Law Agenda Research Articles

A Research Agenda for Administrative Law edited by Carol Harlow

A Research Agenda for Administrative Law edited by Carol Harlow

The Instruments Used to Counter Illicit Financial Flows at the International Level and Their Application to Matters of Taxation

Tax-related illicit financial flows (TIFFs) deprive states of much-needed public resources and hinder revenue mobilization from achieving sustainable development efforts. Currently, there is no conceptual clarity on the phenomenon of TIFFs, with different definitions and approaches adopted within different regional and international settings. To address the existing gaps, this study starts by mapping the diverse qualifications of TIFFs with particular regard to the different legal statuses that can be attached to behaviour deemed illicit. This requires a clarification of the conceptual differences between tax evasion and tax avoidance, and more specifically, between criminal law and (criminal) tax law. While the international tax law agenda has prioritized countering tax avoidance, the issue of tax evasion remains inadequately addressed within the existing framework. In this regard, this study concludes that when it comes to aligning the notion of tax crimes as predicate offence for existing criminal law, countries should be allowed to keep their de minimis qualifying rules to ensure flexibility and respect national sovereignty, thus ensuring proportionality and the respect for taxpayers’ fundamental rights.

The Public Service and its new crises

The notion of public service for Brazilian administrative law has always been endowed with a natural fog, which involves dogmatic discussion based on the uncertainties of the elements and the scope of the concept, extending into spaces where new execution models continue to foster doubt. The debate on the distinction between public service and economic activity is once again on the agenda of administrative law, as the economic crisis influences adjustments aimed at the privatization of state-owned companies such as the Brazilian postal and telegraph company and the Rio water and sanitation company of January. In the reflections set out in this essay, we propose premises to face the “new crises” of public service, elucidating issues that compromise the efficiency of the State's administrative function, in points relating to its universality and adequacy. It is an invitation to doubt and conjecture many answers to the same question. What are the risks of Brazilian public service?

Derechos Humanos: de la poesía a los estados financieros, una predicción de cómo el marco ASG, ambiente, social y gobernanza, lo puede cambiar todo

This paper argues that the progressive inclusion of human rights criteria in ESG indicators can have an unprecedented impact. Based on a conceptual study of the ESG legal framework and major normativedevelopments in Europe, this paper presents indicative evidence of a new set of incentives and obligations for transnational corporations. The novelties that the ESG movement brings could be extremely useful in advancing the agenda of international human rights law which, for years, has suffered the ravages of having no real enforcement mechanisms at the international level. In Europe, for example, human rights due diligence could soon condition permits in the world of mergers and acquisitions, and the list of potential impacts is long. Based on a systematization of regulatory developments and some projections, this research shows the emergence of a new and potentially transformative relationship between human rights and the financial sustainability of private companies.

Rule of Law and the 2022 Czech Presidency: Strengthening Resiliency and Avoiding Conflicts

The insertion of “resiliency of democratic institutions” into the five key priorities of the 2022 Czech presidency indicates a political commitment to focus on the rule of law agenda. The following text aspires to map the practice of the Czech presidency in the domain of democratic institutions and rule of law and explain the reasons behind its (in)ability to deliver the expected outcomes. Firstly, the article analyses the specifics of the EU regulatory framework for the rule of law, and the impact of the Czech internal political situation after the 2021 parliamentary elections on the presidency’s performance. Secondly, the text covers four key policy issues that required the presidency’s attention in the second half of 2022: the evaluation of the judicial systems of member states, the formation of new EU rules for media freedom and the fight against disinformation, the amendment of the EP election process, and the judicial response to the crimes committed during the Russian invasion of Ukraine.

Why a Research Agenda for Tax Law?

Why a Research Agenda for Tax Law?

The UN Sustainable Development Agenda and Rule of Law: Global Governance Failures Require Democratic and Judicial Restraints

The 2030 United Nations (UN) Sustainable Development Agenda defines its 17 Sustainable Development Goals (SDG S) in terms of human rights and multilevel governance of related public goods. The global health pandemics, environmental crises, and geopolitical trade wars reveal governance failures and related ‘constitutional failures’ to protect human and constitutional rights effectively by democratic legislation, administrative and judicial remedies of citizens, and transnational rule of law. The SDG S require stronger, multilevel legal restraints on ‘market failures’ (like environmental pollution), ‘governance failures’ (like insufficient remedies against abuses of executive powers) and ‘constitutional failures’ (like neglect for transnational rule of law and the ‘Anthropocene’). Democratic legislation and citizen-driven, administrative, and judicial remedies must strengthen accountability of governments for decarbonizing economies and protecting human rights (e.g., environmental and public health protection). Worldwide protection of the SDG S requires reforming multilevel governance beyond Europe’s multilevel constitutionalism in order to prevent policy conflicts through transnational rule of law and ‘constitutional embedding’ of UN/World Trade Organization (WTO) governance.

Institute of education in the system of crime prevention and fighting as an object of criminology research

Abstract in the language of the article. In the work, the author proved that the relevance of the scientific study of the institute of education through the prism of its place and role in the system of crime prevention and counteraction is primarily determined by the imperfection of the organizational and functional components of the state mechanism of law enforcement and law enforcement, the incompleteness of the reforms of the law enforcement and judicial systems, and the inconsistency in reforming the education system. It was noted that today, due to various economic, political, military, demographic, and social reasons, access to education is difficult, and its quality level does not always allow for the formation of a personality with a high level of legal awareness and culture. So it was concluded that the issue of the system of crime prevention and countermeasures, including the place and role of the educational institution in it, continues to be acutely on the agenda of Ukraine's development, guaranteeing legality and law and order in it. Based on the analysis of scientific publications related to the topic of the study, it was concluded that at the level of criminology, the issue of the institute of education in the system of crime prevention and countermeasures was investigated rather episodically and inconsistently, mainly through the prism of studying other adjacent components of the crime prevention and countermeasure system. Considering the fact that the institution of education as a component of the system of crime prevention and countermeasures has a high cognitive value as a criminological problem, it is indicated that this institution needs proper state and legal support. An analysis of the state of criminological scientific research at the Institute of Education in Ukraine made it possible to give it a critical assessment. The inadequacy of modern studies of the criminological aspects of the institute of education, its role in the formation of the legal consciousness of modern youth in Ukraine in the spirit of respect for the law and the law, legal values that have been formed in the national society, is noted. Taking into account the above, promising directions for the study of the institute of education as a component of the system of crime prevention and countermeasures have been scientifically substantiated.

ASPECTS AND THREATS OF INFORMATION SECURITY IN THE ERA OF MODERN INFORMATION WARS

The article is devoted to topical issues of ensuring information security at the present stage in the context of new challenges, threats and risks. In the context of the development of the information society, the study of the directions of strengthening information security in various spheres of life of the individual, society and the state is of great importance. The value of information is formed, the main directions of ensuring information security in the digital sphere are identified. It is established in the work that today, information security acts as a priority of planning in the field of national security, thereby the internal and foreign policy of the state protects information and information infrastructure. The growth of information threats in global changes in integration processes in the field of information security has been revealed, which has contributed to the adoption of a number of regulations by the domestic legislator aimed at the formation and development of the national information security system. The article deals with modern types of information threats, while the threats considered today are becoming relevant, since the current agenda of international law allows us to conclude that an information confrontation is being conducted against the Russian Federation. In the course of the research, the author concluded that the considered problems in the field of information security and new types of threats at the present stage require further scientific understanding, in turn, the information law system is currently in the process of active transformation; with an increase in the number of cyber attacks, the state is taking all necessary measures to protect domestic information resources and critical information objects.

Making a model: the 1974 Nordic Environmental Protection Convention and Nordic attempts to form international environmental law

ABSTRACT This article investigates the 1974 Nordic Environmental Protection Convention. It shows that the ulterior motives for such a convention were Nordic ambitions to regulate and reduce transboundary pollution originating outside of the Nordic region. Emphasizing the inter-organizational dynamics between institutionalized Nordic cooperation and international organizations, it examines how the Nordics drew on developments within international organizations and how they pursued their agenda of shaping international environmental law within the OECD. Ultimately, the article argues that the Nordic countries tried to create a model convention to be exported to and implemented at the international level with the aim of reducing transboundary pollution and establishing transnational responsibilities and accountabilities. By setting out this argument and shedding light on the first legally binding international convention to address transboundary pollution with procedural principles, the article breaks new ground on the history of Nordic environmental cooperation as well as on the development of international environmental law.

European Consumer Law after the New Deal: A Tryptich

Abstract In 2018/2019, EU private law experienced one of the most vigorous and meaningful changes in its evolution so far. The prominence of this alteration does not rest solely on the number of new rules, but—more importantly—on the substantially new perspective on economic and social tasks of European private law. The reform encompassed three core areas: consumer protection, sustainability and digital commerce. The paper seeks to better understand the transformative task of private law in the social and economic realm. The protection of the environment, on the one hand, and the informational autonomy and privacy, on the other, provide a new type of challenge for the existing agenda of private law, reaching beyond economic efficiency as its ultimate goal. Finally, the emergence of digitalization and sustainability as the new domains of private law reinvigorates the question of to what extent the European private law should directly engage itself in pursuing the social and economic agenda. The 2018/2019 legislation opened a new chapter in this discussion, facing private law with a new genre of tasks, which traditionally belonged to the domain of public ordering. The paper seeks to unpack the essence of this change by focusing on three intertwined issues: vulnerability, autonomy, and regulation. Mingled together they seem to form the backbone of the reform, which seems to provide an in-depth subversion of the existing conceptual structures of EU consumer law.

The UN sustainable development agenda and rule of law: how to limit global governance failures and geopolitical rivalries?

The UN sustainable development agenda and rule of law: how to limit global governance failures and geopolitical rivalries?

Advocacy for a citizen‐centric rule of law agenda: How do we bring the rule of law to life?

AbstractHow do we best defend the rule of law against its attackers, both within the European Union and outside of it? Often, the rule of law has been perceived as a domain belonging to jurists, lawyers, bureaucrats, or politicians. Yet at its most fundamental, the rule of law needs to be thought of from a citizen's perspective. When enforced, it guarantees freedoms and liberties for citizens and enables us to live peacefully. In this article, we propose a citizen‐centric rule of law agenda based on a deep conviction that it is if and when it becomes a citizen‐based societal principle that its many attackers are best countered. We discuss the challenges and necessities of rule of law promotion and propose an assessment approach called the “living list”. We close with a call for citizen‐scholars to fight for the rule of law, the most precious human invention of all time.

THE ENVIRONMENTAL IMPACTS OF THE “MARITIME AUTONOMOUS SURFACE SHIPS” (MASS)

Autonomous ships are already a reality. They are on the agenda of international law and international society in general. In a short time, it will also be a reality in all the world’s oceans. Thus, international organizations, States and international society need to be prepared for these autonomous ships. They will bring new challenges to the law of the sea and international maritime transport. One of these challenges is just what are the environmental impacts that these “Maritime Autonomous Surface Ships” (MASS) will bring with them. That is, what are the consequences for the marine environment of these autonomous ships? This is precisely the objective of this article: to understand the environmental impacts of MASS and what are the new challenges that humanity will have to face the imminent advent of these ships. In this sense, it will be demonstrated what the advantages and disadvantages of these vessels for the environment are and, in particular, what care the world needs to take to protect and preserve the marine environment due to the advent of these new technologies.

Speaking Out Against Violence – For an Embodied Feminist Law Agenda?

A discursive, always already Foucauldian approach to the law question has always seemed to me to suffice for critique to have the desired effect of successfully challenging law’s truth. But is it perhaps past time to move beyond discourse analysis and a purely visceral reaction to phallocratic law’s violence and towards what might be called an embodied feminist law agenda? The inquiry takes the form of a journey in search of new, more embodied ways of speaking out against violence against women. It has involved rethinking the relationship between mind and body and the presumptions about them that underlie fluctuations within feminist thought over time between emphasising discourse compared to emphasising bodies and how they impact on feminist praxis.

Back to the Future of Canadian Labour Law

The invitation to present the H.D. Woods Lecture came with a proposed subject: the future of labor law. That future won't come by means of a sudden legislative tsunami that sweeps in broad-based sect-oral collective bargaining or some other dramatic new system to replace the Wagner Model which has governed since the 1940s. Instead, change will come first in the form of smaller fore-shocks. In this paper, which is the text of the 2019 H.D. Woods lecture, I argue that clues as to what those fore-shocks may be found can be found in important debates that took place during the 1980s. One of those debates examined comparative labor law and proposals to improve the Wagner Model of collective bargaining by merging features of the Canadian and U.S. versions of that model to create a hybrid model that would better facilitate access to collective voice. A second debate related to the potential impact of the Charter of Rights and Freedoms on the future of Canadian Labor law. David Beatty argued that the Charter would eventually lead to the dismantling of the Wagner Model and its replacement with a new model that extended the reach of collective bargaining to workers long excluded by the Wagner Model. In early Charter litigation, the Supreme Court of Canada wholly rejected Beatty's normative vision for a post-Charter labor law. However, in important ways, Charter jurisprudence since 2001 has slowly shifted the labor law agenda towards a landscape that shares much in common with that which Beatty envisioned long ago. The paper concludes with some predictions about the changes that will come to Canadian labor law drawn from these debates of some 40 years ago.

An Agenda for Competition Law and Policy in the Digital Economy

An Agenda for Competition Law and Policy in the Digital Economy

Enclave Governance and Transnational Labour Law – A Case Study of Chinese Workers on Strike in Africa

This article examines deficits in the current legal framework of posted workers in a global setting through a case study involving Chinese posted workers striking in Equatorial Guinea. Posting highlights the challenges that economic globalisation and transformation of the labour market pose to labour law. As a phenomenon whose normativity is deeply embedded in the cross-border setting where it occurs, posting should profoundly affect the transnational labour law agenda. The emergence of transnational labour law should be seen from the perspective of reconceptualising existing normative regimes in the light of an underpinning transnationality and sketching the architecture for the normative edifice of transnational labour protection. The transnational legal context under scrutiny calls for a wider normative framework where the intersections between labour law, international law and private international law are taken seriously. Global protection of posted workers should be a featured project on the transnational labour law agenda.

A Comparative Foreign Relations Law Agenda: Opportunities and Challenges

International law is generally understood to be made up of the rules that states accept as binding in their relations with one another. But international law is the product not only of a political and legal process that takes place between states — as this common understanding implies — but also of processes that take place within them. And yet to date there has been remarkably little cross-national work examining the role of domestic politics and law in the creation of treaties and other international law. Part of the reason for this gap is the difficulty of conducting cross-national studies of foreign relations law on a large scale. To the extent there have been comparative studies done of foreign relations law, they have been largely limited to relatively small-scale case studies. More comprehensive examination of the differences across nations in the ways in which they make international commitments is rare. This chapter aims to contribute to an emerging conversation about how best to carry out a more comprehensive examination of differences between states in the law governing their engagement in the world around them. It maps out five areas that offer opportunities and challenges for the study of comparative foreign relations law. First, the choice of methodology, whether quantitative or qualitative. Second, the under-representation of certain states in existing foreign relations scholarship. Third, the domestic political and institutional structures that shape the interplay between the legislative, executive, and judicial functions within states. Fourth, the role of geopolitics. Fifth, the chapter sounds a cautionary note about approaching international law through domestic law.

Social Justice in EU Financial Consumer Law

This paper 1 considers how social justice influences EU financial consumer law. It provides a new way of looking at social justice in consumer law by showing that equality of status based social justice has increasingly come to the fore in modern EU financial consumer law. This emergent and complex set of private and regulatory rules on credit, insurance, investment and payment products has responded to the consequences of inequality between financial firms and consumers by engaging in product and rights regulation that balances the parties’ rights and duties and protects consumers from the consequences of status-based inequality. Looking forward the paper recommends that this social justice approach must be made transparent and become an express part of EU law and policy, both in order to raise consumer trust in the internal market and to more clearly set the future law and policy agenda.