Prohibition of Abuse of Law

A New General Principle of EU Law?

Author: Rita de la Feria,Stefan Vogenauer

Publisher: Bloomsbury Publishing

ISBN: 1847317855

Category: Law

Page: 662

View: 8086

The Court of Justice has been alluding to 'abuse and abusive practices' for more than thirty years, but for a long time the significance of these references has been unclear. Few lawyers examined the case law, and those who did doubted whether it had led to the development of a legal principle. Within the last few years there has been a radical change of attitude, largely due to the development by the Court of an abuse test and its application within the field of taxation. In this book, academics and practitioners from all over Europe discuss the development of the Court's approach to abuse of law across the whole spectrum of European Union law, analysing the case-law from the 1970s to the present day and exploring the consequences of the introduction of the newly designated 'principle of prohibition of abuse of law' for the development of the laws of the EU and those of the Member States.
Release

Prohibition of Abuse of Law

A New General Principle of EU Law?

Author: Rita de la Feria,Stefan Vogenauer

Publisher: Bloomsbury Publishing

ISBN: 1847316565

Category: Law

Page: 662

View: 1406

The Court of Justice has been alluding to 'abuse and abusive practices' for more than thirty years, but for a long time the significance of these references has been unclear. Few lawyers examined the case law, and those who did doubted whether it had led to the development of a legal principle. Within the last few years there has been a radical change of attitude, largely due to the development by the Court of an abuse test and its application within the field of taxation. In this book, academics and practitioners from all over Europe discuss the development of the Court's approach to abuse of law across the whole spectrum of European Union law, analysing the case-law from the 1970s to the present day and exploring the consequences of the introduction of the newly designated 'principle of prohibition of abuse of law' for the development of the laws of the EU and those of the Member States.
Release

General Principles of Law and International Due Process

Principles and Norms Applicable in Transnational Disputes

Author: Charles T. Kotuby, Jr.,Luke A. Sobota,Center for International Legal Education (CILE) University of Pittsburgh School of Law

Publisher: Oxford University Press

ISBN: 0190642726

Category: Law

Page: 288

View: 5723

Article 38 of the Statute of the International Court of Justice defines "international law" to include not only "custom" and "convention" between States but also "the general principles of law recognized by civilized nations" within their municipal legal systems. In 1953, Bin Cheng wrote his seminal book on general principles, identifying core legal principles common to various domestic legal systems across the globe. This monograph summarizes and analyzes the general principles of law and norms of international due process, with a particular focus on developments since Cheng's writing. The aim is to collect and distill these principles and norms in a single volume as a practical resource for international law jurists, advocates, and scholars. The information contained in this book holds considerable importance given the growth of inter-state intercourse resulting in the increased use of general principles over the past 60 years. General principles can serve as rules of decision, whether in interpreting a treaty or contract, determining causation, or ascertaining unjust enrichment. They also include a core set of procedural requirements that should be followed in any adjudicative system, such as the right to impartiality and the prohibition on fraud. Although the general principles are, by definition, basic and even rudimentary, they hold vital importance for the rule of law in international relations. They are meant not to define a rule of law, but rather the rule of law.
Release

General Principles of Law

European and Comparative Perspectives

Author: Stefan Vogenauer,Stephen Weatherill

Publisher: Bloomsbury Publishing

ISBN: 1509910697

Category: Law

Page: 432

View: 4161

Examining general principles of law provides one of the most instructive examples of the intersection between EU law and comparative law. This collection draws on the expertise of high-profile and distinguished scholars to provide a critical examination of this interaction. It shows how general principles of EU law need to be responsive to national laws. In addition, it is clear that the laws of the Member States have no choice but to be responsive to the general principles which are developed through EU law. Viewed through the perspective of proportionality, legal certainty, and fundamental rights, the dynamic relationship between the ingenuity of the Court of Justice, the legislative process and the process of Treaty revision is comprehensively illustrated.
Release

Abuse of EU Law and Regulation of the Internal Market

Author: Alexandre Saydé

Publisher: Bloomsbury Publishing

ISBN: 178225403X

Category: Law

Page: 496

View: 2727

How can the concept of abuse of European Union law ? which can be defined as undesirable choice of law artificially made by a private citizen ? generate so much disagreement among equally intelligent individuals? Seeking to transcend the classical debate between its supporters and adversaries, the present study submits that the concept of abuse of EU law is located on three major fault-lines of EU law, which accounts for the well-established controversies in the field. The first fault-line, which is common to all legal orders, opposes legal congruence (the tendency to yield equitable legal outcomes) to legal certainty (the tendency to yield predictable legal outcomes). Partisans of legal congruence tend to advocate the prohibition of abuses of law, whereas partisans of legal certainty tend to oppose it. The second fault-line is specific to EU law and divides two conceptions of the regulation of the internal market. If economic integration is conceived as the promotion of cross-border competition among private businesses (the paradigm of 'regulatory neutrality'), choices of law must be proscribed as abusive, for they distort business competition. But if economic integration is intended to promote competition among Member States (the paradigm of 'regulatory competition'), choices of law by EU citizens represent a desirable process of arbitrage among national laws. The third and final fault-line corresponds to the tension between two orientations of the economic constitution of the European Union, namely the fear of private power and the fear of public power. Those who fear private power most tend to endorse the prohibition of abuses of law, whereas those who fear public power most tend to reject it. Seen in this way, the concept of abuse of EU law offers a forum in which fundamental questions about the nature and function of EU law can be confronted and examined in a new light. In May 2013, the thesis that this book was based on won the First Edition of the European Law Faculties Association Award for Outstanding Doctoral Thesis.
Release

Freedom of Establishment and Private International Law for Corporations

Author: Paschalis Paschalidis

Publisher: OUP Oxford

ISBN: 0191638137

Category: Law

Page: 328

View: 2729

Freedom of establishment is one of the four fundamental freedoms of the European Union. The principle is that natural persons who are European Union Citizens, and legal entities formed in accordance with the law of a Member State and having its registered office, central administration or principal place of business within the EU, may take up economic activity in any Member State in a stable and continuous form regardless of nationality or mode of incorporation. This book examines the way in which EU law has influenced how national courts in Europe assert jurisdiction in cross-border corporate disputes and insolvencies, and the mechanism which allows them to decide which national law should apply to the substance of the dispute. The book also considers the potential for EU Member States to compete for devising national corporate and insolvency legislation that will attract incorporations or insolvencies. Central to the book is the concept of national choice of law. In considering the impact of freedom of establishment on private international law for corporations, the book uniquely analyses both corporate and insolvency law together, presenting the topic in the broadest possible sense. Importantly, the doctrine of abuse in corporate and insolvency law is covered, raising the question of 'forum shopping' and regulatory competition which underpins the intersection between freedom of establishment and private international law. Through examination of the most recent and leading judgments of the European Court of Justice in Centros and Cadbury Schweppes, the book derives certain conclusions as to the operation of the doctrine of abuse and the limits thereof in the context of freedom of establishment. Being the first in the field to examine the leading ECJ cases of Inspire Art, Sevic and Cartesio regarding the real seat doctrine, the book makes the judgment that there is no incompatibility as such between the doctrine and the freedom of establishment. Ultimately, the book analyses to what extent diversity in the corporate and insolvency laws of the Member States should be preserved, so as to encourage competition between jurisdictions in Europe.
Release

The Future of Contract Law in Latin America

The Principles of Latin American Contract Law

Author: Rodrigo Momberg,Stefan Vogenauer

Publisher: Bloomsbury Publishing

ISBN: 1509914293

Category: Law

Page: 352

View: 2858

This book presents, analyses and evaluates the Principles of Latin American Contract Law (PLACL), a recent set of provisions aiming at the harmonisation of contract law at a regional level. As such, the PLACL are the most recent exponent of the many proposals for transnational sets of 'principles of contract law' that were drafted or published over the past 20 years, either at the global or the regional level. These include the UNIDROIT Principles of International Commercial Contracts, the Principles of European Contract Law, the (European) Draft Common Frame of Reference and the Principles of Asian Contract Law. The PLACL are the product of a working group comprising legal academics from Argentina, Brazil, Colombia, Chile, Paraguay, Uruguay and Venezuela. The 111 articles of the instrument deal with problems of general contract law, such as formation, interpretation and performance of contracts, as well as remedies for breach. The book aims to introduce the PLACL to an international audience by putting them in their historical and comparative context, including other transnational harmonisation measures and initiatives. The contributions are authored by drafters of the PLACL and contract law experts from Europe and Latin America.
Release

Gifts

A Study in Comparative Law

Author: Richard Hyland

Publisher: Oxford University Press

ISBN: 0199711097

Category: Law

Page: 730

View: 4401

Gifts: A Study in Comparative Law is the first broad-based study of the law governing the giving and revocation of gifts ever attempted. Gift-giving is everywhere governed by social and customary norms before it encounters the law and the giving of gifts takes place largely outside of the marketplace. As a result of these two characteristics, the law of gifts provides an optimal lens through which to examine how different legal systems engage with social practice. The law of gifts is well-developed both in the civil and the common laws. Richard Hyland's study provides an excellent view of the ways in which different civil and common law jurisdictions confront common issues. The legal systems discussed include principally, in the common law, those of Great Britain, the United States, and India, and, in the civil law, the private law systems of Belgium and France, Germany, Italy, and Spain. Professor Hyland also serves a critique of the dominant method in the field, which is a form of functionalism based on what is called the praesumptio similitudinis, namely the axiom that, once legal doctrine is stripped away, developed legal systems tend to reach similar practical results. His study demonstrates, to the contrary, that legal systems actually differ, not only in their approach and conceptual structure, but just as much in the results.
Release

English and European Perspectives on Contract and Commercial Law

Essays in Honour of Hugh Beale

Author: Louise Gullifer,Stefan Vogenauer

Publisher: Bloomsbury Publishing

ISBN: 1782255184

Category: Law

Page: 424

View: 5009

The purpose of this book is to honour the influential and wide-ranging work of Professor Hugh Beale. It contains essays by twenty-five very distinguished authors, each of whom has worked with Professor Beale as a co-author, as a teaching colleague, during his time as Law Commissioner of England and Wales, or as part of the study groups working in Europe on contract and commercial law. The essays reflect different aspects of Professor Beale's interests. Some concentrate on English contract law, either from a historical or a current perspective, while others are focused on aspects of European contract law. There are four essays looking at current issues relating to security and financing, and, as befits a former Law Commissioner, three essays on law reform. The essays in the final section discuss trends in transnational and European commercial law. This book brings together the reflections of eminent writers from all over Europe on important issues facing contract and commercial law and will be of interest to all scholars and practitioners working in these areas.
Release

Competition Law of the EU and UK

Author: Sandra Marco Colino

Publisher: Oxford University Press

ISBN: 0199587329

Category: Law

Page: 476

View: 8235

This student-friendly and engaging textbook is an excellent introduction to competition law. With a comparative approach, it gives clarity to the differences and similarities between EU and UK systems. Providing up-to-date coverage of cases and legislative changes, it explains the fundamental economic concepts of this area of the law.
Release

The Mechanics and Regulation of Market Abuse

A Legal and Economic Analysis

Author: Emilios Avgouleas

Publisher: Oxford University Press on Demand

ISBN: 9780199244522

Category: Business & Economics

Page: 517

View: 4233

Economic theory indicates that financial markets play a prominent role to the efficient allocation of resources in the modern world. Financial markets can fulfil this role if they enjoy the confidence of investors and are free of abuse. The financial frauds associated with the collapse of Enron and the major crises in world leading corporations such as WorldCom, Adelphia, Tyco, and the 'Wall Street financial scandals' have shown that fraud, manipulation, and insider dealing retain a catastrophic presence in modern financial markets. Proper deterrence of market abuse is necessary not only for the effective operation of modern financial markets, but also for regaining investor confidence. This book analyses the mechanics and regulation of two of the most harmful market practices in the modern financial world: insider dealing and market manipulation, which together comprise the offence of market abuse. Avgouleas examines the UK and EC regimes from an interdisciplinary perspective, also making extensive and critical use of US case law. He emphasizes the economic analysis of anti-fraud manipulation regulations and their effects upon market welfare and explores the possible deterrent benefits of civil law remedies.
Release

New Approaches to International Law

The European and the American Experiences

Author: José María Beneyto,David Kennedy

Publisher: Springer Science & Business Media

ISBN: 906704878X

Category: Law

Page: 278

View: 3929

This volume offers a unique reflection on the historic and contemporary influence of the New Approaches to International Law (NAIL) movement within the context of Europe and America. In particular, the contributions focus on the intellectual product of NAIL's founder, David Kennedy, in relation to three legal streams: human rights, legal history, and the law of war. On the one hand, the volume is valuable reading for a broad audience interested in the current challenges facing global governance, and how critical studies might contribute to innovative intellectual and practice-oriented developments in international law. On the other hand, stemming from a 2010 seminar in Madrid that brought together scholars to discuss David Kennedy's scholarship over the last three decades, the contributions here are a testament to the community and ideas of the NAIL tradition. The volume includes scholars from a wide field of legal interests and backgrounds.
Release

The Nation

Author: N.A

Publisher: N.A

ISBN: N.A

Category: Current events

Page: N.A

View: 9184

Release

Themes and Theories

Selected Essays, Speeches, and Writings in International Law

Author: Rosalyn Higgins

Publisher: Oxford University Press, USA

ISBN: N.A

Category: International law

Page: 1421

View: 9275

As President of the International Court of Justice, Dame Rosalyn Higgins is the world's most senior judge. This two volume set collects together all of her most important writings as a scholar, a member of the UN Human Rights Committee, and as judge and President of the International Court of Justice. During these years Dame Rosalyn has written on a wide range of topics including legal theory, United Nations Law, humanitarian law, the use of force, state and diplomatic immunities, human rights, and natural resources law. As President and Judge of the International Court of Justice, Dame Rosalyn has played her part in the formulation of the Judgments and Opinions of the principal judicial organ of the UN. She has sought to ensure the ICJ - the senior international court - operates in a modern and efficient manner, and in cordial relationship with the many new courts and tribunals now existing. These aspirations are reflected in her speeches during the years 2006 to 2008, most of which have not hitherto been published. This volume boasts a comprehensive collection of all her Separate Opinions, amongst other writings, divided into ten Parts by subject matter. This includes specially written introductory passages by Dame Rosalyn to present the catalogue of her writings and the correlative developments in international law by theme.
Release

European Economic Law

Author: Hans-W. Micklitz,Stephen Weatherill

Publisher: Dartmouth Publishing Company

ISBN: 9781855215573

Category: Business & Economics

Page: 529

View: 7277

This book examines legal evolution in selected areas affected by the integrative process and provides the reader with relevant sources in European Economic Law. This book investigates the effect of European integration on law and the effect of law on European integration.
Release

The Consistent Application of EU Competition Law

Substantive and Procedural Challenges

Author: Adriana Almășan,Peter Whelan

Publisher: Springer

ISBN: 3319473824

Category: Law

Page: 285

View: 9526

In recent years, there has been a decentralisation of the enforcement of the EU competition law provisions, Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). Consequently, the national application of these provisions has become increasingly more common across the European Union. This national application poses various challenges for those concerned about the consistent application of EU competition law. This edited collection provides an in-depth analysis of the most important limitations of, and the challenges concerning, the applicability of Articles 101 and 102 TFEU at national level. Divided into five parts, the book starts out by examining how the consistent enforcement of Articles 101 and 102 TFEU operates as a general EU competition policy. It then discusses several recent landmark cases of the European Court of Justice on Articles 101 and 102 TFEU, before proceeding to analyse certain additional, unique jurisdictional challenges to the uniform application of the EU competition law provisions. Subsequently, it focuses on one of the most important instruments that can help to achieve the uniform application of EU competition law in cases handled by the national courts: preliminary rulings. Finally, it provides selective examples of how Articles 101 and 102 TFEU are effectively applied at national level, thereby providing additional input into how problematic the issue of consistent application of EU competition law is in practice.
Release