With or without you...judging politically in the field of Area of Freedom, Security and Justice? Research Papers in Law, 3/2007

From the Introduction. The study of the European Court of Justice’s (ECJ) case law of the regarding the Area of Freedom Security and Justice (AFSJ) is fascinating in many ways.1 First, almost the totality of the relevant case law is extremely recent, thereby marking the first ‘foundational’ steps in this field of law. This is the result of the fact that the AFSJ was set up by the Treaty of Amsterdam in 1997 and only entered into force in May 1999.2 Second, as the AFSJ is a new field of EU competence, it sets afresh all the fundamental questions – both political and legal – triggered by European integration, namely in terms of: a) distribution of powers between the Union and its member states, b) attribution of competences between the various EU Institutions, c) direct effect and supremacy of EU rules, d) scope of competence of the ECJ, and e) measure of the protection given to fundamental rights. The above questions beg for answers which should take into account both the extremely sensible fields of law upon which the AFSJ is anchored, and the EU’s highly inconvenient three-pillar institutional framework.3 Third, and as a consequence of the above, the vast majority of the ECJ’s judgments relating to the AFSJ are a) delivered by the Full Court or, at least, the Grand Chamber, b) with the intervention of great many member states and c) often obscure in content. This is due to the fact that the Court is called upon to set the foundational rules in a new field of EU law, often trying to accommodate divergent considerations, not all of which are strictly legal.4 Fourth, the case law of the Court relating to the AFSJ, touches upon a vast variety of topics which are not necessarily related to one another. This is why it is essential to limit the scope of this study. The content of, and steering for, the AFSJ were given by the Tampere European Council, in October 1999. According to the Tampere Conclusions, the AFSJ should consist of four key elements: a) a common immigration and asylum policy, b) judicial cooperation in both civil and penal matters, c) action against criminality and d) external action of the EU in all the above fields. Moreover, the AFSJ is to a large extent based on the Schengen acquis. The latter has been ‘communautarised’5 by the Treaty of Amsterdam and further ‘ventilated’ between the first and third pillars by decisions 1999/435 and 1999/436.6 Judicial cooperation in civil matters, mainly by means of international conventions (such as the Rome Convention of 1981 on the law applicable to contractual obligations) and regulations (such as (EC) 44/20017 and (EC) 1348/20008) also form part of the AFSJ. However, the relevant case law of the ECJ will not be examined in the present contribution.9 Similarly, the judgments of the Court delivered in the course of Article 226 EC proceedings against member states, will be omitted.10 Even after setting aside the above case law and notwithstanding the fact that the AFSJ only dates as far back as May 1999, the judgments of the ECJ are numerous. A simple (if not simplistic) categorisation may be between, on the one hand, judgments which concern the institutional setting of the AFSJ (para. 2) and, on the other, judgments which are related to some substantive AFSJ policy (para. 3).

The importance of International Developments in the case-law of the European Court of Justice: Kadi and the autonomy of the EC legal order. Research Papers in Law, 1/2009

From the Introduction. In the USA, the debate is still ongoing as to whether and to what extent the Supreme Court could or should refer to foreign precedent, in particular in relation to constitutional matters such as the death penalty.1 In the EU, in particular the recent Kadi case of 20082 has triggered much controversy,3 thereby highlighting the opposite angle to a similar discussion. The focus of attention in Europe is namely to what extent the European Court of Justice (hereafter “ECJ”) could lawfully and rightfully refuse to plainly ‘surrender’ or to subordinate the EC legal system to UN law and obligations when dealing with human rights issues. This question becomes all the more pertinent in view of the fact that in the past the ECJ has been rather receptive and constructive in forging interconnectivity between the EC legal order and international law developments. A bench mark in that respect was undoubtedly the Racke case of 1998,4 where the ECJ spelled out the necessity for the EC to respect international law with direct reference to a ruling of the International Court of Justice. This judgment which was rendered 10 years earlier than Kadi equally concerned EC/EU economic sanctions taken in implementation of UN Security Council Resolutions. A major question is therefore whether it is at all possible, and if so to determine how, to reconcile those apparently conflicting judgments.

EU-Turkey Relations: Turning vicious circles into virtuous ones. CEPS Policy Brief No. 317, 26 March 2014

The coming weeks and months will be decisive for the general tenor of politics in Turkey. The country faces local elections this March, presidential elections in August and general elections next June, while top-level political scandals compound the deterioration in the state of democracy and rule of law. At the same time, stagnation in Turkey’s accession process continues to sour relations with the EU. In this new Policy Brief, Steven Blockmans puts forward a number of recommendations to help drive the EU accession process forward, namely the early opening of negotiation chapters 23 (judiciary and fundamental rights) and 24 (justice, freedom and security), in line with the EU’s so-called New Approach. In that way reform could not just be assured on paper, but a track record in implementation could be established throughout the process. To achieve this, member states, and Cyprus in particular, need to be persuaded to end their opposition to formulating benchmarks for the opening of accession negotiating chapters 23 and 24.

Turkey votes: Part II - Erdoğan reloaded. EPC Commentary, 3 April 2014

On 30 March, Turkey’s ruling Justice and Development Party (AKP) scooped a significant victory in local elections, taking almost 44 percent of the vote despite accusations of corruption, undermining the rule of law, fundamental rights and freedoms. While there have been claims of election fraud and the main opposition party, the Republican People’s Party (CHP), has demanded recounts in several cities including Istanbul and Ankara, it is clear that even allowing for some level of fraud the win was substantial and more than most people expected. Prime Minister Recep Tayyip Erdoğan has reached a juncture. He has two choices: return to the path of democracy after a period of democratic back-sliding which included passing several controversial reforms such as a new internet law which led to the recent banning of Twitter and Youtube; or alternatively he can forge ahead with his much talked of revenge campaign against those he has accused of creating a “parallel state” and conspiring to remove him from power. Given that Erdoğan viewed this election as a referendum on his popularity and leadership there is a serious risk that he will do the latter; using the significant mandate given to him to do whatever he wants, including further cracking down on democracy.

Why the EU must reengage with Turkey. EPC Commentary, 29 September 2014

Democratic values and basic rights in Turkey are hanging by a thread. Over the past eighteen months the rule of law, civil liberties and freedoms have been eroded which has left many Turks anxious over the direction in which their country is heading. With Turkey’s accession negotiations de facto frozen, the EU finds itself with little leverage over Ankara. Calls of concern have fallen on deaf ears as Turkey’s leadership has become increasingly belligerent, with its EU related narrative overflowing with resentment. Because Turkey’s accession negotiations are irreversibly intertwined with Turkey-EU cooperation in other areas, this has had a negative impact on the broader relationship between both sides. Recent examples include the issue of foreign fighters traveling from Europe to Syria via Turkey. Each side has accused the other of not doing enough to stem the flow. Likewise, following the decision of Russian President, Vladimir Putin, to ban the import of agricultural goods from countries that have placed sanctions on Moscow, the EU asked Turkey to demonstrate solidarity, as a “candidate country”, and not to increase exports of agricultural products to Russia. Turkey rejected this request and is reportedly working on strengthening trade ties with Moscow. Turkey remains an important partner in a number of key areas including trade, energy, foreign and security policy and migration. At a time when the EU faces crises in both its Eastern and Southern neighbourhoods, a reliable and predictable Turkey, with which it can cooperate in the Black Sea and Middle East neighbourhoods is crucial. Hence the vision and plans of the EU’s new leadership, in particular new Foreign Policy Chief, Federica Mogherini, and Commissioner for European Neighbourhood Policy and Enlargement Negotiations, Johannes Hahn, how to shape relations with Ankara is particularly significant. The Union’s current policy is counterproductive and is further eroding trust and cooperation rather than enhancing it. It needs to be turned around.

Unfair Advantage: An Intriguing Example of Legal Transformation in the Swiss Private Law

This paper demonstrates a mixed approach to the theme of the instrumentality of law by both analysing the goal of a legal transformation and the techniques adapted to achieve it. The correct recognition of a certain practical necessity has lead the Swiss Federal Tribunal to an intriguing judgement “Fussballclub Lohn-Fall” of 1997. The legal remedies provided for cases of unfair advantage have been then creatively modified praeter legem. The adaptation was strongly influenced by foreign legal patterns. The Swiss Code of Obligations of 1911 provides a norm in art. 21 on unfair advantage (unconscionable contract), prescribing that if one party takes unjustified advantage over the weaknesses of another in order to receive an excessive benefit, such a contract is avoidable. Its wording has been shaped over a hundred years ago and still remains intact. However, over the course of the 20th century the necessity for a more efficient protection has arisen. The legal doctrine and jurisprudence were constantly pointing out the incompleteness of the remedies provided by art. 21 of the Code of Obligations. In the “Fussballclub Lohn-Fall” (BGE 123 III 292) the Swiss Federal Tribunal finally introduced the possibility to modify the contract. Its decision has been described as “a sign of the zeitgeist, spirit of the time”. It was the Swiss legal doctrine that has imposed the new measure under the influence of the German “quantitative Teilnichtigkeit” (quantitative partial nullity). The historical heritage of the Roman laesio enormis has also played its role.

Prospects in International Investment Law and Policy: World Trade Forum

The negotiation of a patchy but burgeoning network of international investment agreements and the increasing use to which they are put is generating a growing body of jurisprudence which, while still evolving, requires closer analytical scrutiny. Drawing on many of the most distinguished voices in investment law and policy, and offering novel, multidisciplinary perspectives on the rapidly evolving landscape shaping international investment activity and treaty-making, this book explores the most important economic, legal and policy challenges in contemporary international investment law and policy. It also examines the systemic implications flowing from frenetic recent judicial activism in investment matters and advances several innovative propositions for how best to promote greater overall coherence in rule-design, treaty use and policy making and thus offer a better balance between the rights and obligations of international investors and host states.

Legal decisions of common law of the United States.

Addressed to Elder Otis Sawyer; concerning legal rights and obligations of trustee or agent for the Shaker community.

Ottoman commercial code : with appendix thereto, the Protests law, 1886, the Bankruptcy rules, 1894, and with notes, etc.) /

Includes bibliographical references (p. xvii) and index.

A Digest of English civil law /

Includes index.

Party of workmen at work at rear of the temple [Excavation at Antioch of Pisidia in Turkey]

George R. Swain photograph no.1550 Near East Research

The law of torts,

"This edition (the 7th) ... is produced as a companion volume to the latest edition (the 17th) of 'Chitty on contracts', the combined treatises forming a compendious statement of the various legal obligations arising ex delicto and ex contractu."--p. [iii]

Conflicting obligations: Pufendorf, Leibniz and Barbeyrac on civil authority

Barbeyrac's republication of and commentary on Leibniz' attack on Pufendorf's natural-law doctrine is often seen as symptomatic of the failure of all three early moderns to solve a particular moral-philosophical problem: that of the relationship between civil authority and morality. Making use of the first English translation of Barbeyrac's work, this article departs from the usual view by arguing that here we are confronted by three conflicting constructions of civil obligation, arising not from the common intellectual terrain of moral philosophy, but from divergent religious and political cultures. If this approach makes the three constructions less susceptible to theoretical reconciliation, then it opens them to a more revealing historical investigation, in terms of the particular religious and political circumstances in which they arose, and which they were designed to address. The result is that these early modern struggles over the nature of civil obligation confront us again as unfinished historical business.