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Nurzat Myrsalieva
Lecturer, American University Central Asia, Bishkek, Kyrgyzstan; LL.M (2005) Indiana University School of Law, Indianapolis.

Christiana Fountoulakis
Dr. iur., Assistent Professor of Private Law, University of Basel, Switzerland. I would like to sincerely thank lic. phil. stud. iur. Ronald Kunz, Mariel Dimsey, LL.M., and dr. iur. Michael Mraz for their final critical review of this paper.

Lord Steyn
A Lord of Appeal in Ordinary from 1995 - 2005; now a member of Essex Court Chambers, 24 Lincoln's Inn Fields, London WC2.

Deirdre Curtin
Professor of International and European Governance, University of Utrecht, The Netherlands. This text constitutes a reworked version of a keynote lecture given at the World Congress of Comparative Law in Utrecht on 17 July 2006.

Andrea Schulz
First Secretary at the Permanent Bureau of the Hague Conference on Private International Law. Since the beginning of 2002, the author has been in charge of the negotiations which led to the Convention on Choice of Court Agreements. This article is an updated reprint of an earlier publication by the same author, The Hague Convention of 30 June 2005 on Choice of Court Agreements, VII Yearbook of Private International Law 1 (2005).

Christiana Dr. iur. Fountoulakis
Assistant Professor in Private Law University of Basel

Amichai Magen
JSD Candidate and Lecturer in Law, Stanford Law School; Fellow, Center on Democracy, Development and the Rule of Law (CDDRL), Stanford University. I would like to express my thanks to Guy Harpaz and Lior Herman for their helpful comments and to the Leonard Davis Institute for International Relations, the Hebrew University, Jerusalem, for organizing the conference Approximation of Laws by Non-EU Countries to the EU Acquis, 27-28 May 2007, in which an earlier version of this article was presented. I am also grateful to CDDRL and Stanford Law School for their generous support of my research.

Vesna Lazic
Associate Professor at the Molengraaff Institute for Private Law, Utrecht University and a Senior Researcher at the T.M.C. Asser Institute, The Hague.

Juan Santos Vara
Associate Professor of Public International Law at the University of Salamanca (Spain). PhD in Law from the University of Salamanca, Master in European Law from the College of Europe (Bruges, Belgium) and Master in European Studies from the University Carlos III of Madrid. He has been a Visiting Fellow at the Harvard Law School, at the Watson Institute for International Studies, Brown University and at the King's College London. The paper was presented at the International Conference on “The Lisbon Reform Treaty: Internal and External Implications,” organized by the Hebrew University of Jerusalem, the Davis Institute for International Relations and the Israeli Association for the Study of European Integration, July 13-14, 2008. The present paper has benefited from the support of the research project: “Las relaciones entre la UE y NU: hacia la defensa del multilateralismo eficaz,” DER2008-05419/JURI, financed by the Spanish Ministerio de Ciencia e Innovación.

Yue Fu
Research associate, Graduate School of Humanities and Social Sciences, University of Tsukuba, Japan.

Giuseppe Martinico
Lecturer in Law at the University of Pisa; PhD, Sant'Anna School of Advanced Studies, Pisa. I would like to thank Emanuele Pollio for his comments and Andrea Serafino and Alberto Montagner for their help in preparing a preliminary version of this work.

Giuseppe Martinico

Oreste Pollicino

Vincenzo Sciarabba
Paragraphs B and D have been written by Giuseppe Martinico (STALS Senior Assistant Editor, Scuola Superiore Sant'Anna); paragraphs C and F by Oreste Pollicino (Associate Professor in Comparative Public Law, Bocconi University, Milan); paragraphs A and E by Vincenzo Sciarabba (Post-doc Researcher in Comparative Public Law, University of Pavia). For the idea of the “untouchable core” see, N. Lavranos, Revisiting Article 307 EC: The Untouchable Core of Fundamental European Constitutional Law Values, in F. Fontanelli, G. Martinico & P. Carrozza, (Eds.), Shaping Rule of Law Through Dialogue: International and Supranational Experiences (forthcoming).

Carol Ronan-Heath
International Institute of Air and Space Law, Leiden University, United Kingdom, c.a.ronan-heath@umail.leidenuniv.nl
Article

From Uneasy Compromises to Democratic Partnership

The Prospects of Central European Constitutionalism

Journal European Journal of Law Reform, Issue 1 2011
Keywords Central Europe, parliamentarism, freedom of religion, Roma people, discrimination
Authors Gábor Attila Tóth
AbstractAuthor's information

    The Central European constitutional democracies were created by the political and constitutional transition of 1989. However, twenty years later, in the light of antidemocratic, authoritarian and intolerant tendencies, it is far from clear whether the negotiated revolution is a story of success or failure. This paper first outlines the constitutional background of revolutionary transition. It shows that the achieved structures and rules do not prevent political communities from realizing the full promise of democracy. Second, this analysis attempts to explore how the century-old historical circumstances, the social environment, and the commonly failed practice of constitutional institutions interact. This section focuses on the constitutional features of presidential aspirations, the privileges of churches and certain ethnic tensions. Finally, the paper argues that the chances of success of liberal democracies depend significantly on extraconstitutional factors. It seems that Hungary is in a more depressing and dangerous period of its history than for example Poland.


Gábor Attila Tóth
Associate Professor, Faculty of Law, University of Debrecen, former senior adviser, Constitutional Court of Hungary. The author welcomes comments via email: tga818@law.unideb.hu.
Article

Methods and Materials in Constitutional Law

Some Thoughts on Access to Government Information as a Problem for Constitutional Theory and Socio-Legal Studies

Journal European Journal of Law Reform, Issue 1 2011
Keywords Citizenship, democracy, government information, representative government, secrecy
Authors Barry Sullivan
AbstractAuthor's information

    To be subject to law, Hobbes argued, is to be deprived of liberty, as we understand it. In this respect, democratic governments are no different from others. Hobbes’s insight has not caused us to abandon our commitments to democracy, but it still challenges us to think hard about the nature of representative government, the nature of citizenship in a democratic society, and the conditions necessary for fulfilling the promise of democratic citizenship. Two recent trends are evident. Some citizens have embraced a more active sense of citizenship, which necessarily entails a more insistent need for information, while governments have insisted on the need for greater concentration of governmental power and a higher degree of secrecy. Much is to be learned from the approaches that various national and transnational regimes have taken with respect to this problem. This essay will consider the problem of access to government information from a comparative perspective and as a problem for constitutional theory and socio-legal studies.


Barry Sullivan
Cooney & Conway Chair in Advocacy and Professor of Law, Loyola University Chicago School of Law.
Article

In the Judicial Steps of Bolívar and Morazán?

Supranational Court Conversations Between Europe and Latin America

Journal European Journal of Law Reform, Issue 1 2011
Keywords courts, dialogue, integration, regionalism, case-law
Authors Allan F. Tatham
AbstractAuthor's information

    This paper explores the issues of judicial dialogue and constitutional migrations between the European Court of Justice (‘ECJ’) and Latin American regional courts. It considers the impact of the ECJ’s ‘constitutional’ case-law regarding supremacy and direct effect on the decisions of the Central American Court of Justice (‘CCJ’) and the Court of Justice of the Andean Community (‘ACCJ’). The study proceeds from a brief exposition of the legal aspects of the EU model of integration, before moving to identify the main factors which led to the selection of Latin American courts and to outline the background to integration in the two sub-regions. In addressing the CCJ and ACCJ, a short history and sketch of their jurisdiction is given before examining the impact of the migration of the integrationist activism of the ECJ on these regional judicial institutions.


Allan F. Tatham
Péter Pázmány Catholic University, Budapest, Hungary. The usual disclaimer applies.

    ICC arbitration was conceived by and for international business. When the International Chamber of Commerce was created in 1920 to combat insularity and protectionism in world trade, dispute resolution was seen as an indispensable part of the services it was to provide. Recognizing that contracts, especially between partners of different cultures, are inevitably exposed to strain, misunderstanding and even, regrettably, sometimes flagrant abuse, the ICC considered it crucial to provide the business world with an appropriate means of overcoming commercial conflict. In the words of Etienne Clementel, the French Minister of Commerce at the time and one of the founders of the ICC, “freedom can truly flourish only if it finds within itself the means to achieve its own moderation”. ICC arbitration was initially developed as a means of self regulation in international commerce.


Jason Fry
LL.B., BCL (Oxon), FCIArb, Secretary General International Court of Arbitration of the International Chamber of Commerce.

    Conflicts of jurisdiction between a state court and an arbitral tribunal occur in two different scenarios: (a) claimant X institutes a court action and the defendant subsequently commences with arbitration or requests to be referred to arbitration (as envisaged by the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards – NYC); and (b) claimant X commences arbitration and the defendant subsequently challenges in a national court. X should be able to seek a stay of the parallel litigation on the ground of the existence of a valid agreement to arbitrate the dispute, but the duty on the part of South African courts to do so is not clearly legislated, nor is it as well-understood as it deserves to be. Various interests have fallen into disharmony in this area of the law.


Christa Roodt
Doctor of Laws (University of Orange Free State), LL.M (University of South Africa), LL.B. (University of Pretoria).
Article

The ECJ Ruling in Cartesio and Its Consequences on the Right of Establishment and Corporate Mobility in the European Union

Journal European Journal of Law Reform, Issue 3-4 2010
Keywords Cartesio, right of establishment, Corporate mobility
Authors Prof. dr.sc. Siniša Petrović and Tomislav Jakšić
AbstractAuthor's information

    Before Cartesio, the case law of the European Court of Justice on freedom of establishment mainly considered company immigration situations, i.e. legal entities moving into another Member State. Cartesio is the first major ruling on company emigration since the 1988 decision in Daily Mail. Consequently, much was expected from Cartesio, notably that it would confirm a company’s right to directly invoke its freedom of establishment in emigration scenarios. However, this was not the case. Although Cartesio introduced some new concepts into the freedom of establishment case law like the concept of company conversion, the freedom of establishment actually took a step backward. This effectively resulted in almost complete disregard of the freedom of establishment in emigration situations - unlike in immigration situations. This partial denial of freedom of establishment, one of the fundamental freedoms of Community law, would seem urge the continuation of work on the new 14th Company Law Directive. In light of the current ECJ case law, only a legislative approach would seem suitable to guarantee non-discrimination in the ongoing regulatory competition between Member States which apply the registered seat theory and those which apply the administrative (real) seat theory.


Prof. dr.sc. Siniša Petrović
Prof. dr. sc. Siniša Petrović is a full professor at the Faculty of Law of the University of Zagreb.

Tomislav Jakšić
Tomislav Jakšić is a Junior Researcher at the Faculty of Law of the University of Zagreb.
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