https://hdl.handle.net/1814/1925 LAW research covers three principal fields: European law, international law, and private law 2020-09-02T23:46:22Z https://hdl.handle.net/1814/67990 Rule-of-law in international trade and investments? : between multilevel arbitration, adjudication and 'judicial overreach' PETERSMANN, Ernst-Ulrich Arbitration and adjudication aim at protecting rule-of-law, which was a life-long concern for Prof. Giorgio Bernini. The United Nations (UN) have defined ‘rule of law at national and international levels’ as ‘a principle of governance in which all persons, institutions and entities, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with internationally recognized human rights’. Such ‘rule of law’ has emerged in worldwide trade and investment law only since the 1990s with the ‘judicialization’ of GATT/WTO law and investor-state arbitration (ISA). Both the World Trade Organization (WTO) adjudication and ISA are today challenged: The power-oriented blockage of Appellate Body (AB) nominations by the USA has rendered the WTO AB dysfunctional; it re-introduced power-politics into the WTO dispute settlement system, limited by voluntary ‘interim appellate arbitration’. ISA is rejected by some developing countries and inside the European Union as a threat to democratic constitutionalism. This contribution discusses these dialectic developments, i.e. ISA reforms aimed at strengthening ‘public law adjudication’ inside and beyond the European Union; the WTO appellate court system being transformed into voluntary arbitration in response to alleged ‘judicial overreach’; and multilevel judicial cooperation inside the EU, where the German Constitutional Court has - for the first time since the beginning of European economic integration in the 1950s - refused complying with a judgment of the European Court of Justice (CJEU) on the ground that the CJEU and the European Central Bank exceeded their limited powers ‘arbitrarily’ due to their insufficient ‘proportionality justification’ of encroachment on national economic and fiscal policy powers. How can rule-of-law, constitutional and ‘deliberative democracy’ and judicial comity be protected in multilevel, judicial cooperation among national and international courts? 2020-01-01T00:00:00Z https://hdl.handle.net/1814/67956 The law of contracts in the age of the coronavirus pandemic : is the statutory risk allocation pursuant to the Swiss Code of Obligations still adequate? JENTSCH, Valentin Pacta sunt servanda – agreements must be kept. This general principle of civil law requires that both or all parties to commercial contracts are expected to meet their contractual obligations, at least as long as performance is still possible and circumstances do not change fundamentally, thereby ensuring the efficacy and the efficiency of our system of private ordering. In March 2020, however, the rapidly spreading coronavirus outbreak, which was eventually declared a pandemic by the World Health Organization, all of a sudden changed everyday life all over Europe from one day to another. Airlines were cancelling flights, companies were closed down, and consumers were rapidly changing their buying behavior. In addition, many European countries, including Switzerland, enacted emergency decrees, according to which national borders were closed, cities were sealed off, major events with more than a certain number of people were banned, and teaching in schools and universities was suspended, at least for some time. There is no need to say that this situation caused considerable difficulties for all participants in the economy, business enterprises and consumers alike. Against this backdrop, I elaborate on both the remedies for a breach of contract provided by the legislator as well as the adaption and the termination of contracts by a competent judge in order to address the question, whether the statutory risk allocation pursuant to the Swiss Code of Obligations is still adequate or not. A functional and doctrinal approach is used to unfold and analyze this timeless question from a contemporary perspective. 2020-01-01T00:00:00Z https://hdl.handle.net/1814/67954 EU judicial independence decentralized : A.K. KRAJEWSKI, Michał; ZIÓŁKOWSKI, Michał The judgment in A.K. and others v. Sad Najwyższy was eagerly awaited as another red line for the EU rule of law. It provided a test for assessing the independence of national courts in their capacity as EU courts. In contrast to a bold stance by the Advocate General, the ECJ demonstrated sensible self-restraint. It did not prescribe ready-made institutional solutions aimed at securing judicial independence. It thus avoided the risk of a judge-made harmonization of domestic judicial organization based on scant and indeterminate Treaty provisions on the matter. Under the ECJ’s test, the referring court was to weigh and compare the relevance of legal and factual circumstances that enhance or impair the public appearance of independence of the brand new Supreme Court Disciplinary Chamber. At the same time, the ECJ shouldered the referring court with a difficult task to make a discretionary assessment of the anti-constitutional legislation altering the judicial organization in Poland – the task that the Supreme Court’s extended formation subsequently delegated to the rank-and-file judges of lower courts. 2020-01-01T00:00:00Z https://hdl.handle.net/1814/67870 Europe's passive virtues : deference to national authorities in EU free movement law ZGLINSKI, Jan Investigating the phenomenon of deference to Member State authorities in EU free movement law, this text enquires into the decision-making latitude which the European Court of Justice grants national institutions by means of two deference doctrines: the margin of appreciation and decentralized judicial review. At the same time, it sheds light on a number of broader developments in European law. These include changes in the intensity of judicial review, the relationship between centre and periphery, the interaction between political and adjudicative processes, and the division of powers between EU and Member State courts. Drawing on an original data set of free movement cases from 1974 to 2013, the book examines how and which decisions the Court defers to national institutions. 2020-01-01T00:00:00Z