German Law Journal最新文献

{"title":"The Covid 19 Exogenous Shock and the Crafting of New Multilateral Trade Rules on Subsidies and State Enterprises in the Post-Pandemic World","authors":"L. Borlini","doi":"10.1017/glj.2023.12","DOIUrl":"https://doi.org/10.1017/glj.2023.12","url":null,"abstract":"Abstract This Article discusses existing WTO rules on subsidies and state enterprises, relevant caselaw and reform prospects in light of key geopolitical developments and changes in the global economy emerging in the aftermath of the Covid-19 pandemic. Following a general introduction, the Article critically analyzes present WTO rules on industrial subsidies, focusing inter alia on the new problems raised by activist industrial policies pursued by global trading powers, foreign subsidization, the climate change shock and environmental exigencies. It then shifts attention to the application of WTO rules on subsidies to the state sector and the increasing demands for new international trade rules on non-subsidies measures to address the negative spillover effects on trade from government influence on state-owned enterprises (SOEs). With respect to each of these matters, the Article first clarifies the terms of the problem in relation to existing WTO rules and caselaw, and next examines the question of how, and to what extent, “deeper” free trade agreements (FTAs)—those that experts designate as models for WTO reforms on the matter—establish new rules that permit to adequately address the trade concerns raised by SOEs’ commercial and financial activities. Based on this multi-layered analysis, the article concludes by examining prospects of reform of WTO rules on state interventionism.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"24 1","pages":"72 - 101"},"PeriodicalIF":1.3,"publicationDate":"2023-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48491150","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Blind Spot: Trade and Competition Law—the Space Between the Silos","authors":"Eleanor M. Fox","doi":"10.1017/glj.2023.9","DOIUrl":"https://doi.org/10.1017/glj.2023.9","url":null,"abstract":"Abstract Trade law and competition law have grown up in their separate silos. This means that restraints by the states and restraints by private parties are treated in separate boxes, and with few exceptions, they have been treated so through the years. Yet, some of the worst restraints that do some of the greatest damage are best characterized by the synergy between the two. These trade-and-competition, or hybrid public/private, restraints fall under the radar screen, and defendants in litigation play one set of laws off against the other, hiding behind limits and immunities. This is the Blind Spot of the Article’s title – the space between the silos. This Article unearths the Blind Spot, gives examples of what we know and what we need to know, and proposes a methodology to illuminate and eliminate the Blind Spot.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135096507","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"GLJ volume 24 issue 1 Cover and Front matter","authors":"","doi":"10.1017/glj.2023.20","DOIUrl":"https://doi.org/10.1017/glj.2023.20","url":null,"abstract":"","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":" ","pages":"f1 - f3"},"PeriodicalIF":1.3,"publicationDate":"2023-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47483518","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Biden Administration’s Trade Policy: Promise and Reality","authors":"T. Schoenbaum","doi":"10.1017/glj.2023.7","DOIUrl":"https://doi.org/10.1017/glj.2023.7","url":null,"abstract":"Abstract This Article critically analyzes seven elements of the Biden administration trade policy: (1) buy American; (2) tariffs; (3) World Trade Organization; (4) free trade agreements; (5) China; (6) technology; and (7) Russia. Although President Biden has made a clean break from Trump policies in many areas, this is not the case when it comes to international trade. Regretfully, Biden has chosen to keep in place most of the failed trade policies of his predecessor—the Trump tariffs and the China trade war. It is not too late to shift ground, to negotiate mutual abolition of the Trump tariffs, to open free trade negotiations with the EU and UK, to join the Comprehensive and Progressive Trans-Pacific Partnership, to adopt a multilateral strategy with allies to check Chinese trade excesses, and to reengage with the World Trade Organization. Topping the list of needed reforms of the multilateral trading system are: (1) subsidies; (2) state-owned enterprises; and (3) forced technology transfer. These are best addressed through a WTO plurilateral agreement and/or preferential trade agreements. The Biden administration should prioritize these urgent reforms. Rather than promoting “free” trade and multilateral trade reforms, the Biden administration continues its predecessor’s nationalistic policies so that trade serves domestic political ends. Such state intervention in trade policy consists of the strategic use of tariffs, subsidies, “buy American” rules, and regional trade arrangements without regard to the rules of the multilateral trading system. These new policies represent a decisive retreat from globalization and openness to trade. The Congress, directed by the Biden administration, has adopted a far-reaching industrial policy in the form of four laws that subsidize key sectors of the U.S. economy: American Rescue Plan Act ($40 billion); Infrastructure and Jobs Act ($1.2 trillion); Inflation Reduction Act ($369 billion); and Chips Act ($252.7 billion). This subsidization coupled with “buy American” protectionism constitute a departure from the free trade ideal that has characterized U.S. policy since the end of World War II.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"24 1","pages":"102 - 124"},"PeriodicalIF":1.3,"publicationDate":"2023-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45294315","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Social Media Platforms within Internal Market Construction: Patterns of Reproduction in EU Platform Law","authors":"Miikka Hiltunen","doi":"10.1017/glj.2022.80","DOIUrl":"https://doi.org/10.1017/glj.2022.80","url":null,"abstract":"Abstract The European Union’s new regulatory agenda targeting online platforms such as social media has been presented as a progressive watershed moment after a long period of regulatory restraint. The attempt to construct an internal market lends legal competence to the two centerpieces of this agenda—the Digital Services Act (DSA) and the Digital Markets Act (DMA). This Article analyzes the Union’s attempts to govern online platforms as a part of internal market construction. After examining the underlying aims of the internal market, the Article proceeds to analyze how those aims have been operationalized in existing EU electronic commerce law and more recently in the DSA and DMA proposals. The Article argues that the Union regulatory agenda is not particularly transformative. While the DSA and DMA introduce many novel regulatory mechanisms with an equalizing potential, they also remain faithfully committed to the aims and pre-existing mechanisms of internal market construction that have enabled the rise of platform corporations in the first place. Thus, the proposals risk reproducing and legitimizing various inequalities in the European digital economy. The article seeks to connect alternative visions of platforms with the re-imagination of internal market construction.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"23 1","pages":"1226 - 1245"},"PeriodicalIF":1.3,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48616732","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"GLJ volume 23 issue 9 Cover and Front matter","authors":"","doi":"10.1017/glj.2022.82","DOIUrl":"https://doi.org/10.1017/glj.2022.82","url":null,"abstract":"","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":" ","pages":"f1 - f2"},"PeriodicalIF":1.3,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46454287","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Divisible College: A Day in the Lives of Public International Law","authors":"Jason A. Beckett","doi":"10.1017/glj.2022.79","DOIUrl":"https://doi.org/10.1017/glj.2022.79","url":null,"abstract":"This is an article about two things. First, the bifurcation of public international law (PIL) into two distinct forms: The material and the narrative. And second, the methodological fragmentation of international lawyers into discrete communities. After setting the substantive fragmentation of PIL as the context of analysis, I deploy Susan Marks’ concept of “false contingency” to distinguish material and narrative PIL. I briefly examine each, and their interactions, before turning to a specific manifestation of material PIL that I call the Global Legal Order (GLO).I then sketch the radical indeterminacy of narrative PIL, its manifestations in the ontological indeterminacy of the commonly accepted sources of PIL, and its source in PIL’s lack of authority and institutionalization. This contrasts with the determinacy and authority of the GLO. Next, I turn to the “fragmentation” of international lawyers into distinct “communities of practice.” In fact, this process turns out to be one of agglomeration, international lawyers are constructed within communities of practice, which glom together to create the appearance of PIL.Finally, I turn to how these communities function by pitting “performances of legality” in “vicarious litigation,” using the Chagos Islands case as an illustration. This is contrasted with the functioning of the operative legal system that is the GLO. I examine the constituent institutions of this system, and how they operate together to produce direct and indirect governance in under-developed states. In practice, this policy imposition immiserates states and antagonizes local populations. It necessitates oppressive governance which entails what narrative PIL determines to be “human rights abuses.”","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"23 1","pages":"1159 - 1192"},"PeriodicalIF":1.3,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41814092","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Digital Euro and Energy Considerations: Can the ECB Introduce the Digital Euro Considering the Potential Energy Requirements?","authors":"A. Mooij","doi":"10.1017/glj.2022.78","DOIUrl":"https://doi.org/10.1017/glj.2022.78","url":null,"abstract":"Abstract The ECB has two mandates its primary and secondary mandate. Its primary mandate has been the focus of many discussions but its secondary mandate is less frequently discussed. Nevertheless this mandate has important objectives and should not be considered obsolete. This article examines the legal status of the secondary mandate of the ECB with regard to climate change. In particular this article will consider the role of the secondary mandate with regard to the Digital Euro and energy targets. The Digital Euro can be used as a monetary tool and improve payment systems. However, depending on its design the Digital Euro can use a considerable amount of energy. This article concludes that if the design of the Digital Euro does not impact the monetary objectives, the secondary mandate of the ECB determines the design of the Digital Euro.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"23 1","pages":"1246 - 1265"},"PeriodicalIF":1.3,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42938283","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Urbanizing Human Rights Law: Cities, Local Governance and Corporate Power","authors":"M. Pieterse","doi":"10.1017/glj.2022.77","DOIUrl":"https://doi.org/10.1017/glj.2022.77","url":null,"abstract":"Abstract This article considers ways in which human rights law ought to respond to a growingly urban global order of blurred private—corporate—and state power. Fragmented and dispersed power comes together, in different configurations of public and private, in the cities and towns of the world. For this reason, local government presents the appropriate scale at which to re-conceptualize the operation of international human rights norms, also against private power. This requires engaging not only with the reach and leanings of international human rights standards but also with the manner in which they are rendered applicable, through domestic constitutional law, against state and non-state actors at a local scale. The urbanization of human rights law accordingly also requires a second look at the powers, competencies and responsibilities of urban local government under domestic constitutional law.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"23 1","pages":"1212 - 1225"},"PeriodicalIF":1.3,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44138295","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Conflicting Conceptions of Hate Speech in the ECtHR’s Case Law","authors":"S. Sottiaux","doi":"10.1017/glj.2022.81","DOIUrl":"https://doi.org/10.1017/glj.2022.81","url":null,"abstract":"Abstract This article argues that the ECtHR uses two conflicting tests to assess the same types of hate speech. This results in legal uncertainty at best, and arbitrariness and double standards at worst. To remedy the present situation, I propose a two-track strategy. To begin with, the Court should abandon its “bad tendency” approach, a test prone to abuse by governments to silence political dissent under the guise of fighting hate speech, for a set of uniform criteria to assess hate speech-restrictions, in line with its current incitement approach. In addition, however, to compensate for the loss of protection against severe forms of vilification which do not meet the incitement-criteria, the Court should formulate a new category of unprotected speech, to be defined as intentional intimidation or harassment.","PeriodicalId":36303,"journal":{"name":"German Law Journal","volume":"23 1","pages":"1193 - 1211"},"PeriodicalIF":1.3,"publicationDate":"2022-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"56613189","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}