Unity of law in the application of the duty of consistent interpretation?
This blog considers whether unity of law should be strived for in the EU law remedy of the duty of consistent interpretation and, if so, how this could be achieved. I explain why it is necessary to differentiate between the national and the EU level when addressing this question. I argue that unity of law is not a pie in the sky on the EU level but that, on account of differences in the national methods of interpretation, the degree of unity will probably not be the same on the national and the EU level. To conclude this blog, I suggest three ideas to achieve a high degree of unity in the application of the duty of consistent interpretation on the national level, and that the Dutch could perhaps learn something from the Germans in this respect.
The Urgenda judgement: legislature and government under intensive judicial supervision
Writing something about the Urgenda judgement (Rechtbank Den Haag 24 June 2015, ECLI:NL:RBDHA:2015:7145) might seem abundant at this point. After all, a lot of literature about the judgement has already been published. Is the judgement really so special? That can, with good reason, not be denied.
The Urgenda Foundation is the organisation for sustainability and innovation which aims to together with companies, governments, civil organisations and individuals, make the Netherlands sustainable more quickly. This foundation has filed a civil case against the State, because according the foundation while the government has recognized the urgency of the climate problems, it has taken insufficient action to prevent dangerous climate change. In the Urgenda judgement the State, on the basis of the standard of due care observed in society as set out in article 6:162 of the Dutch Civil Code, is subject to a periodic penalty payment ordered to reduce the annual greenhouse gas emissions by 2010 by at least 25 percent compared to the 1990 levels. The relevant international provisions for the case cannot be relied on at law at the national judge, in the sense that they are unsuitable to be directly applicable as positive law in the national legal system and they are therefore not binding on all persons as provided in articles 93 and 94 of the Dutch Constitutions. However, the court applies the so-called consequential effect. The latter means that the court, in applying the national open standards, such as the standard of due care observed in society, takes into account international provisions that are not binding on all persons as provided in articles 93 and 94 of the Dutch Constitution.
Should the national day be considered as the birthday of the mother country? The conflict between two kinds of outlooks on the concept of “country”
During the past week, China was celebrating its 67th national day; meanwhile, an intense controversy as to whether the national day should be considered as the birthday of the mother country arose, which has demonstrated Chinese people’s confusion about what constitute a country. This blog seeks to briefly explain where such confusion lies, and how it comes. (more…)
Duality or Complementarity？The Political and Legal Orientations of the Chinese Petitioning Mandate
On 14 September 2016, the Chinese State Bureau for Complaint Letters and Visits (“Bureau”) in Beijing saw 24 lawyers providing legal advice for the petitioners. This was the first experiment of the joint-program between the Ministry of Justice and the Bureau, which aims to resolve litigation-related petitions. With much attention given to the ongoing reforms, this blog offers a brief analysis on the major characteristics and challenges of the Chinese petitioning system. (more…)
Honest judges, trustworthy judges
A few weeks ago, a journalist announced on VGNyhetter, a major Norwergian news website, that 19 Norwegian judges have heard cases in which insurance companies were parties, while the judges had shares in these insurance companies. The journalists Frank Haugsbø and Geir Olsenen have skilfully embroidered their story, including stories from the parties who lost those cases. Those parties now, of course, say that they could have saved a lot of money and effort, or that they would have challenged the judges if they would have known. The question is whether they would have received a different judgement then. (more…)
The BREXIT and the international ambitions of the Dutch judiciary
Earlier this year, the Council for the Judiciary released a plan to establish a Netherlands Commercial Court (NCC). In the plan it was stated that the NCC would start on the 1st of January 2017. By now, a starting date of July 1st, 2017 seems more realistic. The upcoming Brexit makes this, in itself already stimulating, plan even more interesting. Will this boost the chances for this special provision for international commercial cases in Amsterdam? In this blog I will discuss the reasons for this initiative, the innovative aspects of it and its chances of success in light of the Brexit. (more…)
Brexit: why EU leaders should hold their horses
According to art. 50 of the Treaty on European Union (“TEU”, Lisbon version), “any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”. In February of this year the European Parliament published a briefing informing citizens and politicians of the backgrounds and the debate on this provision (published here: http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/577971/EPRS_BRI(2016)577971_EN.pdf). (For those with an academic interest in the issue, I highly recommend the piece by my friend Adam Łazowski, ‘Withdrawal from the European Union and alternatives to membership’ that is referenced). No doubt, the aftermath of the Brexit referendum has brought on a profound constitutional crisis in Britain which will take time to play out. EU leaders, while understandably frustrated and deeply concerned about the harmful consequences of this period of profound uncertainty for the economy and indeed for the very future of the European project, should realize that putting pressure on the UK to submit a notification subject to art. 50 TEU won’t help – and that frankly, it is not the most mature response either. (more…)
Why the Tribunal Dealing with the South China Sea Dispute Should Step Aside to Make Way for a Negotiated Settlement
Increasingly, in the West, in the class rooms of law schools and offices of foreign ministries, international law is being associated exclusively with courts and tribunals. The idea seems to be that something can only be regarded as law if it emanates from an international court. This judicialization of international law overlooks the fact that these international bodies owe their existence to treaties, which are concluded by states, which still are the main actors in international law. (more…)
When It Rains, It Pours: Tracking the recent developments in international criminal justice
International criminal justice has a reputation for being slow and progressing at a ‘glacial’ pace. For example, it took the International Criminal Court (ICC) ten years before it handed down its first judgment in the Lubanga case after it started operating in 2002. Similarly, the International Criminal Tribunal for the former Yugoslavia (ICTY) has a reputation for slowness; particularly after some trials lasted longer than six or more years. Court watchers are all too aware of the slow, sporadic developments coming out of these courts, and often eagerly await judgments. That is why the months of March and April 2016 were so anticipated, as they provided a windfall of developments within international criminal justice. The old expression is true: when it rains, it pours! (more…)
The Unity of Law 3: A step towards a definition and instruments that can optimize the unity of law
In my previous blog I gave a modest impetus to define the concept of ‘the unity of law’ and I have discussed a number of instruments which in any case (also) aim to optimize the unity of law. The following four instruments are distinguished: institutional reform, preliminary ruling procedure, coordination and a differentiated discursive substantiation requirement. The first instrument was discussed in my previous blog. I will now discuss the other three instruments. (more…)