The evolution of the case law in the field of free movement of goods has been marked by consecutive changes in the legal tests applied by the Court of Justice of the European Union for the determination of the existence of a trade restriction. Starting with the broad Dassonville and Cassis de Dijon definition of MEEQR (measures having equivalent effect to a quantitative restriction), the Court subsequently introduced the Keck-concept of ‘selling arrangements’, which allowed for more regulatory autonomy of the Member States, but proved insufficient to capture disguised trade restrictions. Ultimately, a refined ‘market access’ test was adopted, qualified by the requirement of a ‘substantial’ hindrance on inter-State trade. Contrary to the free movement of goods, the free movement of capital has not undergone the same evolutionary process. Focusing on the ‘golden shares’ case law, this article questions the broad interpretation of ‘capital restrictions’ and seeks to investigate whether the underlying rationale of striking down any special right that could have a potential deterrent effect on inter-State investment is compatible with the constitutional foundations of negative integration. So far the Court seems to promote a company law regime that endorses shareholders’ primacy, lacking, however, the constitutional and institutional legitimacy to decide on such a highly political question. It is thus suggested that a refined test should be adopted that would capture measures departing from ordinary company law and hindering market access of foreign investors, while at the same time allowing Member States to determine their corporate governance systems. |
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Journal | Erasmus Law Review, Issue 4 2016 |
Keywords | Keck, selling arrangements, market access, golden shares, capital |
Authors | Ilektra Antonaki |
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Digital Justice: Introduction |
Journal | International Journal of Online Dispute Resolution, Issue 2 2016 |
Authors | Ethan Katsh and Orna Rabinovich-Einy |
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European Businesses and the New European Legal Requirements for ODR |
Journal | International Journal of Online Dispute Resolution, Issue 2 2016 |
Keywords | online dispute resolution (ODR), alternative dispute resolution (ADR), consumer disputes, EU legislation, e-commerce |
Authors | Graham Ross |
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In terms of practical use outside of e-commerce platforms such as eBay, ODR has not advanced as speedily as many thought might be the case. Two pieces of legislation by the European Parliament applying to consumer disputes, being the European Directive on Alternative Dispute Resolution For Consumer Dispute and the associated Regulation on Online Dispute Resolution have opened up the opportunity for that to change. For the first time, there now is a law that effectively requires businesses to promote ODR. However, with widespread breach, evidence of which is referred to in this paper, this law has not as yet been implemented or honoured as it should be and is in danger that its impact could thereby become counter-productive to its essential objective, albeit not its whole scope, in increasing public confidence in cross-border buying of products and services online. One problem is that the EU decided in their wisdom to stop short of making participation in online ADR mandatory. So we have the odd situation in which it is an offence for businesses to not inform a dissatisfied customer of the web address of an online ADR provider who has been approved under the legislation by the Chartered Trading Standards Institute, yet when that customer seeks to use that service the business can refuse to participate. If refusal to participate is extensive, the situation could lead to a loss of trust generally in a law designed to improve consumer rights and access to justice. This is especially so if traders carry on their website the mandatory link to an EU portal that will refer dissatisfied consumers to an approved provider of online ADR, and which may have been a deciding factor for that consumer in selecting the particular trader to buy from, yet, when a complaint arises, refuse to participate in the provider selected by the consumer. |
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ChAFTA, Trade, and Food SafetyWhen the Rubber Hits the Road |
Journal | European Journal of Law Reform, Issue 4 2016 |
Keywords | food safety laws in China and implementation issues, China-Australia Free Trade Agreement (ChAFTA), agricultural trade, corporate social responsibility, collaborative governance |
Authors | Ying Chen |
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Over the past decade, food safety has evolved into a compelling issue in China. The Chinese government has been committed to strengthening the regulatory framework. A series of laws and regulations ensuring the quality and safety of food in the interests of public health have been promulgated. However, a fairly comprehensive set of laws, along with harsh punishments, does not substantially deter food safety violations. Rather, foodborne illnesses continue to occur on a daily basis. How to improve food safety has become China’s national priority; it is also the main focus of this research. This article determines that one of the main obstacles to food safety is poor implementation of laws. It identifies the external and internal impediments to food safety governance in China. It further proposes an evolving series of potential solutions. Externally, weak enforcement undermines the credibility of the food safety laws. Internally, food manufacturers and distributors in China lack the sense of corporate social responsibility (CSR). To effectively reduce or even remove the external impediment, it is imperative to improve the overall governance in various sectors. As for the internal impediment, incorporating CSR principles into business operations is vital for food safety governance. In fact, the enforcement of many regional trade agreements, in particular, the enforcement of China–Australia FTA (ChAFTA) will largely increase market share of Australian food products in China. Undoubtedly, Chinese food businesses will face unprecedented competition. The pressure to gain competitive advantages in food markets yields an enormous change in motivation for Chinese food businesses. Chinese food companies will ultimately be forced to ‘voluntarily’ integrate CSR principles into their business operations. A significant change in the food sector is expected to be seen within the next decade. The article concludes that better practice in food safety governance in China requires two essential elements: a comprehensive regulatory and cooperative framework with essential rules and institutions, and an effective implementation mechanism involving both the public and private sectors. |
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Systems Thinking, Big Data, and Data Protection LawUsing Ackoff’s Interactive Planning to Respond to Emergent Policy Challenges |
Journal | European Journal of Law Reform, Issue 4 2016 |
Keywords | big data, data protection, data minimization, systems thinking, interactive planning |
Authors | Henry Pearce |
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This article examines the emergence of big data and how it poses a number of significant novel challenges to the smooth operation of some of the European data protection framework’s fundamental tenets. Building on previous research in the area, the article argues that recent proposals for reform in this area, as well as proposals based on conventional approaches to policy making and regulatory design more generally, will likely be ill-equipped to deal with some of big data’s most severe emergent difficulties. Instead, it is argued that novel, and possibly unorthodox, approaches to regulation and policy design premised on systems thinking methodologies may represent attractive and alternative ways forward. As a means of testing this general hypothesis, the article considers Interactive Planning, a systems thinking methodology popularized by the organizational theorist Russel Ackoff, as a particular embryonic example of one such methodological approach, and, using the challenges posed by big data to the principle of purpose limitation as a case study, explores whether its usage may be beneficial in the development of data protection law and policy in the big data environment. |
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The Hungarian Cold Food Voucher CaseA Somewhat Rigorous Approach of the Court on the Interpretation of Free Movement Provisions |
Journal | Hungarian Yearbook of International Law and European Law, Issue 1 2016 |
Authors | Réka Somssich |
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Journal | Netherlands Journal of Legal Philosophy, Issue 3 2016 |
Keywords | Basic rights, Right to justification, Discourse theory, Non-domination, Kant |
Authors | Rainer Forst |
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In this paper, I suggest a discourse theory of basic legal rights that is superior to rival approaches, such as a will-based or an interest-based theory of rights. Basic rights are reciprocally and generally justifiable and binding claims on others (agents or institutions) that they should do (or refrain from doing) certain things determined by the content of these rights. We call these rights basic because they define the status of persons as full members of a normative order in such a way that they provide protection from severe forms of legal, political and social domination. The very ground of these rights is the status of persons as free and equal normative authorities within the order they are subject to. In other words, these rights are grounded in a fundamental moral right to justification. |
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Reimagining National Regulatory Approaches to Third Party Liability InsuranceTowards a Single Aggregated Policy |
Journal | International Institute of Space Law, Issue 4 2016 |
Authors | Edmond Boulle |
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Legal Issues of a Moon VillageFrom the Application of Current Space Law to the New Challenges of International Cooperation |
Journal | International Institute of Space Law, Issue 1 2016 |
Authors | Éloi Petros |
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