Is the procedural autonomy of EU Member State a myth or a reality? What should this concept be taken to mean? Starting from the analysis of requirements and principles regulating, generally speaking, the relationships between Member States' and EU law, this book provides a definition of procedural autonomy able to account for the concept's inherent limits. Out of an analysis of the more relevant EU jurisprudence, the author identifies the rationale underlying the interventions of the ECJ on issues of procedural autonomy and the common logic that emerges from it; and reveals how, in an unchanged context of 'procedural autonomy' of the Member States, national procedural law becomes more and more 'functionalized' to the requirements of effectiveness of substantive EU law. As such, we should speak of a 'functionalized procedural competence' rather than of procedural autonomy. But this is by no means a case of "Paradise Lost." The book includes a foreword by Prof. Jurgen Schwarze, one of the founding fathers of European Administrative Law.

In various European countries such as France, Italy, and the Netherlands, lawmakers have adopted legislation in order to deal with the consequences of the economic crisis. These laws contain provisions aimed at speeding up administrative decision making and judicial proceedings which have an impact on various provisions of general administrative law. Alongside the aim of facing the economic crisis, these measures aim to make administrative law more up-to-date and ensure it meets the needs of contemporary society.However, acceleration measures concerning decision-making and judicial proceedings may clash with the need to preserve the quality of these proceedings. On the one hand, swift procedures can be considered to be one aspect of high-quality decision making. On the other hand, other aspects of quality such as public participation and the thorough consideration of all relevant aspects and interests, may be at risk when the speed of decision-making is the only focus of reforms.Quality and Speed in Administrative Decision-Making: Tension or Balance? presents six national perspectives on these issues, together with a comparative overview comparing and contrasting national approaches with regards to finding a balance between the pace of proceedings and the quality of administrative and judicial decisions.The book will be of interest to academics of European and comparative administrative law, as well as policy-makers at the national and European level.

A book series devoted to the common foundations of the European legal systems, the Ius Commune Europaeum series includes comparative legal studies as well as studies on the effect of treaties within national legal systems. All areas of the law are covered. The books are published in various European languages under the auspices of METRO, the Institute for Transnational Legal Research at Maastricht University.This book contains an empirical study of the converging effects of the harmonisation policies used by the European lawmaker in consumer sales law. It aims to fill a gap in existing literature, by looking at what European consumer sales law harmonisation has achieved and by developing a methodology to measure the convergence it has led to. The work encompasses both a substantive comparison as well as a numerical approach.While in the former, five directives and their subsequent transposition in the national laws of Member States are analysed, the latter focuses on the creation of the Convergence Index as a measurement tool for the effects of the harmonisation process. The book will be useful to both academics as well as policy makers, as it aims to trigger further debate regarding benchmarking in European consumer law. Such debate will play a role in further academic research aimed at determining whether harmonisation does indeed strengthen the internal market.Catalina Goanta has conducted her doctoral research at the Maastricht European Private Law Institute (Maastricht University) under the supervision of Jan Smits and Caroline Cauffman, funded by the HiiL-UM Chair on the Internationalisation of Law.

The ongoing debate on the harmonisation of European contract law has metamorphosed into an important recognition: that none of the existing national systems of contract law, even the most 'modern,' have been able to keep pace with the extensive and radical changes in the world which contract law must reflect. The nineteen outstanding contributors to this deeply insightful book concur in envisioning a fundamentally new systematic concept of contract law that, while preserving the essential 'architecture' of the existing European codes, would nonetheless find cogent ways to integrate such modern developments as mass transactions, chains and networks of contracts, regulation of markets and contracts to protect consumers, and service and long-term contracts into an optional European code. The book is organised along three major avenues: the systematic arrangement of a contract law code - how it deals with core questions of formation and performance or breach of contract, such as mistake and misrepresentation, standard contract terms, and remedies in the case of breach of contract; the apparent necessity to merge consumer contract law (i.e., such issues as product safety and liability, warranties, and consumer debt and insolvency) with traditional core contract law concepts; and, the importance to substantive contract law of the pre-contractual phase, in which information duties are becoming steadily more paramount. The authors' perspectives cover a wide range of jurisdictions, including new EU Member States. The book's overall commitment to an integration of comparative law, EC law, and the debate on European codification gives it both an authority and an immediacy that offer interested practitioners and academics fertile ground for the development of a new model of contract law that is more than a common denominator of what has been in force so far, a model which might serve as a basis for Europe-wide and perhaps even worldwide discussion.

This book examines the way in which judges in the top courts of nine different common law countries go about developing the law by devising new principles to allow themselves to be innovative and justice-oriented, and to ensure that human rights are universally protected.
The book surveys the decisions of these top courts over the last generation to determine how 'judicially active' they have been. It seeks to compare and contrast the different experiences and to identify the principles in accordance with which the various courts have decided to develop the law. How do they interpret legislation? What use do they make of standards derived from other countries or from international law? How willing are they to make law in areas which are traditionally the preserve of elected politicians?
The contributors are all experts in their own jurisdictions and have already published widely in the field of judicial activism. The jurisdictions covered include Australia, Canada, India, Ireland, Israel, New Zealand, South Africa, the United Kingdom and the United States. The chapter on the judicial work of the House of Lords anticipates the transformation of that institution into the Supreme Court of the United Kingdom in 2009 and the book as a whole suggests that there is plenty of scope for that new court to learn from other common law supreme courts about the appropriate limits of judicial creativity.

Thirty years after the entry into force of the Directive on liability for defective products (Council Directive 85/374/EEC), and in the light of the threat to user safety posed by consumer goods that make use of new technologies, it is essential to assess and determine whether the Directive remains an adequate legal response to the phenomenon of products brought to market that fail to ensure appropriate levels of safety for their users.European Product Liability is the result of an extensive international research project funded by the Polish National Science Centre. It brings together experienced scholars associated with the European Group on Tort Law (EGTL) and the European Research Group on Existing EC Private Law (Acquis Group). Individual country reports analyse the implementation of the Directive in the domestic law of several EU and EEA Member States (namely Austria, Czech Republic, Denmark, England, France, Germany, Italy, Netherlands, Norway, Poland, Spain, and Switzerland) and the relationship of the implemented rules with the already existing rules of tort law. The country reports show that the practical significance of product liability differs widely in the various Member States. Also taking into account non-EU countries (Canada, Israel, South Africa and the USA), this book examines whether EU law will ensure sufficient safety for individuals using goods that have been produced using new technologies that are currently under development, such as major advances in mechatronics, nanotechnology, regenerative medicine and contour crafting. Together with an economic analysis of product liability it makes the book valuable for academics, practitioners, policy makers and all those interested in the subject.

This edited volume examines two recent Central European recodifications of civil law. The contributors present and discuss the regulation and the fundamental changes related to the new Civil Codes in each country. They also highlight the novelties and some of the issues of great debate of the new regulation. The papers investigate specific parts of the two Civil Codes. Coverage reviews default rules of legal persons and companies, key issues of the new regulations of property law, and the topic of intellectual property. The contributors also consider the law of obligation, unforeseeable changes in circumstances in contracts, family law and law of succession, and more. Hungary and Romania connect to each other by their special historical and cultural background, which serves as a solid basis of great cooperation. This volume shows how the two countries view civil law. It offers readers straightforward and practice-oriented knowledge on the subject.

Choice of law determines which national legal system applies to an international case. Currently many choice of law rules in the field of family law are regulated by national law. However, these national rules of the EU Member States are more and more displaced by common European rules. This book describes the changes brought by the Europeanisation of the choice of law on divorce. From the conclusions drawn in the field of divorce the concluding chapter discusses the changes of Europeanisation of international family law in a broader perspective.

Subrogation means literally 'substitution'. The word is used in the context of English and Commonwealth law to denote a process by which one party is substituted to the position of another, that he may pursue that other's rights against a third party. This book seeks to rationalize the position of the doctrine of subrogation in the law of restitution. Within a systematic analytical framework, it gives a full account of the developing English and Commonwealth law of subrogation, and a selective use is also made of United States decisions. A number of false assumptions which have entered the case-law are exposed, and the principles upon which subrogation should be awarded are set on a regular basis. Subrogation is a remedy which can be awarded in many different contexts, and this definitive account will be useful not only to restitution lawyers, but also to academics and practitioners concerned with the law of property, family law, and commercial law (in particular, the law of insurance, bills of exchange, and principal and surety). This work provides a careful and thorough examination of the law of subrogation as it operates in English law today and as such it will be of invaluable assistance to all commercial lawyers.

A book series devoted to the common foundations of the European legal systems. The Ius Commune Europaeum series includes comparative legal studies as well as studies on the effect of treaties within national legal systems. All areas of the law are covered. The books are published in various European languages under the auspices of METRO, the Institute for Transnational Legal Research at Maastricht University.This book examines the regulation of the inter-provincial establishment of companies in China and the EU regulation of the cross-border establishment of companies from the perspective of comparative law and economics. Part I of this book discusses the rules governing inter-provincial establishment in China and examines their implementation, with a focus on revealing the barriers to this activity. This part also analyses the evolution of the EU internal market and shows how the EU regulates the cross-border establishment of companies. Subsequently, Part II presents an economic analysis of the regulation of the crossborder establishment of companies in a multi-level jurisdiction. In Part III, the regulation of the inter-provincial establishment of companies in China is reviewed in the light of the economic literature. With the aim of examining whether China can learn something from the EUs experience with market integration, Part III also analyses the differences between the regulation of the inter-provincial establishment of companies in China and the EU regulation of the cross-border establishment of companies.This book offers a thorough analysis of the regulation of business establishment in China and, more generally, the law and economics literature on business licensing. Therefore, it is of interest for law and economics scholarship, companies doing business in China and policy makers responsible for regulating business establishment.

'A leading figure in critical legal studies and renowned scholar of comparative constitutionalism, Frankenberg urges us forward, offering a new taxonomy for critical work. He illustrates its potential in terrific chapters on recent transnational legal movements: to regulate the veil, provide access to justice and reinvigorate human rights as a language of justification. A methodological tour de force.' - David Kennedy, Harvard University 'One of the most courageous and intellectually earnest legal scholars of our time, Gunter Frankenberg, has devoted his efforts to reconstructing comparative law's internal strength and potential for critical analysis. This book is a masterpiece that should be read by every serious thinker concerned with the need for legal reforms and the politics of globalization.' - Pier Giuseppe Monateri, University of Turin, Italy Presenting a critique of conventional methods in comparative law, this book argues that, for comparative law to qualify as a discipline, comparatists must reflect on how and why they make comparisons. Gunter Frankenberg discusses not only methods and theories but also the ethical implications and the politics of comparative law in order to bring out the different dimensions of the discipline. Comparative Law as Critique offers various approaches that turn on the academic discourse of comparative law, including analysis of a widespread spirit of innocence in terms of method, and critique of human rights narratives. It also analyses how courts negotiate differences between cases regarding Muslim veiling. Gunter Frankenberg presents varied critical projects that discuss methods and theories, ethics and the politics of comparative law to bring out the different dimensions of the discipline. The incisive critiques and comparisons in this book will make essential reading for comparatists working in legal education and research as well as students of comparative law and scholars in comparative anthropology and social sciences.

The 2005 Special Issue of the "Comparative Law Yearbook of International Business" addresses issues relating to security in immovables. Each Chapter contains an overview of the security in immovables laws of a particular country. The laws vary widely among the countries; the word immovable (or real property in Common Law jurisdictions) even has different definitions in different countries. Crossborder transactions involving immovables are integral to international business dealings. This publication provides a general overview of the methods by which immovables are secured in various countries, and each chapter contains details such as the priority granted creditors and openness of the land registers. Each chapter contains a country-specific explanation of the method by which one obtains a mortgage, lien, or similar security, and an exploration of the possible problems that might arise during Such a process. In addition, special attention is given to the obstacles facing non-nationals interested in buying immovables. The book evidences the varied attitudes at governments towards the purchase of immovables by non-nationals. In some countries, such as The Philippines, non-nationals are prohibited from buying land. Other countries, such as the Slovak Republic, allow foreign acquisition of nearly any immovable, only forbidding purchase of items that no private citizen can own, such as the country's rivers. This publication reflects recent developments in security in immovables, especially in Eastern Europe. The chapter on immovables in Ukraine is based on the country's new property laws, passed in 2004. The chapters on the Czech Republic, the Slovak Republic and Hungary all reflect the changes brought by accession to the European Union. The acquisition of property in a foreign country is an integral facet of international business and practitioners will find this publication's in-depth instructions for the purchase of security in immovables useful as it pertains to individual countries. In addition to showing practitioners how transactions work for individual countries, readers will be able to compare diverse legal regimes to find the one most favorable for their particular business transactions.

Using insights from multilevel governance and pluralism, this book provides an in-depth analysis of the development of European private law in the Dutch and German legal order. It focuses on the question whether the coexistence of national and European state and non-state actors is detrimental or beneficial for the predictability, consistency, accessibility and responsiveness of European private law. On the one hand, the discourse on multilevel governance draws attention to the possibility that problems may arise if interdependent actors do not sufficiently interact. This may be the case in European private law, where national and European legislators and courts have become increasingly interdependent on one another in ensuring that European private law develops predictably, consistently, accessibly, and responsively. The book analyzes the development of European private law by national and European state actors through codifications, blanket clauses, soft laws and general principles in the light of interdependence. In addition, non-state actors have played an increasingly important role in developing binding rules in European private law. This development necessitates more interaction between actors, and more attention for the potentially binding effect of privately developed rules on third parties' rights. The book accordingly develops a normative framework to determine the extent to which private actors should be able to develop binding rules, based on principles of democracy, private autonomy, and concerns for hetero-determination. On the other hand, pluralism perspectives advocate the development of European private law at different levels and jurisdictions in the light of responsiveness, regulatory competition, and opportunities for mutual learning. The book explores whether these benefits have materialized in the development of European private law, drawing attention to failed and successful instances of regulatory competition and mutual learning, and resulting innovations. The book sketches new governance techniques that may help interdependent actors take into account one another's initiatives and benefit from each other's insights, although they may also entail hetero-determination.

This text is a second, revised edition of the original 1986 publication. Since that time, the issue of contract change has increasingly challenged the business community and legal practitioners. This edition studies the investor-host country relationship, on which successful investment is most dependent. In particular, the book studies the pressure by host countries for contract change and its counterpart - the investor's defence of contract stability. The book is essentially a reference handbook for legal practitioners. It analyzes a variety of increasingly important questions concerning international investment agreements that come under pressure for change by one of the contracting parties - either a transnational corporation or a host country government.

There are no two neighbouring countries anywhere in the world that are more different than Indonesia and Australia. They differ hugely in religion, language, culture, history, geography, race, economics, worldview and population (Indonesia, 270 million, Australia less than 10 per cent of that). In fact, Indonesia and Australia have almost nothing in common other than the accident of geographic proximity. This makes their relationship turbulent, volatile and often unpredictable. Strangers Next Door? brings together insiders and leading observers to critically assess the state of Australia-Indonesia relations and their future prospects, offering insights into why the relationship is so important for Australia, why it is so often in crisis, and what this means for the future. This book will be of interest to anyone concerned with the Indo-Pacific region, Southeast Asia, Australia and Indonesia, and each country's politics, economy and foreign policy. It contains chapters that will interest specialists but are written in a style accessible to a general audience. The book spans a diverse range of subjects, including political relations and diplomacy, security and defence, the economy and trade, Islam, education, development, the arts, legal cooperation, the media, women, and community ties. Contributors assess the current state of relations in their sphere of expertise, and outline the factors and policies that could shape bilateral ties - and Indonesia's future - over the coming decades. University of Melbourne scholars Tim Lindsey and Dave McRae, both prominent observers and commentators on Indonesia and its relations with Australia, edited the volume, providing a synthesising overview as well as their own thematic chapters.

Ethnic identity groups-defined broadly to include ethnic, religious, linguistic, or racial identities-have long played a role in the formulation and implementation of U.S. foreign policy. Yet ethnic group influence increased significantly following the Cold War. Ambrosio and his colleagues provide a unique collection of essays on the relationship between ethnic identity groups and U.S. foreign policy. The book covers a wide range of issues, historical periods, and geographic regions. Integrated chapters examine four major issues: the traditional (white) role of ethnicity in U.S. foreign policy; ethnic identity group mobilization; newcomers to the foreign policy process; and the complexities of ethnic identity politics.

An in-depth literature review is provided, as well as an overview of the moral/ethical issues surrounding ethnic group influence on U.S. foreign policy, especially after the events of September 11, 2001. This volume is designed to spark debate on the theoretical, historical, and ethical issues of ethnic identity group influence on U.S. foreign policy. As such, it will be of special interest to scholars, students, researchers, policymakers, and anyone concerned with the making of American foreign policy.

This book provides a comprehensive theory of the rights upon which tort law is based and the liability that flows from violating those rights. Inspired by the account of private law contained in Immanuel Kant's Metaphysics of Morals, the book shows that Kant's theory elucidates a conception of interpersonal wrongdoing that illuminates the operation of tort law. The book then utilises this conception, applying it to the various areas of tort law, in order to develop an understanding of the particular areas in question and, just as importantly, their relationship to each other. It argues that there are three general kinds of liability found in the law of tort: liability for putting another or another's property to one's purposes directly, liability for doing something to a third party that puts another or another's property to one's purposes, and liability for pursuing purposes in a way that improperly interferes with the ability of another to pursue her legitimate purposes. It terms these forms liability for direct control, liability for indirect control and liability for injury respectively. The result is a coherent, philosophical understanding of the structure of tort liability as an entire system. In developing its position, the book considers the laws of Australia, Canada, England and Wales, New Zealand and the United States.

Although recent family law debates have been predominantly paedo-centric, the founding of "bio-medically assisted families" still focuses on the individual parents' rights to reproduce. By introducing donations, the donor's genetic contribution becomes instrumental and the legal attribution of parenthood negotiated through expressed intentions. The absence of a genetic, social and legal father can only occur in single women's conceptions by choice, hence calling into question the role of the societal father.This neglects the future child's voice in private and family life issues on at least two levels: informational (lacking information about origins, often related to personal identity) and legal and functional (care provided by both parents). It furthermore emphasises the inconsistency in the treatment of "naturally" and "artificially" conceived children since the latter have restricted access to parental judicial proceedings.The conflicts between individuals in the family go beyond national family laws and become a matter of reconciling progenitors' and children's human rights. Yet the discrepancies between different civil law jurisdictions are remarkable. In addition, the sensitivity of the filiation of children conceived by sperm donation to single women requires more than legal solutions it requires an interdisciplinary approach encompassing ethics, psychology, anthropology and sociology. Moreover, by arguing and suggesting solutions the issue also becomes political. Hence, this book provokes the curious minds of lawyers, ethicists, physicians, bio-technologists and those assisting and wishing to found families. It clarifies concepts, studies the rationale behind the legal complexity in ten national European jurisdictions, and confronts the rights and responsibilities of the stakeholders, providing a balanced independent conclusion and suggestions towards international harmonisation.

'Opening a property law book often results in reading mere technical descriptions of enforceable rules within a given legal system. This book edited by Michele Graziadei and Lionel Smith breaks this tradition by providing a complete, high-level and up-to-date introduction to key issues in contemporary property law from a multidisciplinary and global perspective. Thanks to the diversity and the quality of the various contributions, it is a perfect gateway for anyone broadly interested in the field.' Mikhail Xifaras, Sciences Po Law School, France Comparative Property Law provides a comprehensive treatment of property law from a comparative and global perspective. The contributors are leading experts in their fields who cover both classic and new subjects, including the transfer of property, the public-private divide, water and forest laws and the property rights of aboriginal peoples. Incorporating contributions from a variety of countries, this handbook explores property law with a critical edge, viewing the subject through the lens of both public and private law theory and providing a springboard for further research. This unique coverage of new and emerging subjects in property law also examines developments in Africa, Latin America and China. This handbook maps the structure and the dynamics of property law in the contemporary world and will be an invaluable reference for scholars working across the breadth of the field. Contributors include: B. Akkermans, L. Alden Wily, R. Aluffi, M.R. Banjade, A. Braun, T. Earle, Y. Emerich, J.L. Esquirol, D. Francavilla, F. Francioni, M. Graziadei, A.M. Larson, A. Lehavi, F. Lenzerini, K. McNeil, I. Monterroso, E. Mwangi, S. Praduroux, S. Qiao, G. Resta, D.B. Schorr, L. Smith, B. Turner, F.K. Upham, A. van der Walt, L. van Vliet, F. Valguarnera, R.l. Walsh

This book provides in-depth insights into the regulatory frameworks of five countries and the EU concerning the regulation of genome edited plants. The country reports form the basis for a comparative analysis of the various national regulations governing genetically modified organisms (GMOs) in general and genome edited plants in particular, as well as the underlying regulatory approaches.The reports, which focus on the regulatory status quo of genome edited plants in Argentina, Australia, Canada, the EU, Japan and the USA, were written by distinguished experts following a uniform structure. On this basis, the legal frameworks are compared in order to foster a rational assessment of which approaches could be drawn upon to adjust, or to completely realign, the current EU regime for GMOs. In addition, a separate chapter identifies potential best practices for the regulation of plants derived from genome editing.

This book analyses the theory of efficient breach in English sales law, European Union contract law and Chinese contract law. It analyses the framework of the efficient breach theory and reconsiders the implications of this theory. According to the traditional efficient breach theory, the remedy of expectation damages is able to motivate efficient breach, which brings the breaching party economic surplus without making the non-breaching party worse off. The essential problems are how to motivate contract parties to make rational decisions and how to solve cases where performance of a contract turns out to be less efficient after its conclusion. The second part of the book further extends the efficient breach theory to the study of contract law systems by analysing how exactly those laws react to breach and what solutions are adopted by them.The comparison of these three systems is more than a mere description of the differences and similarities in the content. More importantly, this comparative research also analyses whether or not the differences between these systems will influence the level of efficiency produced by each legal system by taking account of the different traditions and the concepts of contracts involved in each legal system. Researchers in contract law will also be interested in this approach, particularly for re-thinking the question of whether one legal system is definitely better or worse than the other two.

The countries of central and eastern Europe face considerable challenges in their quest to protect both the health and amenity of their populations and their natural resource base; they are facing the need to clean up the legacy of pollution which they have inherited from former regimes, and ensure that the environmental consequences of present day decisions are well understood. Environmental impact assessment is a process which provides decision makers with an indication of the likely environmental consequences of their actions and can play a more proactive role in encouraging the consideration of less damaging alternatives or modifications. With legislation on EIA recently enacted or planned in all the countries addressed here, this volume presents work commissioned by the European Bank for Reconstruction and Development to assist investors and regulators in the countries of central and eastern Europe and has been fully updated and reviewed for publication. Each chapter describes the EIA process in one country, and includes translations of the relevant legislation. This text constitutes the second volume in the European Bank for Reconstruction and Development's own Environmental Library.

This volume presents global and comparative perspectives on the perpetual pendular movement of family law between status and contract. It contributes to the topical academic debate on 'family law exceptionalism' by exploring the blurred lines between public law, private law and family law, and sheds light on the many shades of grey that exist. The contributions focus on both substantive and procedural family law on parents and children and on life partners, with particular attention for contractual arrangements of family formations and of conflict resolution. The hypothesis underlying all contributions was the trend towards contractualisation of family law. A convergent research outcome resulting from the comparison of national reports was the ambivalent position of family law in legal systems worldwide. That comparison shows that, whereas family law is clearly moving towards contract with regard to old family formations, the contrary is true for new family formations. The movement towards contract is rarely considered to be contractualisation pur sang, with civil effect. The movement towards status, finally, does not necessarily witness 'family law exceptionalism' vis-a-vis private law, in view of the increasing State interventionism in private law relations in general. In sum, as the volume shows, the high permeability of the demarcations between the State, the family and the market impedes a categorial approach. This volume is based on the general and selected national reports on the topic "Contractualisation of Family Law" that were presented at the XIXth International Congress of Comparative Law in Vienna in July 2014.