This article seeks to explore the way in which the Court of Justice of the European Union (‘CJEU’) has interpreted and applied the principle of democracy. It examines first the democratization process upon which the EU has embarked since the adoption of the Treaty of Maastricht and how that transformation was a positive reaction to those voices arguing that the EU suffers from a ‘democratic deficit’. Next, it is argued that the CJEU has understood the principle of democracy in a way which is respectful of the two sources of democratic legitimacy at EU level, namely the Member States and the peoples of Europe. Accordingly, that understanding of the principle of democracy is illustrated by some relevant examples taken from the case law of the CJEU and the European General Court (‘EGC’). Those examples show that the CJEU has strived to protect the prerogatives of the European Parliament, the only political institution of the EU whose members have, since 1979, been elected for a term of five years by direct universal suffrage in a free and secret ballot. Yet, they also show that the principle of democracy is not limited to protecting parliamentary prerogatives. That principle, like all EU constitutional principles, pervades the whole of EU law and, as such, must be read in light of societal changes. As democracy within the EU is not limited to the participation by the European Parliament in the legislative process but also encompasses other forms of governance, in particular rule-making by administrative agencies and the achievement of consensus by social partners, it is for the EU judiciary to make sure that those other forms of governance remain as democratic as possible. This can be achieved, inter alia, by making sure that they enjoy sufficient representation or are subject to parliamentary control. Furthermore, the CJEU and the EGC also take into account new mechanisms which seek to strengthen the principle of democracy, such as the principle of transparency. In so doing, they aim to enhance the democratic legitimacy of the EU by providing sufficient means for EU citizens to hold their representatives accountable. Finally, it is contended that the principle of democracy, as interpreted by the CJEU, draws inspiration from national democracies. In so doing, the CJEU strives to place national and supranational democracies in a mutually reinforcing relationship.

The debate on the recognition of Indigenous Australians in the Australian Constitution is more about how, than whether, this should occur. The two main proposals involve the use of a preamble. One proposes symbolic recognition in a new constitutional preamble with a clause prohibiting use of the preamble in constitutional interpretation. The other would give Parliament power to make laws with respect to Indigenous Australians, but qualify it in a preamble so that it could only be exercised for their ‘advancement’. This article draws on comparative experience of the use of preambles in other common law countries to challenge the assumptions underlying each proposal.

The article analyses the trends in continental shelf boundary agreements that extend beyond 200 nautical miles. The focus is on three issues: first, the delimitation method; second, whether States have acted on the basis that they have to delineate the limits between the continental shelf beyond 200 nautical miles and the international seabed area before they engage in a boundary delimitation with neighbouring states; and third, how the end point of the boundary line has been defined. The goal of the analysis is to find out whether any rule of customary law has emerged which seems not to be the case.

In both the EU and the WTO there are currently pending cases on the legality of EU Regulation 1007/2009 on trade in seal products and its Implementing Regulation 737/2010. While seals seem to be very attractive to the public so that raising arguments against these EU measures are not popular, the Regulations do raise concerns about competences, subsidiarity and proportionality which are relevant for compliance with EU primary law. They also raise concerns about possible protectionism, the use of public morals, coherence and necessity with regard to compatibility with WTO law. This paper seeks to examine all these issues.

This article examines UNCITRAL's draft Rules for Online Dispute Resolution (ODR) and argues that in low-value e-commerce cross-border transactions, the most effective consumer protection policy cannot be based on national laws and domestic courts, but on effective and monitored ODR processes with swift out-of-court enforceable decisions. The draft Rules propose a tiered procedure that culminates in arbitration. Yet, this procedure neither ensures out-of-court enforcement, nor does it guarantee compliance with EU consumer mandatory law. Accordingly, this article argues that the draft Rules may be inconsistent with the European approach to consumer protection.

This article investigates what effects a recognized foreign judgment in civil and commercial matters has in English proceedings. Does the judgment have the effects that it has in the foreign country (extension of effects) or the effects that a comparable English judgment would have (equalization of effects), or a combination of these? After a review of the current law, it will be discussed what approach is preferable on principle. The suggested approach will then be illustrated by considering whether a foreign decision on one legal basis of a certain claim ought to preclude English proceedings involving another legal basis of the same claim. Finally, it will be discussed whether and how the effects of a recognized foreign judgment in England are affected by interests of a third country.

This article analyses the relationship of the proposed Common European Sales Law (CESL) and the rules on mandatory and overriding provisions in private international law. The author argues that the CESL will not achieve its stated aim of taking precedence over these provisions of national law and therefore not lead to an increase in cross-border trade. It is pointed out how slight changes in drafting can overcome the collision with mandatory provisions. The clash with overriding mandatory provisions, the author argues, should be taken as an opportunity to rethink the definition of these provisions.

Following on from its judgment in Akzo Nobel,1 the Court of Justice of the European Union (CJEU) on 6 September 2012 delivered its judgment in Prezes.2Prezes expanded the decision in Akzo Nobel, which held that communications between a client and its in-house legal counsel were not protected by legal privilege because the latter are not considered sufficiently independent from the former. Taking this holding one step further, the CJEU in Prezes held not only that corporations are unable to benefit from legal privilege regarding communications with their in-house counsel, but also that any lawyer in an employment relationship with its client is disqualified from representing their client before the CJEU. This article criticizes this holding and argues that the CJEU's interpretation of independence does two things: (1) unreasonably expands the scope of Akzo Nobel to include the representation of in-house counsel in all cases; and (2) does so in a way which is inconsistent in light of similar concerns of the independence of government lawyers, who seemingly maintain their right of privilege under the judgment.

The relationship between EU law and international law has, again, recently occupied the European Court of Justice with respect to the compatibility of the EU Treaty with international obligations. It will be recalled that in the Kadi judgment1 the Court examined whether adoption of a UN Resolution in the form of a Council Regulation2 which, prima facie, restricted the fundamental rights of Kadi was congruent with principles of EU law. In Kadi, the Court, adopting a constitutionalist position with regard to the protection of fundamental rights, held that protecting the applicant's fundamental rights under the Treaty was a priority which could not be diminished, even when the EU was implementing a UN Resolution into EU law. Thus, in Kadi, the Court concluded that providing clear fundamental rights safeguards through judicial review of the Regulation was a fundamental principle of EU law. To this extent, the Court was only prepared to accept compliance with internal obligations if they were harmonious with principles of fundamental rights norms, as understood through the case law of the Court.