Suchergebnisse

Let the letters in the title of the judgment not fool anyone as to the anonymity of the parties involved: the facts that can be gleaned from this and the relevant Austrian judgments (the Kazakhstani plaintiff was alleged to have kidnapped other Kazakhs and lived at various junctures in Austria and Malta) should provide enough information for anyone with rudimentary skills in operating search engines to unearth the sensational beginning and unexpected ending of the protagonist. Such details, unfortunately, belong in a blockbuster movie rather than an academic case note.

Courts, whether national or European, are sometimes subject to charges of judicial activism. Adopting a comparative perspective, this contribution charts the ways in which constitutional courts in the Member States have sought to mitigate or pre-empt charges of activism. The primary purpose is to identify attractive solutions or lessons the ECJ may draw from dealing with this perception of judicial activism. It is important at the outset to be clear about what is meant by 'judicial activism'. Judicial activism is often used as a slogan to communicate dislike or disagreement with a particular judgment or line of case law. While such a subjective approach has rightly been criticized, we should acknowledge that politicians, the media and the public regularly employ the term in this derogatory sense. As such, judicial activism is closely connected to the way in which these actors perceive the legitimacy of the court and its judgments, whereby judicial activism is commonly seen as a legitimacy-eroding factor.

To many legal analysts, accountability presupposes at least a minimum level of judicial oversight. This article addresses the appropriateness of this belief in the context of new governance. Taking the networked system for the enforcement of European competition and electronic communications law as a case study, it is shown that this mode of governance is at present characterized by a judicial accountability deficit as regards soft law instruments. Thereafter, this article directs a critical inquiry into the desirability and feasibility of introducing judicial oversight, including a cost-benefit analysis to determine the economic prospects of such a development. The analysis reveals that ensuring judicial oversight seems beset with legal difficulties and generates considerable economic cost. Finally, this article examines the possibility of relying on participation of affected interests to achieve the ends pursued by judicial review. Although it cannot be said that participation and judicial review are perfect substitutes or that the former is without problems of its own, in the new governance setting discussed here, participation has good prospects of realizing the more desirable, because efficient, outcome.

It is a truth universally acknowledged that a person upon whom a right is conferred must be entitled to a remedy to adequately safeguard this right. However, it is axiomatic that the availability of a remedy by itself is not sufficient: what is also needed if the existence of a remedy is not to be rendered nugatory, is a remedy which is first and foremost effective in providing redress. In the context of EC law, the case law of the Court of Justice (ECJ) acknowledges this.1 Particularly in relation to the availability of remedies at the national level to protect Community law rights, the Court has developed the principles of effectiveness and equivalence as the two conditions which always have to be met before it will consider a remedy Euro-compatible. In this article, however, the emphasis will be on the remedies present at the Community level, to be more precise, on the remedy of concurrent liability. The concept applies to the situation where there are two parties which can jointly and severally be held liable for the damage their (in)action has caused another party. In the context of Community law, this translates to the joint liability of the Community and one or more Member State(s) for the losses occasioned to an individual. The concept of concurrent liability will be examined to determine its (un?)conformity with the principle of effectiveness as it has developed within EC law. It has to be stressed here that the available literature on concurrent liability is unfortunately rather limited, as well as of considerable age. All opinions expressed are therefore predominantly based on a critical review of the existing case law.

AbstractThis article presents a roadmap for examining the phenomenon of monarchy in Asia, which we conceive as a pluralist institution in a twofold manner. First, many monarchies discharge a wide range of roles and responsibilities ranging from the symbolic to the religious to the legal-political. These varied functions can be usefully captured under the notion of constitutional guardianship, and call for intersectional analysis. Second, it is common for monarchies to have metamorphosed from being purely endogenous institutions to becoming ones embedded in a scheme of limited, constitutional government under the influence of ideas from elsewhere. Monarchies should accordingly be viewed as a form of legalmétissage, viz. a braiding of local and extraneous ideas, practices, and rules. In this sense, a law-and-society approach is more likely to reveal the nature of monarchies than a strictly legal-doctrinal approach, although some of the latter is needed to fully appreciate the former's significance.

The article examines the modality of judicial dialogue and the practical workings of less institutionalized judicial networks in Europe. Topics discussed include the definition of constitutional pluralism, network, and dialogue, the participation of judges in judicial networks, and the relationship between the Court of Justice of the European Union (CJEU) and the national courts.

AbstractThe contemporary crisis in relation to constitutional literacy relates not to the lack of knowledge that citizens possess about fundamental constitutional texts, but to the considerable lack of development in relation to what constitutional literacy itself entails. This article accordingly unpacks the notion of constitutional literacy: its importance, its characteristics, and its variable nature. Using a comparative lens, the article invites reflection on the role we expect citizens to play in our democracies, and especially the associated knowledge and skills required for successful state performance. We suggest that constitutional literacy is exceptionally multifaceted and fluid in nature, which serves to make its conceptualization and measurement challenging endeavours, and certainly more so than the easy invocation of this notion may assume at first blush. In this regard, engaging with the constitutional text, while an integral component of constitutional literacy, is ultimately only one part of the puzzle.

Abstract:How have Asian nations conducted, or how are they conducting, constitution-making in the face of pressures associated with globalisation, and how do they balance those forces with domestic interests and realities? This article aims to develop an analytical framework that can capture this global–local interplay. It introduces the concept of 'glocalised constitution-making' to denote the co-existence and relationship between the two governance levels as manifested in the forces, actors and norms pertaining to the process of drafting a new constitution as well as its substance. Glocalisation permeates the entirety of a constitution-making episode, from the impetus to initiate the process, to its design and inclusiveness of interests featured, and the scope of topics considered. The effects of glocalised constitution-making for domestic drafters are arranged along a continuum with approbation and aversion as the polar opposites. The precise location on the continuum will depend on the value preferences of the domestic stakeholders and the matters under consideration. The application of this analytical framework is illustrated with reference to recent constitution-making exercises in Bhutan, Nepal, Thailand, East Timor and Sri Lanka.

Front Matter -- Contents -- Preface -- Chapter 1: The Fall and Rise of Legal Education in Asia: Inhibition, Imitation, Innovation /Simon Chesterman -- Chapter 2: Asian Culture Meets Western Law, the Collective Confronts the Individual: The Necessity and Challenges of a Cross-cultural Legal Education /Francis SL Wang and Laura WY Young -- Chapter 3: Going Global: Australia Looks to Internationalise Legal Education /Ann Black and Peter Black -- Chapter 4: The Rhetoric of Corruption and The Law School Curriculum: Why Aren't Law Schools Teaching About Corruption? /Helena Whalen-Bridge -- Chapter 5: Teaching Comparative Law in Singapore: Global and Local Challenges /Andrew Harding and Maartje de Visser -- Chapter 6: International Moot Court as Equaliser: An Asian Paradigm /Chen Siyuan -- Chapter 7: "Closing the Gap" between Legal Education and Courtroom Practice in Japan: Yôken Jijitsu Teaching and the Role of the Judiciary /Souichirou Kozuka -- Chapter 8: Legal Education in South Korea: Does Continuance of the Old Judicial Examination Style Ruin the Dream of Ideal Legal Education? /Yong Chul Park -- Chapter 9: Experientialization of Legal Education in Hong Kong: Adoption and Adaptation /Wilson Chow , Michael Ng and Julienne Jen -- Chapter 10: Preparing for the Sinicization of the Western Legal Tradition: The Case of Peking University School of Transnational Law /Philip J. McConnaughay and Colleen B. Toomey -- Chapter 11: Globalisation and Innovative Study: Legal Education in China /Li Xueyao , Li Yiran and Hu Jiaxiang -- Chapter 12: Legal Education in 21st Century Vietnam: From Imitation to Renovation /Bui Ngoc Son -- Chapter 13: Legal Studies at Thammasat University: A Microcosm of the Development of Thai Legal Education /Munin Pongsapan -- Chapter 14: Second Fiddle: Why Indonesia's Top Graduates Shy Away from being Judges and Prosecutors, and What We Can Do about It /Linda Yanti Sulistiawati and Ibrahim Hanif.