Online research in philosophy

An important strand of scholarship claims that creating a new European private law (such as the drafting of a Common Frame of Reference for European Private Law) should not primarily be the work of legal scholars, but of politicians and parliaments. Another view would purportedly lead to a lack of democratic legitimacy. This raises the more general question what should be the exact relationship between private law and (national) democracy. This contribution - written in the Festschrift for Anthony Ogus - argues that the relationship between European private law and democracy is often misunderstood. Legitimacy of private law cannot only be established through the national democratic institutions, but also in other ways. The Common Frame of Reference for European Private Law is an important example of this: as a non-binding instrument, it need not fulfill the same requirements as binding law. But also private law in the more traditional sense does not always have to be legitimised at the state level: the democratic functions of law can sometimes be provided by others than the State. The exact conditions under which this is the case still need to be explored.

This article attempts to refute common stereotypes that would characterize the legal environment in Moldova as unstable and unreliable for recognition and enforcement of foreign arbitral awards in national courts. Under analysis is the emerging judicial practice of Moldova's highest court, the Supreme Court of Justice. The author provides a brief introduction to the establishment of continuous support for arbitration in national legislation, international agreements and national judicial practice. Judicial precedents are related to various aspects of recognition and enforcement of foreign arbitral awards in Moldova: procedures for setting aside; application of the New York Convention; treatment of arbitration clauses by national judges; procedural aspects of commercial arbitration; arbitration under bilateral investment treaties; and other aspects. Several important judgments are discussed in detail, emphasizing the procedural aspects of the enforcement and application by the national courts of international treaties, foreign substantive laws and rules of the administering arbitral institutions. The conclusion drawn on the results of the case law analysis demonstrates that despite common stereotypes supported by certain investment reports and legislation studies, Moldovan courts have always shown general support towards international commercial arbitration as a preferred method of alternative dispute resolution.

Abstract. In the law of the EC/EU the protection of national minorities is still a marginal matter. The EU has relied on general international law and on a European regional system of international law and, in case of necessity, accepted their norms. But in the 1990s there began a process of "de-economisation of the European integration" and the importance of national minorities became higher. Protection of the national minorities has not become a generally accepted legally binding principle of the EU, although in several legal acts issues of national minorities are mentioned. On the other hand, the political relevance of national minorities' protection is very high. The importance of protection of national minorities in future will probably grow. It is a result of the adoption of the Charter of Fundamental Rights of the EU (2000) and of the discussions regarding the European constitution and the Treaty of Lisbon.

While international judicial forums such as the International Court of Justice ("ICJ"), the International Criminal Court ("ICC"), and regional criminal courts have been important developments, based on actual use and successful results the dispute settlement system of the World Trade Organization ("WTO") has had much greater impact. Most settlement of disputes between persons of different countries takes place, however, not at the ICJ, or the ICC, or the WTO, but in private arbitration and in litigation before national courts. Peace (and justice) are promoted and kept on a regular basis through the process of reaching decisions in specific cases involving specific parties. In all of this, lawyers play the central role-as advocates, as judges, as arbitrators. Lawyers are day-to-day peacemakers. This article considers one part of the evolution of Europe: the developing competence of the European Union over matters of private law, private international law, and judicial cooperation - in other words, the role of the European Union (through the institutions of the European Community) in private litigation.

On October 19, 2004, the European Court of Justice held its first en banc hearing since the 2004 enlargement to twenty-five Member States. The case was Opinion 1/03, involving a request by the Council of the European Union on whether the Community has exclusive or shared competence to conclude the Lugano Convention. While the case on its face deals only with a single convention, it has far broader implications and is likely to influence the development of private international law and private law on a Community level for years to come. This brief article traces the origins of the issues faced in the Lugano case and provides comment on some of its implications for the future.

The effect of the WTO Agreements within the legal order of the EU has been the object of a fierce controversy in the case law of the Court of First Instance and of the European Court of Justice ever since the conception of the WTO. The case law of the Luxembourg Courts clearly indicates that practitioners seem to have explored practically all the boundaries of this extremely fascinating subject. Direct Effect of WTO law is a collection of essays written over a period of more than ten years and chronicles the evolution in the case law of the European Courts in Luxembourg on the enforceability of GATT and WTO law in the EU legal order. Some of the essays concentrate on more controversial subjects such as the status in the EU legal order of decisions taken by the WTO dispute settlement bodies and the question whether the EU institutions should be held liable under EU law for not acting in conformity with WTO law. The book also contains some essays analyzing the opportunities given to EU companies to enforce WTO law through the application of the so-called Trade Barriers Regulation and gives an almost complete picture of how WTO law can be enforced in the EU legal order by individuals.

In the Nineties, the existence of a "spirit of cooperation" between the Court of Justice and the national courts was thoroughly discussed by the doctrine in the light of the preliminary ruling procedure and the requirements of admissibility. But what is the situation nowadays? Is the spirit still there? Is it still the same? And if yes, is it stronger? This article examines the extent of this cooperation having in mind the Lisbon Treaty, the resolution of the European Parliament on the role of the national courts in the European judicial system (July 2008) and the recent Court of Justice case law. Also, it has the ambition to put the issue into the theoretical and more general context of discursive legal pluralism.

On 16 December 2008 the European Court of Justice delivered its judgment in the case C-210/06 Cartesio Bt. It is the latest case in the line of company law cases on freedom of establishment. While closing a chapter opened with Daily Mail some 20 years ago, the Court raises many new questions. Following Daily Mail, Centros, Überseering and Inspire Art, the referring Hungarian court wanted to know whether national company law provisions which prohibit a company, constituted in Hungary under Hungarian company law and entered in the Hungarian Companies Register, to request the transfer of its seat to another Member State of the European Union while remaining governed by Hungarian law, are compatible with Community law. Advocate General Maduro took the view that Articles 43 and 48ECpreclude national rules which make it impossible for a company constituted under national law to transfer its operational headquarters to another Member State. However, against all expectations and the AG Opinion, the European Court of Justice confirmed that in the absence of uniform Community legislation national law decides whether a national company can rely on the freedom of establishment enshrined in Art. 43 EC. The pro-freedom of establishment attitude of the Court witnessed in recent years seems to have yielded to a more conservative approach, upholding the distinctions between outbound v. inbound and primary v. secondary freedom of establishment.

Article 234 is a vital device in ensuring every Member State benefits from the advantages of being part of the EU. The title question raises several issues that need to be resolved in order to understand article 234. First what is article 234, what does it do and what is its role in the community. Then it is necessary to look at how the procedure works and to what extent it fulfils its objectives i.e. do it have any shortcomings. Article 234 is an attempt to prevent a clear danger that Community Law may develop differently in the national courts of the Member States (i.e. be interpreted differently depending on legal traditions of the individual Member State) and as a result the benefits of an open community and a common market would be lost. Therefore it is vital that Community Law has the same meaning and effect in all Member States. This is where article 234 comes into play as it provides an effective way of ensuring uniform application by providing an ultimate authority for deciding the correct meaning and interpretation of Community Law and residing this responsibility on one body to ensure consistency. This one body being the European Court of Justice. Article 234 prevents fragmentation by providing a reference procedure for national courts and creating a partnership between them and the Court of Justice which enables them to seek advice when interpreting various acts of Community Law. Key to this partnership is the fact that the Court of Justice interprets the law and the national courts apply it. These references can be made at any time during a case if it is considered that one is needed. Article 234 manages to ensure uniform application of Community Law by the national courts of the member states by establishing the preliminary reference procedure. The preliminary reference procedure is a way of helping or assisting the national courts in interpreting community law in order that they may apply it correctly. The quotation in the question is very true the reason we have Article 234 is to prevent each member state developing its own version of Community Law because with out Article 234 and the reference procedure it creates the courts in the individual Members States could misinterpret the law or all interpret it differently depending on their own legal traditions. This would then defeat the whole idea behind the EU and the benefits of coming together.

This Handbook deals with the right to life, as guaranteed by Article 2 of the European Convention on Human Rights, and with the case-law of the European Court of Human Rights ("the Court") under that article. In summarising the case-law of the European Court of Human Rights (and where relevant, of the European Commission on Human Rights, abolished by Protocol No. 11 to the Convention) on Article 2, reference is however often also made to more general issues, to other rights in the Convention, and to issues outside the Convention (such as other European or United Nations standards), as reflected in that case-law. This handbook is aimed, in particular, at judges and other legal professionals such as prosecutors and practising lawyers. These need to understand the Convention and the case-law of the Court, in particular when the Convention is formally part of their domestic legal systems - as is the case in most of the member States of the Council of Europe. Indeed, in law, the Convention in many European countries overrides ordinary domestic law. It is therefore crucial for these legal practitioners to be aware of the detailed requirements of the Convention. More specifically, it follows from the supremacy of the Convention that the interpretation of the Convention by the European Court of Human Rights should also be followed by the national courts in these countries. The Court's judgments are not merely advisory or relevant to the respondent State in a given case only. Rather, in Council of Europe member States in which domestic law or jurisprudence proclaims the supremacy of international law in general, and/or of international human rights law or the Convention in particular, the domestic courts must follow the European Court of Human Rights' interpretations of the Convention in their own jurisprudence. It is hoped that this handbook, together with the other handbooks already issued, will help them do so.