Although long considered alien to the civil law tradition, the publication of separate dissenting or concurring opinions is now permitted by the majority of European constitutional courts, the only exceptions being the Austrian, Belgian, French, Italian, and Luxembourgish constitutional courts. The decades-long history of dissenting opinions in the practice of several European constitutional courts calls for an analysis. While there is an extensive literature in the United States regarding the use of dissenting opinions, comprehensive empirical research is still absent in Europe. American scholars have conducted research from several different points of view. Legal scholars have dealt primarily with the relationship between dissenting opinions and the doctrine of binding precedent, and have tried to solve the problem of the precedential value of plurality decisions, e.g. decisions lacking a reasoning shared by the majority of the judges. Political scientists, for their part, have studied the policy-making role of judges and strategic opinion-writing. Scholars of law and economics have analyzed the costs and benefits of writing separately. Even judges themselves have often expressed their own thoughts in essays or conference speeches on the matter.

There is no general body of procedural law for decision-making in international organizations. At the same time, many of the more than 230 existing international organizations (IOs) exercise public power through legislative and regulatory activities involving a myriad of decisions taken within these institutions every day. These decisions shape societal perceptions of a wide range of pressing humanitarian-, ecological, technical- and scientific issues and direct actions taken in these fields. From a rule of law perspective any exercise of public power outside a limiting framework of public law is reason for concern. According to the domestic rule of law traditions, public law is supposed to prescribe the form in which public power is exercised. It regulates the process of decision-making by establishing binding procedures, including procedural rights of participants and affected individuals. In case of unlawful exercise of power by public officials affected persons and entities have legal recourse to an independent court or tribunal. If formalized procedural constraints for the exercise of public authority are important at the national level they are all the more so at the international level since conflicts over substantive legal standards and disagreement over community values are usually more acute.

Almost half of all Holocaust victims remain nameless statistics. Just over three million names of Jewish Holocaust victims are known today, representing little more than half of the victims. It is estimated that when all names are retrieved from published and unpublished documents the total number may rise to four million, which leaves two million unknown names. Since memory is closely connected to the identity symbolized by a name, those who cannot be named cannot be remembered. To retrieve a name is to rescue a person from oblivion.

Corrupt practices in organizations are commonly explained via the rational choice of individual employees, with the benefits of deviant actors at the heart of the theoretical approach. This Article challenges the rational choice perspective with reference to cases of corruption in which the organizational benefits are crucial and personal gains negligible. The authors propose to embed the concept of “useful illegality” (Luhmann) into an institutional theory framework and develop a set of indicators for the systematic comparison of individual case studies. Exemplary analyses of two landmark cases of corporate bribery on behalf of German corporations' subsidiaries abroad (Siemens Argentina and Magyar Telekom) show that active corruption was neither simply a function of individual deviance, nor of personal gain. In contrast, institutional theory allows the modeling of organizational deviance as a function of unwritten rules that lend legitimacy to the deviant behavior of bribe payers. Despite plentiful opportunities in the periphery of these two multinational corporations, the few instances of personal gain were either in line with the organizational incentive structures (as in Telekom) or attributable to the loss of membership (as in Siemens). Mostly high-ranking employees, loyal to their organization, committed those crimes at high personal risks. The discussion of factors that explain why these “company men” nonetheless complied with the unwritten rules, in support of organizational benefits, leads the authors to conclude with likely consequences for effective regulation. They argue that it is the usefulness of the illegal behavior for the organization, its entrenchment in organizational cultures, and amplified adaptation problems with regard to changing institutional environments that explain what makes corrupt practices so hard to control and to regulate in a formal legal organization.

The right to data portability (RtDP) introduced by Article 20 of the General Data Protection Regulation (GDPR) forms a regulatory innovation within EU law. The RtDP provides data subjects with the possibility to transfer personal data among data controllers, but has an impact beyond data protection. In particular, the RtDP facilitates the reuse of personal data that private companies hold by establishing a general-purpose control mechanism of horizontal application. Article 20 of the GDPR is agnostic about the type of use that follows from the ported data and its further diffusion. We argue that the RtDP does not fit well with the fundamental rights nature of data protection law, and should instead be seen as a new regulatory tool in EU law that aims to stimulate competition and innovation in data-driven markets.

What remains unclear is the extent to which the RtDP will be limited in its aspirations where intellectual property rights of current data holders—such as copyright, trade secrets and sui generis database rights—cause the regimes to clash. In such cases, a reconciliation of the interests might particularly confine the follow-on use of ported data again to specific set of socially justifiable purposes, possibly with schemes of fair remuneration. Despite these uncertainties, the RtDP is already being replicated in other fields, namely consumer protection law and the regulation of non-personal data. Competition law can also facilitate portability of data, but only for purpose-specific goals with the aim of addressing anticompetitive behavior.

We conclude that to the extent that other regimes will try to replicate the RtDP, they should closely consider the nature of the resulting control and its breadth and impact on incentives to innovate. In any case, the creation of data portability regimes should not become an end in itself. With an increasing number of instruments, orchestrating the consistency of legal regimes within the Digital Single Market and their mutual interplay should become an equally important concern.

The term principle is ubiquitous in the thematic studies and the cross-cutting studies of this research project on the exercise of public authority by international institutions. Apparently its legal analysis and normative framing is difficult to achieve without principles. This is no specificity of this undertaking: Legal research on the public authority of international institutions regularly deals with the issue of principles. General principles for all international institutions are of specific interest as they might tie the various institutions into one legal universe. Yet, precisely their variety, even heterogeneity raises the question if such principles can be anything but “stars which give little light because they are so high.” This quotation from Francis Bacon's “On the Advancement of Learning” precedes Edward Carr's classical study on the problems of a sweeping, principled and idealistic approach to international phenomena.

This essay is a true working paper, a work-in-progress that raises a set of questions that I am not yet sure how to answer. The questions are not unknown; indeed, they lurk in the shadows of scholarly discourse on the three systems I will examine. They are, however, often ignored in research and commentary on the constitutional law, and they have never been the focus of comparative inquiry. I nonetheless will argue that the answers one gives to them will bear directly on how we should understand the nature, evolution, and political (i.e., normative) legitimacy of legal systems.

This article analyzes the recent judgment of the European Court of Justice (ECJ) in Gauweiler, answering the first preliminary reference ever by the German Constitutional Court (BVerfG), on the legality of the Outright Monetary Transaction (OMT) program of the European Central Bank (ECB). As the article explains, the ECJ rejected any possible claim of illegality of a key program devised by the ECB at the height of the Euro-crisis. However, because the BVerfG had defined the OMT program as ultra vires, and had threatened to strike it down if the ECJ did not reach the same result, the article defends the principle of the supremacy of European Union (EU) law, indicating that a possible nullification of the OMT program by the BVerfG would be clearly unlawful. To re-affirm the supremacy of EU law, the article argues that this principle is functional to ensure the equality of the member states before the law, preventing each country of the EU from cherry-picking which provisions of EU it likes or not. As the article suggests, respect of the principle of the supremacy of EU law – including by the BVerfG – is ultimately in the interest of every EU member state, including of Germany.

Populist constitutionalism is an increasingly discussed topic, but so far the analysis of the interrelation between populism and constitutionalism lacks a more systematic and comparative approach, able to bring out significant variety. Most of the recent literature on the phenomenon focuses on (right-wing) populism as a threat to constitutional democracy. This Article sets out to contribute to a more comparative and comprehensive discussion of the relation between varieties of populism—situated on a continuum from left- to right-wing, but also from national to transnational—with varieties of constitutional projects. The objective of this Article is threefold. First, I argue that it is problematic to consider legal constitutionalism as exhausting the possibilities of constitutionalism. Second, if populism is reduced to right-wing projects and as an unequivocal threat to liberal democracy, it becomes difficult to distinguish between dissimilar manifestations of populist projects, in particular regarding constituent politics. Third, while hardly any attention has been paid to constitutionalism and populist claims on the transnational level, in the European context, transnational forms of populism and constituent politics manifest themselves frequently, articulating an incisive critique on the European constitutional and political status quo, and contributing to a re-imagination and democratization of the European constitutional reality.

Though Company Laws of the United States and Germany have much in common, they are opposite in many important ways. While the Anglo-Saxon Law derives from Common Law, German Law has its origin in the Civil Law.

La Porta et al. are not the only ones highlighting that the quality of shareholder protection varies across different jurisdictions depending on which legal system family the jurisdiction belongs. Pistor and Siems went a step further, highlighting that variations in market systems are explainable by more fundamental factors than law, like differences in the underlying ground rules.

Legal proceedings against Siemens AG arising from allegations of bribery were concluded on 15 December 2008 in Munich, Germany, as well as in Washington, DC. The Siemens case has been the largest of its kind. It has changed the compliance landscape and has brought criminal law out of its dark corner and to the attention of the corporate community. Board directors and other managers have painfully become aware that noncompliance with criminal law may not only threaten the existence of a company, but also may lead directly to personal criminal liability. The subject of compliance has also raised the attention of legal advisors and accountants that naturally must recommend the “best standard,” especially if the sensitive subject of corruption is concerned. Last but not least, prosecutors now have a deeper inside knowledge of corruption structures than ever before. Thus, compliance standards tend to rise expeditiously even without regulators taking any action. Siemens thereby smartly has lifted compliance to the “cornerstone” of its business and generally - in particular when it comes to anti-corruption programs -presents its improved and expanded compliance organization as a leading example.

The Inter-American Court of Human Rights has proven a particularly active defender of human rights in Latin America. The Court has developed an innovative and creative jurisprudence with respect to all kinds of human rights violations, including forced disappearances, extrajudicial killings, violations of indigenous peoples' rights or those of undocumented migrants. Legal scholars have praised the Inter-American Court for its effective protection of human rights and even the International Court of Justice has drawn on the judgments of the Inter-American Court. The Inter-American Court has, however, also been criticized for adopting an overly broad standard of review, exceeding the competences conferred on it in the American Convention on Human Rights (ACHR, Convention) and for its detailed reparation orders which encroached on the states' internal domestic affairs. Put differently, the Court was blamed for being a too active judicial lawmaker. It has therefore been suggested that the Inter-American Court would be well advised to pay more attention to national sovereignty and the consent of the regional community of states when exercising its adjudicative function.

It is common for reformist academics, human rights advocates, and political liberals to bemoan harsher public attitudes towards crime and criminals, populist posturing by politicians, and more repressive penal policies. Some years ago, sociologist David Garland, a leading scholar of this subject, described increasingly repressive strategies of crime control in contemporary Britain, Australia, and the United States, ‘and elsewhere, too'. Some years later Hans-Jörg Albrecht called Garland to task for that ‘and elsewhere, too,’ noting that what happens in English-speaking countries does not inexorably happen elsewhere and that penal policies in many Western countries were not becoming more repressive or more politicised in parallel with American and British developments.

This article discusses the legal concept of the person against the background of technological developments. Emerging technologies are offering radical ways to transform the biological and physical aspects of life. Several legal scholars claim that the technological artificialization of human life also calls for a more artificial, disembodied account of the natural person in law. According to them, the legal distinction between natural persons (human legal subjects) and artificial persons (non-human legal subjects, such as corporations) is becoming diluted and increasingly redundant. This article argues that, in an era of growing technological and postmodern disembodiment, the traditional legal distinction between natural and artificial persons remains important, albeit in a different form. An examination of the legal concept of the person in biomedical law suggests that law's category of the natural person still has its merits, not just despite these technological developments, but, remarkably enough, also because of them.

This contribution revisits the Bundesverfassungsgericht's order for reference in the Gauweiler case and focuses on two aspects of that order that until now have not received much scholarly attention. The first concerns the German federal constitutional court's dissociation of constitutional identity review under the German Basic Law from national identity review under Article 4(2) TEU. While the decision on the Lisbon Treaty had suggested that the two go “hand in hand”, the Bundesverfassungsgericht now emphasizes the “fundamental” difference between the concept of national identity under Article 4(2) TEU on the one hand and the German concept of constitutional identity on the other. The second element is the German federal constitutional court's contention that its approach to ultra vires and constitutional identity review can also be found in the constitutional law of many other member states. Yet, careful analysis demonstrates that while there does indeed seem to be a trend in that direction, and several elements of the German approach can also be found in other countries, very few national courts are as adamant as the Bundesverfassungsgericht, and only a handful have developed their position with the same level of detail and ardor.

“Sports law is not just international; it is nongovernmental as well, and this differentiates it from all other forms of law.” Sports rules are genuine “global law” because they are applied across the entire world, they involve both international and domestic levels, and they directly affect individuals: This happens, for instance, in the case of the Olympic Charter, a private act of a “constitutional nature” with which all States comply, or in the case of the World Anti-Doping Code, a document that provides the framework for the harmonization of anti-doping policies, rules, and regulations within sports organizations and among public authorities.

Since the late 1990s investment treaty arbitration has developed into one of the most vibrant fields of international dispute settlement with now almost 400 known cases. It involves claims by foreign investors against host States for breach of obligations assumed under one of the more than 2700 bilateral investment treaties (BITs), under the numerous investment chapters in bilateral or regional free trade agreements, including the North American Free Trade Agreement, or under sectoral treaties such as the Energy Charter Treaty. All of these instruments offer comprehensive protection to foreign investors by setting down principles of substantive investment protection, including national and most-favored-nation treatment, fair and equitable treatment, full protection and security, protection against expropriation without compensation, and free capital transfer. They also allow investors to enforce these standards in arbitral proceedings directly against the host State, most commonly under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). Investment treaty arbitration thereby not only empowers foreign investors under international law, but also introduces investment treaty tribunals as novel actors into the arena of international investment law. Although arbitration has been a classic form of dispute settlement on the State-to-State level, including for the settlement of investment-related disputes, modern investment treaty tribunals have wider jurisdiction and are more removed from State control than any of their predecessors.

“Margin of appreciation” refers to the power of a Contracting State in assessing the factual circumstances, and in applying the provisions envisaged in international human rights instruments. Margin of appreciation is based on the notion that each society is entitled to certain latitude in balancing individual rights and national interests, as well as in resolving conflicts that emerge as a result of diverse moral convictions. In this regard, the doctrine is analogous to the concept of judicial discretion, where a judge, in line with certain constraints prescribed by legislation, precedent or custom, could decide a case within a range of possible solutions. The role of discretion is indispensable not only for bridging the gap between the law and changing realities of dynamic social organisms, but also for answering the particular questions of a given case in the absence of overall enacted or case law. In other words, judges are entitled to exercise discretion to make fair decisions in a specific case, without being locked into a formula that might not be applicable to every scenario.

On 30 June 2009, the Second Senate of the German Federal Constitutional Court handed down its long-awaited decision on the compatibility of the Treaty of Lisbon with the German Constitution, the Basic Law. It was no surprise that the Court upheld the constitutionality of the treaty. Even the plaintiffs could not have imagined in their wildest dreams that the Court would actually say “no”. What is more than disturbing, however, is the tortuous way in which the Court's vast and verbose opinion purports to be justifying the approval of the treaty. There is probably no other judgment in the history of the Karlsruhe Court in which the argument is so much at odds with the actual result. To the point of perplexity and bewilderment, the reader of the opinion is hardly able to find any reasons supporting the outcome of the case. At the moment when the Court approves the most far-reaching revision of the European founding treaties since Maastricht, it does not present any serious argument supporting the conclusion it has reached, except sketchy evocations of a principle of “openness towards European law” it finds enshrined in the Basic Law and brief solemn reminders of a murderous past. Instead, the main thrust of the argument is a ringing indictment of European integration based on a certain idea of egalitarian and majoritarian parliamentary democracy that the Court derives from the Basic Law. Unfortunately, this standard of democratic legitimacy can only describe certain centralized states; it is unable to account for federal States, including Germany, and cannot be made to fit the federal system of the European Union.