Gender Equality in the Case Law of the European Court of Justice. IES WORKING PAPER 2/2009

The principle of gender equality forms a part of the EU’s social policy and serves equally men and women. So far, fourteen directives concerning gender equality have been adopted in the EU, with the New Equal Treatment Directive as the latest one. The EU has developed different models to promote gender equality: equal treatment, positive action and most recently gender mainstreaming. The equal treatment model is primarily concerned with formal equality and it unfortunately prevails in the ECJ’s rulings. Indeed, this paper argues that so far, the ECJ has not managed to develop a firm and consistent case law on gender equality, nor to stretch it coherently to positive action and gender mainstreaming. It seems that in spite of some progress in promoting the position of women, the ECJ’s case law has recently taken a step backwards with its conservative judgments in e.g. the Cadman case. Overall, this paper aims at summing up and evaluating the most important cases of the ECJ on gender equality.

Testing limited environmental liability against human rights requirements. IES WORKING PAPER 3/2009

Questions regarding oil spills remain high on the political agenda. Legal scholars, legislators as well as the international, European and national Courts struggle to determine key issues, such as who is to be held liable for oil spills, under which conditions and for which damage. The international regime on oil spills was meant to establish an “equilibrium” between the needs of the victims (being compensated for their harm) and the needs of the economic actors (being able to continue their activities). There is, however, a constantly increasing array of legal scholars’ work that criticizes the regime. Indeed, the victims of a recent oil spill, the Erika, have tried to escape the international regime on oil spills and to rely instead on the provisions of national criminal law or EC waste legislation. In parallel, the EC legislator has questioned the sufficiency of the international regime, as it has started preparing legislative acts of its own. One can in fact wonder whether challenging the international liability regime with the European Convention on Human Rights could prove to be a way forward, both for the EC regulators as well as the victims of oil spills. This paper claims that the right to property, as enshrined in Article P1-1 of the Human Rights Convention, could be used to challenge the limited environmental liability provisions of the international frameworks.

Is the EU’s Governance ‘Good’?: An assessment of EU governance in its partnership with ACP States. IES WORKING PAPER 1/2010

This paper examines both the processes and outcomes of governance in the context of the EU’s relationship with ACP States within the period of the Cotonou Agreement (CA). It discusses and assesses a variety of governance mechanisms, including the European Commission’s use of the governance concept, EPAs, manifestations of partner preferences, the EDF, the revision of the CA, and Fisheries Partnership Agreements. Specific examples of the wielding of each mechanism are assessed based upon two criteria: a) the extent to which the wielding of the mechanism by the EU is a manifestation of “good governance”, and b) the extent to which the EU’s wielding of the mechanism has resulted, or is likely to result, in the sustainable development of and reduction of poverty in ACP countries. The examples are chosen to illustrate contradictions between rhetoric and practice and the consequential negative (actual and potential) impact upon development in ACP States. The final section offers suggestions for improving the EU’s governance processes and their outcomes for development.

Identity Construction in Europe: A Discursive Approach. IES WORKING PAPER 2/2010

Proposing a discursive approach to studying identity, this paper presents Positioning Theory as a theoretical framework for conceptualizing the construction of identity in discourse. The Positioning Diamond is employed to analyse the discourse surrounding the Danish Euro referendum. The analysis reveals how identities are constructed in discourse that promotes a ‘yes’ or ‘no’ vote in the referendum, highlighting the generally implicit allocation of rights and duties to actors within a specific narrative context. The penultimate section discusses appropriate criteria for evaluating discursive accounts, distinguishing between cases in which truth, normative and ethical criteria are applicable. Finally, the paper concludes with a discussion of policy considerations and recommendations.

GATS and the Social Regulation of Services. IES WORKING PAPER 3/2010

Many service transactions are highly complex, and their quality is difficult to ascertain for consumers. In order to have properly functioning service markets, the services thus often require regulation. However, with the advent of the WTO, international trade in services has become increasingly rule-bound. GATS has considerable, intricate effects on social regulation due to the characteristics of services. The allocation of regulatory jurisdiction between home and host country, for example, is rendered difficult by the process-based nature of a lot of services. The WTO US – Gambling dispute settlement report is the first to address GATS disciplines on social regulation in a detailed manner. This working paper submits that the US - Gambling report has increased interference with domestic social regulation and created regulatory uncertainty for WTO members. However, it is also argued that the real impact of the GATS on social regulation can only be understood by looking beyond the text of the GATS. GATS disciplines may become amplified through their interaction with domestic and other international law. The GATS also contains some “political” counterbalancing mechanisms that allow members to renegotiate their commitments. It is argued that these political mechanisms strengthen subsidiarity in the GATS, and make WTO dispute settlement bodies accountable to WTO members.

The Budget of the European Union. IES WORKING PAPER 4/2010

This paper first provides a short history of the European budget, focusing on the development of the EU’s “own resources”. It then elaborates on the fundamental changes to the financial system and the budgetary procedure that the Treaty of Lisbon introduced. It is posited that with the amendments the budgetary process has lost clarity. Whilst the multiannual framework may provide for long-term stability, it stands in contradiction to a central principle of parliamentary democracy: annual budgets. The EU’s search for a fair and transparent budgetary system has not yet come to full fruition. Europe needs a fairer and more transparent system. Since the Luxembourg agreement of 1970, the Union has not done anything with the VAT as own resources. The VAT is related to the welfare standards and developments in the Member States. A fixed share of this indirect tax could form the base of a long term financing plan for the general EU budget.

From a European to a common security and defence policy. IES WORKING PAPER 5/2010

The Lisbon Treaty has introduced significant changes in the field of EU security and defence. On the one hand, important institutional reforms, such as the creation of a renewed High Representative, have of course a great impact on this policy field. On the other hand, the Lisbon Treaty has also introduced specific innovations in the security and defence of the European Union. The mutual defence clause and the new mechanisms for flexible cooperation such as the permanent structured cooperation, are only some of the key innovations. Generally, the European Security and Defence Policy receives its own section in the Treaty on European Union and is rebranded as Common Security and Defence Policy. Thus, the Lisbon Treaty sets the objective for a common policy in this field. However, does this reform really provide for the means for the realization of such a common policy? Furthermore, does the Lisbon Treaty increase the importance of CSDP or is the increasing importance of this policy field just reflected in the Treaty text? These are the main questions that the present paper attempts to address through the analysis of the new institutional setting of the post-Lisbon security and defence policy, as well as through the examination of the specific innovations in this area.

The relief of Vienna in vain. Assessing the Implications of Turkish EU-membership for Council of Ministers’ Decision-making. IES WORKING PAPER 1/2011

This research forecasts the implications of Turkish membership for decision-making effectiveness and dynamics within the Council of Ministers of the European Union (EU). Effectiveness is determined in this research by 'passage probability': the chance that a random proposal as put forth by the European Commission (EC) is accepted by the Council of Ministers. Dynamics are determined by means of the Shapley-Shubik Index (SSI), which plots power values of individual member states by forecasting a number of possible EU enlargement scenarios. This study falsifies earlier research by Baldwin and Widgrén.1 It finds that the implications of Turkish EU-membership for EU decision-making efficiency are ambiguous and depend on the number of other candidate states entering the EU alongside Turkey, as well as the timeslot - 2014 or 2020 - at which the accession would take place. Moreover, this study asserts that Turkish EU-accession would result in unequal- but generally negative - power changes among other EU member states, although member states with similar demographic weight will experience comparable changes. Finally, it appears that the larger a EU member state is, the more power it loses if Turkey would join the EU.

The European Commission and International Trade Negotiations: A Principal-Agent Approach. IES WORKING PAPER 2/2011

Starting from the concept of delegation of power in external trade policy, this paper aims to investigate the dynamics surrounding the European Union’s position in international trade negotiations. The analysis centres on the role of the European Commission (the agent), which by means of Treaty-based delegation and as mandated by the Council (the principal) acts as the sole trade negotiator in the international sphere on behalf of the European Union (EU). The broader negotiating process is thus conceptualised as a threelevel game, where the Commission holds an intermediary position between the European and international levels and also interacts with the Member States in the Council. After an insight into the European decision-making process for external trade, the paper further analyses the Commission’s role during the multilateral trade negotiations of the Doha Development Round. By applying the principal-agent theory to international trade negotiations in general, and subsequently to the controversial agricultural negotiations, this paper seeks to investigate some of the potential sources of autonomy that the Commission can draw upon while upholding an EU position at the international level, in addition to the “hardball” job of balancing the interests of the Member States with those of World Trade Organisation (WTO) partners. Along these lines, the paper finally aims to contribute to the literature concerning agency autonomy in EU external trade relations but also to provide a better understanding of inter-institutional relations within the EU as they may unfold in practice.

Answering the Call of the European Court of Justice in Eurofoods a Proposed Package of Due Process Rights with a View Toward the 2012 Revision of the European Insolvency Regulation. IES WORKING PAPER 3/2011

This paper anticipates the 2012 revision of the European Insolvency Regulation, which is the sole Union legislation on the subject of cross border insolvency proceedings. The paper first describes the historical background of the Regulation. The salient point of the historical discussion is that the Regulation is the product of forty years of negotiation and arises from a historical context that is no longer applicable to current economic realities, i.e. it provides for liquidation, not reorganization, it doesn’t deal with cross border groups of companies, and it lacks an effective mechanism for transparency and creditor participation. The paper then reviews the unique hybrid jurisdictional system of concurrent universal and territorial proceedings that the Regulation imposes. It looks at this scheme from a practical viewpoint, i.e. what issues arise with concurrent proceedings in two states, involving the same assets, the same creditors, and the same company. The paper then focuses on a significant issue raised by the European Court of Justice in the Eurofoods case, i.e. the need to comply with fundamental due process principles that, while not articulated in the Regulation, lie at the core of Union law. Specifically, the paper considers the ramifications of the Court’s holding that “a Member State may refuse to recognize insolvency proceedings opened in another Member State where the decision to open the proceedings was taken in flagrant breach of the fundamental right to be heard.” In response to the Court’s direction, this paper proposes a package of due process rights, consisting principally of an accessible, efficient and useful insolvency database, the infrastructure of which already exists, but the content and use of which has not yet been developed. As part of a cohesive three part due process package, the paper also proposes the formation of cross border creditors' committees and the establishment of a European Insolvency Administrator. Finally, on the institutional level, this paper proposes that the revision of the Regulation and the development of the insolvency database not only need to be coordinated, but need to be conceptualized, managed and undertaken, not as the separate efforts of diverse institutions, but as a single, unified endeavor.

Law and Foreign Direct Investment. IES WORKING PAPER 4/2011

In this paper we examine the effect of law on foreign direct investment outflows with a specific interest in the relationship between international investment law and domestic private property laws. Our results indicate that FDI investor is indifferent to host country property rights, hence shareholder protection by law is not a significant determinant of FDI outflows. We argue that FDI, in contrast with other types of capital flows, can effectively mitigate the agency problem through majority ownership and control, hence reduce exposure to ex-post expropriation by the affiliate. On the other hand, FDI investor remains exposed to risk of expropriation by the host government and is strongly sensitive to the enforcement of law in the host country. In contrast with recent literature we conclude that there are no causal relationship between bilateral investment treaties and FDI.

Dispute Settlement Alternatives in Future EU BITS. IES WORKING PAPER 1/2012

Following the inclusion of the Common Commercial Policy in the exclusive competences of the European Union, a handful of policy adjustments have occurred. Among these adjustments, investment protection has been a remarkable one - given its new, exclusive framework and an already established, state-level practice. As the new policy stands, Bilateral Investment Treaties, which had been negotiated and executed by the EU Member States in the pre-Lisbon period, can now only be negotiated and executed by the EU. These prospective ‘EU BITs’, inter alia, aim for an even stronger mechanism for the protection of investors both in the EU and in third states. A strong protection mechanism inevitably calls for a strong Dispute Settlement Mechanism, and the establishment of a DSM may prove to be challenging. The EU currently faces several questions on its path to a tangible and reliable ‘EU BIT’, and arguably the most outstanding one is the question of the DSMs to be incorporated in these new agreements. What are the alternatives of a DSM for these new BITs? Which alternatives are currently utilizable and which ones are not? What are the current problems that the EU face, and how can those problems be tackled? Is the International Centre for Settlement of Investment Disputes an alternative, and if not, why? Following a thorough overview, this paper aims to analyse the DSM alternatives for the EU to be used in the new EU BITs and ultimately provide a solid DSM proposal.

The Arms Trade Treaty and the Control of Dual-Use Goods and Technologies. IES WORKING PAPER 1/2013

This paper seeks to delineate some preliminary factors and working methods that could work in favour of establishing a workable international export control regime for dual-use goods and technologies. Drawing on the work initiated by various United Nations initiatives and the Wassenaar Agreement, but specifically looking at the European Union export regime model, this working paper asks if and how a similar model could be adopted at the international level. Far from suggesting that the EU regime should of could be adopted on a global basis or that the regime is full-proof, the authors acknowledge that EU regulations are seen as among the most stringent of frameworks on dual-use goods and technologies available. Accordingly, this paper asks what elements of the EU’s control regime could be of international benefit after the ATT negotiations and how it could be adopted on a more international basis. Indeed, any future ATT control mechanism for dual-use items will have to draw on existing arms transfers and control regimes. It does this through an analysis of the ATT and the current discourse on dual-use goods and technologies in the negotiations, an stocktaking of the strengths and weaknesses of the EU’s export control regime and by asking what elements of the EU’s regime could be utilised for international control mechanisms after a future ATT is negotiated.

Coalitions, Power and Institutional Change in Global Patent Politics. IES WORKING PAPER 2/2013

With the 1995 Agreement on Trade - related Aspects of Intellectual Property Rights (TRIPS), a centralised rule - system for the international governance of patents was put in place under the general framework of the World Trade Organisation (WTO). Since then, the number of patent – related institutions has increased monotonically on the multilateral, plurilateral and bilateral levels. I will explain this case of institutional change by focusing on the norm – setting activities of both industrialised and developing countries, arguing that both groups constitute internally highly cohesive coalitions in global patent politics, while institutional change occurs when both coalitions engage in those negotiating settings in which they enjoy a comparative advantage over the other coalition. Specifically, I make the point that industrialised countries’ norm – setting activities take place on the plurilateral and bilateral level, where economic factors can be effectively translated into political outcomes while simultaneously avoiding unacceptably high legitimacy costs; whereas developing countries, on the other hand, use various multilateral United Nations (UN) forums where their claims possess a high degree of legitimacy, but cannot translate into effective political outcomes. The paper concludes with some remarks on how this case yields new insights into ongoing debates in institutionalist International Relations (IR), as pertaining to present discussions on “regime complexity”.

EU Enlargement: Lessons from, and Prospects for. IES WORKING PAPER 3/2013

In 2009 the European Union (EU) reached a crucial moment in its history, in which the terms Europe and crisis became conjoined: the European sovereign-debt crisis, or Euro-crisis. Yet enlargement remains on the agenda, with the EU’s next enlargement starting on 1st July 2013 with the accession of Croatia, Iceland and FYROM looking set to follow in the near future, and probably other Western Balkan states and possibly Turkey in the long term. Enlargement therefore will soon come back into focus. Focusing on climate and energy security policy, this working paper first reflects upon the impact of the 2004/2007 enlargement on the EU. A reflection on the EU’s recent past with some of the lessons that can be learnt then follows, with a consideration that predictions of decision- and policy-making gridlock were not realised, that newer member states have proved influential, and that prospective member states cannot be expected to be passive nor impotent. The latter part of this paper evaluates the potential prospects and outcomes of these lessons with regard to future enlargement from within (Scotland and Catalonia), and without (Turkey), and the political factors which may dictate whether these possible enlargements are realised.