The purchase of Covid-19 vaccines by the EU Commission as agent for the Member States has caused substantial political discussion, including a lawsuit against the producer AstraZeneca in Brussels in 2021. The article looks at these purchase contracts as examples for a problematic use of “best efforts“ clauses in commercial contracting, considering some key jurisdictions. The clauses are discussed from a drafting perspective, including their function and their theoretical background in comparative law. It concludes with a primer for the drafting process, looking at some basic contracting schemes for softening or intensifying obligations.

The aftermath of protests triggered by a brutal gang-rape in New Delhi in December 2012 was archetypal of the broader women’s movement in post-independence India. The primary demands of the social movement to address sexual violence against women were wrapped in the language of rights-based reforms in criminal law provisions. The state responded to the social mobilization in the form of criminal law amendments, while blindsiding key recommendations from feminist groups. This Article revisits pertinent Law Commission reports, subsequent criminal law reforms, and case law on sexual violence against women to analyze how the negotiations between the women’s movement and the State on the seemingly irreconcilable demands of sexual autonomy and punishment for sexual violence. We take account of the intended and unintended consequences of this reliance on criminal law as one of the primary tools in the arsenal of Indian women’s movements. We argue that engagement on the plane of criminal law to address sexual violence against women is a case of limited imagination at best and counter-productive at its worst. This approach of the movement and feminist groups is to react to the “crime” of sexual violence after the fact, leading to distraction from much warranted structural responses. We argue that this approach makes it harder to conceptualize and implement more forward-looking relational models of responsibility that are necessary to address the structural injustice of systemic sexual violence against women.

The adoption of the Rome Statute of the International Criminal Court (ICC) was widely lauded as a success with regard to the recognition and potential prosecution of conflict-related sexual violence. More than twenty years later, however, many observers are disillusioned with the ICC’s dire track record concerning the implementation of its progressive legal framework. In many cases, the Court and particularly its Prosecutor have been criticized for failing to adequately address and prioritize sexual violence, culminating in only a single final conviction since 2002. Nevertheless, the ICC’s emerging practice shows progress with regard to the conceptual understanding of conflict-related sexual violence and the realization of the Statute’s full potential in ensuring accountability for sexual crimes. Taking into account the evolving jurisprudence, the Article explores the persisting challenges and the perceived gap between aspirations and reality regarding the prosecution of sexual violence at the ICC.

This Article is based on the professional experiences of the authors working as lawyers and activists towards accountability for sexualized and gender-based crimes under international law. It provides a critical evaluation of universal jurisdiction cases in Germany addressing conflict-related sexualized violence. In particular, the article looks deeper into the Office of the German Federal Prosecutor General of the Federal Court of Justice’s (GBA) approach to gender while taking note of the barriers in the way of investigating and adjudicating crimes under international law. Both authors have been following universal jurisdiction developments in Germany closely, particularly in relation to the investigation and prosecution of sexual and gender-based crimes. With regard to the proceedings against two high-rank representatives of the armed rebel group Forces Démocratiques de liberation du Rwanda (FDLR), the findings in this article are informed by trial monitoring reports organized and conducted by a group of organisations and institutions, namely Medica Mondiale, the European Center for Constitutional and Human Rights (ECCHR), and the Hamburger Institut für Sozialforschung. In light of the fact that German trial records are absent of publicly accessible records of what was said in the court room, the consortium of groups co-monitored the FLDR trial.

The interaction between immunities and jurisdiction is complex. One lacuna is whether the international legal principle of state immunity is a rule or principle in its own right or an exception to a pre-existing jurisdiction. In the context of international arbitration disputes, this distinction is significant. States have been relying on immunity to exclude the jurisdiction of national courts to support the international arbitral process. This Article argues there is now a growing set of common and consistent practice according to which state immunity operates as a rule or principle lex specialis to a more general set of rules or principles governing the enforcement jurisdiction of national courts.

Even throughout a global pandemic, climate change continues to be a fiercely discussed topic—both politically and legally—the world over. Particularly in light of the many Covid-19 related financial aid programs (including transnational ones) and the associated economic stabilization and reconstruction plans, a sustainable climate policy and legal order should be expected to play a role for an economy that has fallen into a slump. Nevertheless, a lively discussion on how best to achieve climate protection continues to take place in already established systems such as the private law system. Here, as far as climate change is concerned, tort law appears to be the focus of these discussions. The extent to which tort law and the issue of climate change can be brought together is also increasingly being discussed in Germany. This article attempts to shed light on the questions of how tort law could contribute to the mitigation of climate change and how climate change could fit into the law of torts of the German civil law legal system.

The concept of sensitive data has been a mainstay of data protection for a number of decades. The concept itself is used to denote several categories of data for which processing is deemed to pose a higher risk for data subjects than other forms of data. Such risks are often perceived in terms of an elevated probability of discrimination, or related harms, to vulnerable groups in society. As a result, data protection frameworks have traditionally foreseen a higher burden for the processing of sensitive data than other forms of data. The sui generis protection of sensitive data—stronger than the protection of non-sensitive personal data—can also seemingly be a necessity from a fundamental rights-based perspective, as indicated by human rights jurisprudence. This Article seeks to analyze the continued relevance of sensitive data in both contemporary and potential future contexts. Such an exercise is important for two main reasons. First, the legal regime responsible for the regulation of the use of personal data has evolved considerably since the concept of sensitive data was first used. This has been exemplified by the creation of the EU’s General Data Protection Regulation (GDPR) in Europe. It has introduced a number of requirements relating to sensitive data that are likely to represent added burdens for controllers who want to process personal data. Second, the very nature of personal data is changing. Increases in computing power, more complex algorithms, and the availability of ever more potentially complimentary data online mean that more and more data can be considered of a sensitive nature. This creates various risks going forward, including an inflation effect whereby the concept loses its value, as well as the possibility that data controllers may increasingly seek to circumvent compliance with the requirements placed upon the use of sensitive data. This Article analyzes how such developments are likely to influence the concept of sensitive data and, in particular, its ability to protect vulnerable groups from harm. The authors propose a possible interpretative solution: A hybrid approach where a purpose-based definition acquires a bigger role in deciding whether data is sensitive, combined with a context-based ‘backstop’ based on reasonable foreseeability.

Some scholars assume that the content and validity of international legal norms turns upon the existence of convergent attitudes and behaviors of state representatives and other ‘international legal officials’. By converging upon the criteria for what counts as a ‘formal source’ of international law and what does not, such officials provide a ‘rule of recognition’ in relation to which the normative content of the international legal system is determined. In this Article I present two theoretical problems with this view, arguing that, depending on exactly what role this rule is intended to fulfil within international legal theory, it is either metaphysically insupportable or fundamentally at odds with the disagreements that persist in relation to the formal sources of international law. Both problems risk undermining the rationality of international legal argumentation and that any reliance upon the existence of an international rule of recognition should be eschewed as a result.

This article begins the task of outlining the impacts of the COVID-19 pandemic in relation to matters of citizenship, using what is termed a “syndemic analysis.” This type of analysis places both the pandemic and citizenship in their wider contexts. The synergistic or intersectional thinking encouraged by the characterization of the pandemic as a syndemic, which links together health, socio-economic issues, and political questions, is useful for highlighting how much more vulnerable to many of the negative impacts of the pandemic in the sphere of citizenship are those who are also more vulnerable both to catching and suffering more seriously from the virus and to experiencing negatively the externalities of the measures taken to restrict social contact by shutting down economies. While the scope of the review is relatively broad and encompasses many different domains of “pandemic life,” what emerges from the analysis are important insights into how many of the impacts of the pandemic in fact operate at the intersection of citizenship and constitutional law and thus play out in the form of changes in relation to constitutional citizenship, both as ideal and as practice. The article takes an important step towards developing the use of constitutional citizenship as a framing device for understanding citizenship as putative full membership in a given society.