Legal Fragmentation Research Articles

Human Rights Law in International Investment Arbitration

Parts I-III of this paper give an overview of references to human rights – mainly at the initiative of host states and non-governmental third parties, but increasingly also by complainants and judges on their own initiative – in international investment disputes and investor-state arbitral awards and the responses by investment tribunals to such human rights arguments. They discuss the problems of ‘legal fragmentation’ of international investment law and human rights law, the need for judicial balancing of state-centered ‘principles of justice’ (like state responsibility) and person-oriented principles of justice (such as human rights and ‘proportionality balancing’) in trade and investment disputes, and related problems of legal methodology. Part IV concludes with a brief discussion of the increasing impact of the human rights obligations of all UN member states on investment disputes in other international courts and in private commercial arbitration, for instance due to the UN Guiding Principles on Business and Human Rights and their approval and increasing incorporation by thousands of transnational corporations and non-governmental organizations (like the International Federation of Football Associations) into their commercial contract practices.

Cosmopolitan Authority

In the following article, I reconstruct the conditions of validity for claims of cosmopolitan authority and their corresponding judicial practices. I maintain that the authority of the law articulates the structure of a cosmopolitan constitution, overlapping at both the domestic and the international legal domain. It is worth noting that, whereas in the domestic sphere claims to both cosmopolitan and not cosmopolitan legitimate authority, are embedded within a preformed constituted unity of the law (constitution), in the transnational they perform a constituting function for legal integration (constitutionalism). Within the latter, pluralism remains unbound and the unity of international law turns into an interpretive task — one measured on the best account for the unity of international law. I consider, accordingly, that international law cannot be upheld by either surrendering to an idea of legal fragmentation characterized by irreconcilable conflicts among regimes, nor by a mere acceptance of an unmediated constitutional hierarchy. Here there seems to hold, instead, a partial overlapping between the two spheres, one which defines a basic structure between the domestic and the transnational. This common concern between the two jurisdictions is what gets articulated by the exercise of cosmopolitan authority.

The Sociological Dimension of International Law

This article is the introduction to the book 'Invitation to the Sociology of International Law' (OUP, 2015). International law is deeply embedded in various sociological factors and processes. Numerous international legal rules reflect and affect societal factors and processes such as norms, socialization, identity, and collective memory. Political and economic dimensions of international law are overlain with a sociological dimension, but this study focuses on the sociological dimension of international law. While the idea that international law and other societal processes are profoundly interlinked is not new, international legal literature habitually pays only scant attention to socio-cultural aspects of international law. In light of the underlying interrelationships between international law and other social factors, the book invites international law specialists to analyse international legal rules in their wider social context, and incorporate sociological tools into mainstream international law scholarship.The book aims to introduce readers to some key sociological elements and major theoretical approaches, and illustrates their valuable contribution to international legal scholarship. To exemplify the properties of the sociological analysis, the book employs sociological tools to explore diverse topics in contemporary international law, including the World Trade Organization's (WTO) rules regulating regional trade agreements; legal fragmentation and the interaction between international investment law and human rights law; impartiality of adjudicators; compliance with and breach of international law; and the European Union's rules concerning economic and monetary cooperation.

International Regime Complexity and Regional Governance: Evidence from the Americas

In recent years, the Americas have witnessed an unprecedented surge in the number and scope of regional integration agreements, resulting in a complex “spaghetti bowl” of trade and economic relations. What are the consequences of this proliferation of overlapping and parallel institutional commitments among countries in the region? How has this increasing regime complexity affected the dynamics of cooperation among Latin American countries? And what does the case of overlapping regional agreements in the Americas tell us about the effects of regime complexity on regional governance? Drawing on the literature on international regime complexity, I identify three mechanisms through which the proliferation of regional agreements have undermined the effectiveness of cooperation in the Americas: by introducing legal fragmentation and rule ambiguity; by facilitating cross-institutional political strategies that allow countries to behave in opportunistic ways; and through competition and other feedback effects th...

To the last drop: the political economy of Philippine water policy

This paper examines the conflicts arising from the layered legal treatment, fragmentation and multiplicity of institutions involved in Philippine water governance. Using a thematic analysis of national legislation, a survey of 299 water managers in 10 provinces, and five cases illustrating local contestations, the paper tracks the diversification of formal institutional stakeholders which have been found to lack coherence and inter-agency connectivity. Water managers are not grounded in policy shifts, have little understanding of formal water rights and settle local conflicts with little reliance on formal mechanisms. The select cases reveal that water rights provide weak currency in local contestations.

A Critical Evaluation of the Proposed EU Trade Secrets Directive

The European Commission issued a proposed Trade Secrets Directive on 28 November 2013, with the aim of tackling the legal fragmentation in the protection of trade secrets that currently exists in the European Union. Key divergences between Member States include: the legal mechanism used to regulate trade secrets (criminal or civil law and within civil law, whether unfair competition, tort, contract or labour law); the definition of trade secrets; whether trade secrets are classified as intellectual property (thus affecting the application of the Enforcement Directive); criminal penalties and the procedural mechanisms for protecting the confidentiality of trade secrets during litigation. Such legal fragmentation is seen as problematic, because it apparently makes enforcement opaque and expensive and also leads to sub-optimal investment in cross-border innovation activities within the EU. This paper undertakes an evaluation of the proposed Directive, along with the 'General Approach' put forward by the General Secretariat of the European Council to the Council on 26 May 2014. It argues that we should be skeptical of claims that harmonization will bring substantial economic gains and that only a modest amount of harmonization is likely to ensue from implementation of this Directive, should it be adopted. This is because several of the obligations contain uncertainties and Member States will have the freedom to implement these obligations according to whichever mechanisms they prefer. As a result, we are likely to see a patchwork of laws continuing to regulate the protection of trade secrets in the EU and a series of references to the European Court of Justice for many years to come.

LGBTI Discrimination and Parent-Child Relationship: Cross Border Mobility of Rainbow Families in the European Union

One of the most critical issues in the landscape of the Member States of the European Union is the recognition in other Countries of the parent–child relationship within ‘rainbow families’. The parenthood of partners of same sex couple is acknowledged in Spain and the Netherlands. In other countries laws offer a timid and partial protection against discrimination of the children of same sex couples. In the majority of countries, however, there is still no legislative provision recognizing and protecting a child’s relationship with one of the partners of a same sex relationship. This legal fragmentation threatens freedom of movement within the European Union and challenges the principle of discrimination between children, only on the base of the sexual orientation of the partners in the family. By scrutinizing the distortion of the framework of fundamental rights (as recognized within the European Union) and by raising the awareness that European citizenship includes a new dimension of individuals’ protection, the paper will investigate political and juridical issues, in relation to the implementation of children rights and mutual recognition between the States. The innovation of this approach lies in the mutual recognition of the forms of protection and on the study of the available case law at the European level. The analysis will be aimed to the fundamental protection of children and to the enforcement of all the measures which are necessary for the full protection of the best interests of the children.

Lgbti Discrimination and Parent–Child Relationships: Cross‐Border Mobility of Rainbow Families in the European Union

One of the most critical issues in the landscape of the member states of the European Union is the recognition in other countries of the parent–child relationship within “rainbow” families. The parenthood of partners of same‐sex couples is acknowledged in Spain, Sweden, Denmark, Belgium, and the Netherlands. In other countries laws offer timid and partial protection against discrimination of the children of same‐sex couples. In the majority of countries, however, there is still no legislative provision recognizing and protecting a child's relationship with one of the partners of a same‐sex relationship. This legal fragmentation threatens freedom of movement within the European Union and challenges the principle of discrimination between children only on the basis of the sexual orientation of the partners in the family. By scrutinizing the distortion of the framework of fundamental rights as recognized within the European Union, and by raising the awareness that European citizenship includes a new dimension of individuals' protection, this article will investigate political and juridical issues in relation to the implementation of children's rights and mutual recognition between the states.Keypoint The innovation of the approach offered in this article lies in the mutual recognition of the forms of protection and on the study of the available case law at the European level. The analysis will be aimed to the fundamental protection of children and to the enforcement of all the measures which are necessary for the full protection of the best interests of the children.

Centripetal Force: The Law of Unjust Enrichment Restated in England and Wales

Restatements of the law are usually considered a uniquely American phenomenon, explained by the complexities and uncertainties of a multi-jurisdictional common law system. They have also been subject to the accusation from legal realists that they are misleading, conservative and formalistic exercises. This review interrogates the role of the restatement in a jurisdiction with a singular common law tradition, focusing on Andrew Burrows' recent Restatement of the English law of Unjust Enrichment. It compares and contrasts his restatement with previous American restatements and with other types of 'public statement' of private Law, such as codes and legal treatises. It concludes that there may be good (and particular) reasons for restating unjust enrichment law in England and that Burrows' work is unique in its form and purposes. This article's central thesis is that a restatement can provide an important public platform for intellectual debate and a powerful centripetal force addressing legal fragmentation and uncertainty even in a singular common law jurisdiction. It further suggests that modernist doctrinal enterprises of this type may be more sympathetic to the critical insights of legal realism than is sometimes suggested.

The Question Concerning the Common Frame of Reference

AbstractThe many directives on private consumer law enacted in the last three decades have met with considerable neglect and resistance amongst domestic judges, legislatures and scholars, bringing about less legal unity and more ‘legal fragmentation'—to say it in the words of the Commission. The Draft Common Frame of Reference is one more attempt, on the part of certain strands of European private law scholarship, at imposing a formal break on, and at overcoming, such fragmentation. Presented as a ‘comprehensive and self‐standing’ document, its ambition is to definitively implement the Commission‐generated, market‐orientated agenda of private law reform, so much resisted at the national level. The article argues that the EU legislative institutions should not go ahead with the plan of incorporating the Draft's content in EU law, by adopting a CFR. A CFR would confer an unprecedented degree of authority on a range of contested directive‐generated rules, from the test of fairness to the risk development defence in product liability. In creating a climate in which CFR‐based legalistic arguments promote unity over fragmentation, a CFR would emasculate public debate by implementing, under the spell of legal necessity, exactly those partisan, Commission‐initiated policies that have been, and still are, openly opposed in domestic legal circles. The Draft embodies a grammar of imposition that should be questioned.

Revitalizing the European ‘Neighbourhood Economic Community’: The Case for Legally Binding Sectoral Multilateralism

The revolutionary upheaval in the southern Mediterranean and the slow reforms in most of the eastern neighbourhood have pushed the European Union to revise its approach to the European Neighbourhood Policy (ENP). In May 2011, the Commission presented a full review of the ENP, introducing an enhanced form of conditionality which should see more political and financial support being given to those neighbouring countries that implement more reforms and are more democratic. Characteristic of this 'more for more' conditionality is its strong bilateral dimension. While there is some rhetorical commitment to strengthening the regional dimensions of the ENP, for example, the Union for the Mediterranean and the Eastern Partnership, few tangible proposals to that effect have been made. Notably, while the reviewed ENP repeats the goal of a 'Neighbourhood Economic Community' as a long-term objective of regional integration across the neighbourhood, it makes no proposals on instruments or strategy as to how to achieve that objective. This paper proposes that 'legally binding sectoral multilateralism' should be the EU's method and instrument of choice to reach that goal. This entails a pro-active strategy consisting of treaty-based legal integration between the EU and neighbouring countries and between the latter themselves, in sectors where such is clearly beneficial in its own right, as well as in the light of the long-term objective of a neighbourhood community. On the basis of two case studies, pertaining to the Energy Community Treaty and the draft Transport Community Treaty, the paper explores the benefits and weaknesses of this approach. The paper argues that the challenges posed by legal fragmentation in the wider European legal space can be overcome in order to reap the substantial economic and policy benefits spurred by legally binding sectoral multilateralism.

The Aim for Complete Uniformity in EU Private Law: An Obstacle to Further Harmonization

Abstract: The use of maximum harmonization directives in EU private law in combination with open legal concepts is controversial. Due to differing legal cultures, it is likely that open legal concepts will be interpreted differently in the Member States. This seems to conflict with the aim of maximum harmonization as put forward by the European Commission: reducing legal fragmentation and increasing legal certainty among consumers and businesses. Although supporting the notion that national interpretations of open legal concepts are likely to differ, this article posits that this is not incompatible with the aim of maximum harmonization. It proposes a different understanding of the concept of maximum harmonization that allows for different national applications of the rules. This understanding is based on the distinction between harmonizing a legal framework (the written rules) and harmonizing the application of this legal framework. By acknowledging the importance of fully harmonizing the written rules without harmonizing the national applications of these rules, it demonstrates that maximum harmonization does not necessarily conflict with the use of open legal concepts. Résumé: L'usage de directives visant á un maximum d'harmonisation en droit privé européen combiné avec des concepts légaux ouverts est sujet á controverses. Etant donné l'existence de cultures juridiques différentes, les concepts légaux ouverts sont susceptibles d'être interprétés différemment dans les Etats membres. Ceci semble être contraire au but del'harmonisationmaximaletellequeprésentéeparlaCommissioneuropéenne:réduire la fragmentation juridique et accroître la sûreté juridique parmi les consommateurs et les entreprises. Quoique défendant la notion selon laquelle il est probable que les interprétationsnationalesdeconceptsjuridiquesouvertssoientdifférentes, leprésentarticle soutient que ceci n'est pas incompatible avec le but d'une harmonisation maximale. Il propose une explication différenteduconceptdel'harmonisationmaximalequipermetdesapplications nationales différentes de régles. Cette interprétation est basée sur la distinction entre l'harmonisationd'uncadrejuridique (les régles écrites) etl'harmonisationdel'application dececadrejuridique.Enreconnaissantl'importanced'unepleineharmonisationdesrégles écrites sans harmonisation des applications nationales de ces régles, il démontre que l'harmonisation maximale n'est pas nécessairement en conflit avec l'usage de concepts juridiques ouverts.

Transposition of the New Consumer Credit Directive in Estonia

Abstract: On 30 September 2010, the Estonian Parliament adopted amendments to the Law of Obligations Act (LOA) aimed at implementing the new EU Consumer Credit Directive into Estonian legislation. These amendments entered into force on 1 July 2011, thus over a year later than the mandatory transposition deadline under the Directive. The reason for the delay was the fact that on 1 January 2011 Estonia joined the euro zone and the Estonian credit institutions were not ready to face two substantial challenges - introduction of the euro and coping with the new requirements of the Consumer Credit Directive - simultaneously. The transposition of the Directive has led to extensive amendments in the chapter of consumer credit contract, but a major reform of the general contract law was not required. The article discusses the transposition of the new Directive into Estonian law, paying particular attention to issues where the Member States have been granted regulatory discretion. All in all, the new Consumer Credit Directive aiming at maximum harmonization has been correctly transposed into Estonian law. The article also shows that the Estonian legislator, while in pursuit of higher consumer protection standard, has considerably expanded the scope of application of the consumer credit regulation to cover areas (e.g., small-scale loans and mortgage credit) beyond those of the Directive. This in turn is not helping to put an end to legal fragmentation of consumer credit regulation across the EU as creditors from other Member States willing to offer consumer credit products in Estonia are still facing somewhat different consumer credit provisions than the one in force in their home countries.

The rhetoric of ‘legal fragmentation’ and its discontents<br>Evolutionary dilemmas in the constitutional semantics of global law

This paper engages in the current debate on legal fragmentation and social inclusion from the perspective of systems theory. Its particular focus is directed at the changing patterns of social inclusion/exclusion under the condition of the emerging constitutional discourses of world law. While fragmented global law would still be able to safeguard functional differentiation, the neutralization of exclusionary dynamics is successively failing. This failure is attributed to the decline of politics in world society. A fragmented global law operates to a lesser degree in concert with national politics in order to guarantee the modern imperative towards full inclusion.

The Reform of the Transparency Directive: Minimum or Full Harmonisation of Ownership Disclosure?

The reform of the Transparency Directive is presently on the political agenda, with one of the key questions focusing on the level of harmonisation: should the current minimum harmonisation be retained or is a move towards full harmonisation advisable? After confirming legal competence for the full harmonisation of European capital markets law, this article weighs the pros and cons of full harmonisation in the case of ownership disclosure rules. The ability to overcome the costly legal fragmentation of the current regulatory regime for notification of major shareholdings throughout Europe is revealed as the greatest benefit of full harmonisation. As full harmonisation not only reduces compliance costs but also boosts investor confidence, all market participants stand to benefit. Despite this, full harmonisation also carries certain costs as it inhibits regulatory competition, increases complexity in implementing EU law in national legal systems and carries the danger of a petrification effect. The article reveals that these cost factors are not sufficient to undermine the case for full harmonisation for financial instruments requiring notification, as well as for thresholds, timeframes and notification formats. It goes on to show that legal regimes can retain their adaptive efficiency by allowing them to conduct temporary legislative experiments. However, the article refrains from generalising this finding, encouraging a targeted full harmonisation approach for the Transparency Directive.

Autism in the U.S.: Social Movement and Legal Change

The social movement surrounding autism in the U.S. has been rightly defined a ray of light in the history of social progress. The movement is inspired by a true understanding of neuro-diversity and is capable of bringing about desirable change in political discourse. At several points along the way, however, the legal reforms prompted by the autism movement have been grafted onto preexisting patterns of inequality in the allocation of welfare, education, and medical services. In a context most recently complicated by economic recession, autism-driven change bears the mark of political and legal fragmentation. Distributively, it yields ambivalent results that have not yet received systemic attention. This article aims to fill this analytical vacuum by offering, first, a synoptic view of the several legal transformations brought about or advocated for by the autism movement and, second, a framework for investigating their distributive consequences.

Full Harmonisation of Retail Financial Services Contract Law in Europe: A Success or a Failure?

During the last decade, the EU has adopted three major sector-specific directives in the area of retail financial services – the Payment Services Directive, the Consumer Credit Directive, and the Markets in Financial Instruments Directive. All three directives are based on the idea of 'full,' or 'maximum,' harmonisation of the contract-related rules for the provision of financial services. Seen in the context of the aims pursued thereby in the area of retail financial services – putting an end to legal fragmentation and thereby promoting a single market in financial services – the regulatory concept of 'full' harmonisation carries with it a high degree of uniformity. If 'full' harmonisation in this area is a success, legal fragmentation hindering the operation of the internal market in financial services should belong to the past. Does 'full' harmonisation, however, really lead to less fragmented contract law in the area of retail financial services and, if so, to what degree? In other words, how full is 'full' harmonisation of retail financial services contract law in the EU? In this contribution, attempt is made to address this legal issue within the context of each type of financial service currently regulated by the EU – retail payment services, consumer credit, and retail investment services – and to draw the lessons from these three stories of 'full' harmonisation for the future European harmonisation projects in the field of financial services and beyond.

PROBLEMAS DE LEGITIMACIÓN EN LA SOCIEDAD MUNDIAL

The fragmentation of legal regimes in the world society rejects the consideration of legitimacy in terms of the hierarchy of norms or courts, and promotes the reflexion on a weak normative compatibility which enables a coordination between legal fragments and its socially-coupled operative fields. As legitimatory candidates to confront this problem, discursive rationality, procedimental legitimacy, the self-constitutionality of regimes and the concept of justice as the contingency formula of law are discussed. The latter appears as a privileged mechanism of legitimation —a key element in promoting a self-transcendence of law and the observation of derivatives of legitimacy in non-legal fields.

Honey in Roman Culture

Ancient Romans were familiar with the art of beekeeping. There are many Roman literary works that give advice on beekeeping, and even the Roman law regulated some of the matters relating to that practice, as can be attested by preserved legal fragments. An article on this subject submitted by Petar Radošević is slightly too long and specialised for Bee World. David Smith reviews the paper here but the full article is available to read or download from the IBRA website*.

Putin's Leadership: Character and Consequences

VLADIMIR PUTIN’S LEADERSHIP WAS RIVEN WITH CONTRADICTIONS, and on the basis of these contradictions very different evaluations of his presidency are possible. The contradictions themselves became a source of Putin’s power. They allowed him to act in several different political and discursive spheres at the same time, with a degree of credibility in each, although their genuine authenticity was questioned. Arriving into the presidency in 2000 Putin declared his goal as the ‘dictatorship of law’, and indeed this principle was exercised in the attempt to overcome the legal fragmentation of the country in the federal system; but when it came to pursuing regime goals, it appeared more often than not that the system ruled by law rather than ensuring the rule of law. This is just one example, and there are many more—the revival of the party system, the development of civil society, international integration—where the declared principle was vitiated by contrary practices. The most interesting debates about Putin’s leadership are precisely those that examine whether the tensions were contradictions, and thus amenable to resolution (non-antagonistic), or whether they were antinomies (antagonistic contradictions) that could not be resolved within the framework of the system itself. The first option allowed an evolutionary transcendence of the Putinite order; whereas the second would require some sort of revolutionary rupture. Challenges and contradictions