against former Mannesmann CEO, Klaus Esser; Deutsche Bank's CEO (Vorstandssprecher) and then Member of Mannesmann's supervisory board, Josef Ackermann, and other members of Mannesmann's Supervisory Board have, once more, highlighted to German, European and International observers the particular features of law and politics in “Germany Inc.”, “Rhenish Capitalism”, or “Rhineland Capitalism”. As begun in the aftermath of Josef Ackermann's inthronization at the head of Deutsche Bank and Ackermann's subsequent transformation of the Board's control structure, German Law Journal has published several contributions to the ongoing changes in German corporate governance and its embeddedness within the specific German economic and legal system. In his fine piece, Jürgen Hoffmann, Professor of Sociology in Hamburg, surveys the current interdisciplinary debate over the future fate of so-called Rhineland Capitalism and reconstructs Germany's recent history in an international context. In the next issue, to be published on 1 September 2004, Professor Christopher Allen of the University of Georgia will further deepen this inquiry and place the contemporary debate over the possible end of Rhineland capitalism in the historical context of Germany's development in the 20th Century. The Editors of German Law Journal are very pleased and honored to be able to provide for a further forum for this important debate, bringing together lawyers, economists, political scientists and sociologists, for a much needed exploration of the historical and political origins as well as of the legal framework of Germany's much critizised and, at the same time, ardently praised system of corporate governance and industrial relations. We invite our readers to contribute to this debate, which has so far found too little resonance in Germany itself. The Editors.]