Violations of human rights by transnational corporations and by other ‘private’ global actors raise problems that signal the limits of the traditional doctrine of ‘horizontal effects’. To overcome them, constitutional law doctrine needs to be complemented by perspectives from legal theory and sociology of law. This allows new answers to the following questions: What is the validity basis of human rights in transnational ‘private’ regimes – extraterritorial effect, colère public or external pressures on autonomous law making in global regimes? Do they result in protective duties of the states or in direct human rights obligations of private transnational actors? What does it mean to generalise state-directed human rights and to respecify them for different social spheres? Are societal human rights limited to ‘negative’ rights or is institutional imagination capable of developing ‘positive’ rights – rights of inclusion and participation in various social fields? Are societal human rights directed exclusively against corporate actors or can they be extended to counteract structural violence of anonymous social processes? Can such broadened perspectives of human rights be re-translated into the practice of public interest litigation?

This article considers the question how knowledge of an impending ecological catastrophe is likely to impact on regulatory legitimacy and regulatory effectiveness. If the ultimate aim to safeguard meaningful human life on earth is in acute danger, this is likely to translate into zero tolerance towards non-compliance with environmental rules designed to avert catastrophe. This, in turn, will persuade regulators to employ normative technologies that do not engage with the moral reason of regulatees at all, but leave no option but to comply. In addition, regulators may turn to panoptic surveillance techniques that allow no breaches of rules to remain undetected. Finally, it is argued that if and to the extent that impending ecological catastrophe marks the end of maintaining the status quo as a plausible policy goal, regulators will be more sympathetic towards potentially apocalyptic technologies that carry greater promise for future gain than otherwise would be the case.

This contribution offers a partial explanation of the differences between procedural systems. In most jurisdictions, civil procedural regulations constitute a carefully designed system. Generally, a number of underlying principles, guidelines, theories and objectives can be identified that clarify and justify more specific rules of procedure. It will be argued that the main differences between legal systems flow from different political and theoretical views of those who determine and shape the form of the legal process. This contribution identifies the ideological influences on the rules of procedure in a number of influential jurisdictions.

The article is focused on European constitutionalism as resulting from the transformations following the experiences of totalitarian states. The notion of democracy was then significantly re-shaped, to the extent that democratic devices (federalism and sometimes referendum) were introduced with a view to balance the excesses of a purely representative democracy. The recognition of social rights and of human dignity reacted against totalitarism and, on other hand, against the individualistic notion of rights affecting the XIX century’s constitutionalism. Constitutional review of legislation was introduced, thus overriding the myth of parliamentary sovereignty, particularly the idea of parliament as the sole authority capable of granting fundamental rights.

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.

This paper will investigate for the influence of international legal developments on the drafting and implementation of constitutions, especially the impact of the European Union on the texts of the national constitutions of the EU Member States and its acceding countries.
We will look also at:

1. the influence of history (EU Enlargement) and tradition in the drafting and implementation of constitutions;

2. assessment (especially in the case of the Netherlands) of whether constitutional texts actually serve to achieve the practical implementation of expressed purposes.

Many hopes of the adherents of constitutional reform in the EU remained in vain after the enactment of the Lisbon Treaty. Meanwhile the creeping constitutionalisation of the EU law leads to the empowerment of the UE quasi constitutional court – the Court of Justice of the European Union. This kind of constitutionalism is albeit firmly grounded on judicial cross-border cooperation. The main purpose of this paper is to address the question of whether and how the concept of judicial control based on transactional framework developed in law and economics could effectively supplement if not substitute the notion of constitutional democratic legitimacy. In order to demonstrate that it is logically possible and institutionally feasible to build a system based on circularity, self-referentiality and privatization of legal remedies, the paper contains the economic analysis of the recent development of the EU law which at least partially takes this direction.

The importance of legislation is beyond any dispute. Legislation governed us perhaps even before our birth, certainly during our life and until our death. Even after our death there is still the Estate Duty Act to worry about, although of course the burden passes on to our executors or administrators. But day after day, many more new laws have been proposed and many existing laws have been revised and amended for various reasons and motives. The need for legislation has never diminished but continues to increase. Governments need legislation to govern, by which they achieve their political objectives and public policies. In other words, legislation is needed to affect changes in the law, to interfere with vested rights and interests, and to impose taxes, duties, excise and imposts. Such need originates from one or more of a great many sources such as a commission of inquiry, politicians, a particular pressure group or the public as a whole and also a reaction to social situations which seemingly develop independently or deliberately

This essay examines judicial review in executive/administrative action as an essential tool for curbing the excesses and abuse of delegated legislative powers in Sierra Leone based on the valid assumption that there is a system of administrative law due to a developed system of judicial review in Sierra Leone. To examine and establish the facts, focus is laid on judicial review of administrative/ executive action and not on judicial review of primary legislation.This article first and foremost tried to establish that, the practice of delegated legislation from which judicial review ensues is a necessity in any given democratic society.This piece of work in trying to establish its facts, put forward arguments by scholars and writers in support and against the use of judicial review as an essential tool to curb the abuse and excesses of executive’s action. This is juxtaposed in conjunction with cases laws from Sierra Leone dealing with judicial review.The irrefutable fact this article tried to illustrate is that judicial review is important in any society in curtailing the excesses and abuse of executive actions.

This article considers some of the requirements for good laws, focusing in particular on the drafters’ perspective. It looks first in general terms at the requirements forming part of the rule of law that laws be accessible and predictable. It then examines the drafting of laws in the European Union: how it is done; the concern to make EU laws accessible; and specific features of EU legislative drafting rules and practices, illustrated by reference to Framework Decision 2002/584.

Le droit uniforme de l’OHADA réglemente quelques contrats spéciaux des affaires: le bail; le courtage; la commission; le mandat de l’agent commercial; la société commerciale; le transport des marchandises par route; la vente commerciale. Hormis la société commerciale, seule la vente entre commerçants est longuement régie par 87 Arts. de l’acte uniforme relatif au droit commercial général (AUDCG) dans tous les détails de sa formation, son exécution, son dénouement. L’intérêt du législateur OHADA pour ce contrat se comprend pour, soit plusieurs raisons.

It remains a daunting but not insurmountable challenge to actualize broad-based long term economic development in Africa. Statistics indicate that the poverty level in the continent is very high and the continent’s contribution to global trade remains very low in terms of export outflows. While acknowledging the negative aspects of Africa’s development however, it is important to note that the future may yet become brighter if key steps are taken by law and policy makers in the continent to put in place laws and policies that can facilitate the development process. One of the ways in which economic development can be facilitated is to significantly boost Africa’s contribution to global trade. In this regard, it has been noted that ‘After falling by 2.5% in 2009, export volumes of African countries are expected to increase on average by 3.2% in 2010 and by 5% in 2011.

Les propos qui suivent revendiquent une double impertinence. Celle de la répétition car ils reprennent des points de vue déjà exprimés par d’autres, rappelant une vérité d’évidence reconnue par beaucoup, concernant le projet d’uniformisation du droit des contrats dans l’espace OHADA.¹xActes du colloque ‘Harmonisation du droit OHADA des contrats’, Ouagadougou, 15-17 novembre 2007, disponible à <www.ohada.com/doctrine/Ohadata/D-09-26>. L’impertinence de l’originalité également en essayant de présenter sous un regard nouveau l’ambition d’intégration du droit des contrats exprimée par les autorités de l’Organisation pour l’Harmonisation du Droit des Affaires en Afrique.

Noten

• 1 Actes du colloque ‘Harmonisation du droit OHADA des contrats’, Ouagadougou, 15-17 novembre 2007, disponible à <www.ohada.com/doctrine/Ohadata/D-09-26>.

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.

Multinational Companies may result in culture clashes, incompatibility of Western corporate governance and legal resolution strategies. As one of the most successful joint venture models, the high-profile Danone/Wahaha dispute has been accelerated into a two-year legal feud against the infringement of the famous brand of WAHAHA across jurisdictions. The case represents a significant watershed which reflects the status quo of controversies over cooperation and competition in China. Under the current legal framework, Danone’s withdrawal would serve as a wake-up call for both foreign investors and Chinese companies in the dramatically increasing cross-border merger & acquisitions. The seminal case perfectly illustrates unwritten issues about public opinion, nationalism and the rule of law. Danone v. Wahaha has also been commonly conceived as a landmark case through which Chinese side may verify the fairness of the Western judicial system, while the European party may regard it as a touchstone for China’s investment environment as well as the specific sphere of contract spirit. It also offers myriad lessons, including the need for watertight contracts, IP rights, and international arbitrations.

Dans le demi-siècle écoulé depuis l’accession aux indépendances, les pays africains ont affronté des processus complexes qui ont mis au devant des priorités la construction politique et institutionnelle interne et leur reconnaissance dans le concert des nations du monde. Dans le même temps, loin de profiter de la croissance globale qu’ont connue les pays avancés, les populations du continent africain – et des pays les moins avancés de la planète – ont souffert d’une dégradation progressive de leurs conditions de vie.

L’arbitrage OHADA est gouverné par deux instruments adoptés par le Conseil des Ministres de l’OHADA à Ouagadougou (Burkina Faso), en date du 11 mars 1999; il s’agit de l’acte uniforme relatif au droit de l’arbitrage (ci-après AUA), qui régit l’arbitrage de droit commun dans les pays membres de l’OHADA, et du Règlement d’arbitrage de la Cour Commune de Justice et d’Arbitrage (ci-après Règlement d’arbitrage CCJA), qui fixe dans le détail les règles de l’arbitrage CCJA, dont les grands traits sont tracés par le titre IV du Traité OHADA.