也谈国际强行法与国家豁免权的冲突

（2012年国际法院在德国诉意大利案的判决中认定，即使是德国违反了国际法，仍然不能剥夺其国家豁免权，国际强行法再一次让位于国家豁免。将违反国际强行法规则的行为作为国家管辖豁免权的一种例外是否可行？基于对立法和司法实践的双重考察，国际强行法和国家豁免权的博弈是一个持续的过程，国际习惯中尚未形成对违反强行法规范会导致国家豁免不得适用的普遍认可。不管是就相关国际立法的完善，还是在实践中面临冲突所采取的现实路径选择，审慎的态度和“明示放弃”的做法值得推崇。     

Community trade mark case law round-up 2006

Legal Context: This article looks at the important decisions of 2006 on theCommunity Trade Mark made by the Court of First Instance, theEuropean Court of Justice and the OHIM. These cases concernthe application of Council Regulation 40/94 on the CommunityTrade Mark, and also preliminary rulings from the European Courtof Justice on the interpretation of Council Directive 89/104(the Trade Mark Directive). Key Points: The volume of case law relating to Community trade marks, notto mention the variety of official languages in which the lawis interpreted, makes it almost impossible for even the conscientiouspractitioner to keep abreast with developments as they occur. This article provides an overview of the shifts in Communitytrade mark practice, in terms of not only the relatively accessiblesubstantive law but also the far more diffuse areas of procedurallaw and Office practice. In seeking to review and explain these shifts, the authors haveadopted a view of the case law that is functional rather thanphilosophical. In doing so, they lay bare the manner in whichthe institutions that administer and adjudicate Community trademark issues interrelate to one another. Practical Significance: Practitioners can quickly find the important decisions from2006 relating to particular articles of the Council Regulation40/94 on the Community Trade Mark. This article provides an overview of the most significant trademark cases decided in 2006 by the European Courts of Justiceand the OHIM Boards of Appeal. The article enables practitionersto access rapidly the key decisions of 2006. The cases discussed concern the application of Council Regulation40/94 on the Community trade mark (‘CTMR’), CommissionRegulation 2868/95 implementing the CTMR (‘CTMIR’),and Council Directive 89/104 (the ‘Trade Mark Directive’).     

国际法上的“强行法”规范初探

国际法上的"强行法"规范是指由全体国际社会成员所公认且在缔约时不能贬损的那些国际法律规范,对此类规范的存在,国际社会已经形成普遍共识;其最初适用范围仅仅限于国家的缔约行为,但随后逐渐及于其它国家行为;国际法学说、条约及国际司法实践初步确认了某些具体的规则具有"强行法"规范的性质,但关于"强行法"的更为明确或具体的范畴问题,国际社会远未达成普遍共识,因而在"强行法"规范的识别及具体适用上存在相当困难;经过深入的国际法理论研究和有力倡导以及长期的国际法实践的推演,国际法上的"强行法"规范更有可能通过习惯国际法的方式加以产生;在条件成就时,再由习惯国际法规则演变或制定为条约国际法规则。     

强行法在国际商事仲裁中的适用

意思自治原则允许合同当事人选择支配其合同的实体法。在国际商事仲裁领域,仲裁员能否适用当事人所没有选择的相关强行法,理论认识中还存在分歧。从国际实践来看,合同履行地国的强行法被认为是与合同的联系更为密切,从而能够在仲裁中得以适用。强行法在国际商事仲裁中的适用是个不争的事实。在适用强行法方面,仲裁员的主要作用在于界定实体法,确定合同履行地及仲裁裁决实施地,甄别、解释有关的强行性法律。而强行法的适用同样有其特定的冲突规范,强行法在国际商事仲裁领域中的适用,构成对当事人选择支配合同实体法的自由的一个限制。     

2011年香港海商法判例综述

2011年香港海商法判例,来自香港高等法院原诉法庭和上诉法庭。案件主要涉及海上货物运输责任限额、海运单的法律适用、建造中船舶的所有权、管辖地的选择、船舶碰撞责任等法律问题。这些案件既有实体法律问题,也有程序法律问题,涉及多国法律的选择和管辖地法院的选择,充分体现了海商案件的复杂性和多元性。     

Data retention and the future of large-scale surveillance: The evolution and contestation of judicial benchmarks

Recent and upcoming judgments of the Court of Justice of the European Union (CJEU) have resurfaced a much-debated topic on the legal limitations of law enforcement authorities and intelligence services under EU law in implementing surveillance operations. In its decisions, the CJEU has reinstated and at times remoulded its case-law on data retention, unearthing a variety of legal issues. This article aims to critically analyse the legal limitations of (indiscriminate) surveillance measures, the role of the private sector in the scheme, and the line between the competence of the Member States and that of the EU on national security matters. It also aims to remark on the latest developments on the reception of the decisions by the Member States and the EU legislator, as well as on the ongoing dialogue between the CJEU and the European Court of Human Rights (ECHR).     

Inter Partes Proceedings and the Reform of the Community Trade Mark Implementing Regulation

Legal and practical context. Commission Regulation 1041/2005of 29 June 2005, which amends the Community Trade Mark ImplementingRegulation, entered into force on 25 July 2005. Substantialamendments are brought to inter partes proceedings, that isoppositions and applications in revocation or in invalidity,and appeal procedures. Key points. The rules governing the substantiation of the earlierrights and time limits are now stricter. Also, the new regimeaims at circumscribing the consequences of the rather broadinterpretation which the Court of First Instance gave over thelast two years to the notion of functional continuity betweenthe opposition division and the Boards of Appeal. Practical significance. The authors analyse the new provisionscontained in the Community Trade Mark Implementing Regulationin the light of the latest case law of the Court of First Instance,in order to provide practitioners with a simplified guide.     

Dismantling or Strengthening Labour Law: The Case of the European Court of Justice

Abstract: The European Court of Justice is increasingly accused of dismantling labour law. The unusually sharp criticism is mainly motivated by four determining, though concealed reasons. First, the fact that many decisions address conflicts familiar to national law which are however largely repressed in the national context; second, the crisis of the national labour markets and the ensuing attempts to fence them off from the consequences of advancing integration; third, the inconsistent policies of a Union caught between the prevailing orientation towards a distinctly economic Community and the demands of a slowly progressing political Union; and fourth, the Union's difficulties to meet its own claims. As a result, the Court of Justice is more and more distracted from its judicial role and forced into a regulatory function. Hence, it is important to recall that a consistent integration process inevitably requires abandoning national regulations and creating a growing body of common rules intended to realise the common objectives. Further, the Union must more than ever attempt to correct its structural deficiencies and lay down fundamental rights, both in order to give direction to its regulatory interventions, and to limit them. Finally, the time has come for a clear specialisation of the European Court of Justice itself, as well as a systematic review of the conditions governing preliminary rulings, in order to avoid any further instrumen-talisation of the Court for the solution ofinternal conflicts of the Member States.     

I wonder if this is a Wunderbaum

The Court of First Instance, dismissing a Community trade markapplicant's appeal against the decision to allow an oppositionin part, affirms that the public's recognition of the opponent'searlier Community trade mark may be assessed in relation tothe degree of recognition achieved by that mark through itsclose similarity to an earlier national registered trade markbelonging to the opponent.     

Sisters in Arms: European Community Law and Sex Equality in the Armed Forces

Abstract: Recently the European Court of Justice has been shedding a new light on the limits of Community competence for defence. This article analyses the rulings in Sirdar, Kreil, and Dory with regards to two interrelated issues. First it discusses the effect of Community law on the equality of men and women in the armed forces of the Member States. Second, it deals with the impact of these decisions on the constitutional order of the European Union. The article argues that Community law has a considerable impact on defence‐related national law. Therefore the analysis ultimately contributes to a narrow aspect of the constitutional debate: the demarcation of competencies between the Member States and the Community in matters related to defence.>     

All Bark and No Bite: Notes on the Federal Constitutional Court's 'Banana Decision'

The Federal Constitutional Court's banana decision of 7 June 2000 continues the complex theme of national fundamental‐rights control over Community law. Whereas in the ‘Solange II’ decision (BVerfGE 73, 339) the Federal Constitutional Court had lowered its standard of review to the general guarantee of the constitutionally mandatorily required minimum, the Maastricht judgment (BVerfGE 89, 155) had raised doubts as to the continued validity of this case law. In the banana decision, which was based on the submission of the EC banana market regulation by the Frankfurt‐am‐Main administrative court for constitutional review, the Federal Constitutional Court has now confirmed the ‘Solange II’decision and restrictively specified the admissibility conditions for constitutional review of Community law as follows. Constitutional complaints and judicial applications for review of European legislation alleging fundamental‐rights infringements are inadmissible unless they show that the development of European law including Court of Justice case law has since the ‘Solange II’ decision generally fallen below the mandatorily required fundamental‐rights standard of the Basic Law in a given field. This would require a comprehensive comparison of European and national fundamental‐rights protection. This paper criticises this formula as being logically problematic and scarcely compatible with the Basic Law. Starting from the position that national constitutional courts active even in European matters should be among the essential vertical ‘checks and balances’ in the European multi‐level system, a practical alternative to the Federal Constitutional Court's retreat is developed. This involves at the first stage a submission by the Federal Constitutional Court to the Court of Justice, something that in the banana case might have taken up questions on the method of fundamental‐rights review and the internal Community effect of WTO dispute settlement decisions. Should national constitutional identity not be upheld even by this, then at a second stage, as ultima ratio taking recourse to general international law, the call is made for the decision of constitutional conflicts by an independent mediating body.     

Why Do the European Court of Justice Judges Need Legal Concepts?

The article considers the reasons why the European Court of Justice (ECJ) judges need legal concepts when they pronounce their judgments. It points out that the ECJ as a law‐interpreting and an ipso facto law‐making court needs legal concepts to communicate results of its interpretative and law‐making enterprise. The article also shows how in the context of Article 234 EC preliminary ruling procedure legal concepts become useful tools of portraying ECJ judgments as mere products of interpretation and not as the results of subsuming the facts of the case into a legal provision. It is by means of application of legal concepts, that the ECJ judges are able to justify that they are not overstepping the mandate they have been entrusted with. In the same time the use of legal concepts enables them to engage in dialogue with national judges, who seek guidance as to the content of EC law rules, and to maintain a strong doctrine of precedent. Most importantly, however, the use of concepts promotes coherence which, the article maintains, is the primary source of Community law's authority, and thus constitutes the foundational technique of persuading the relevant audience that Community law is indeed a legal system.     

试析人道主义干涉的条件与方式

尽管存在＂最低限度的一致＂,然而关于人道主义干涉的实在国际法存在明显缺陷,需要在自然国际法的语境中来考虑这一问题,并借助自然国际法来解释、指导与转化有关的实在国际法制度。人道主义干涉的条件是非常严格的,只有达到违反强行法的程度且在不与具有更高效力的其他强行法规则相冲突的情况下才能够进行。如果单方面的人道主义干涉符合有关的条件（强行法）并且是基于情势的严重性、危急性和紧迫性而实施的话,则可以采取武力方式。     

2010年香港海商法判例综述

2010年香港海商法判例,包括海事和商事案件,来自香港高等法院原诉法庭和上诉法庭。案件主要涉及再保险人诉讼法律地位、官方法律程序及豁免、香港和内地法院管辖争议及法院对仲裁裁决的认可。作为香港普通法,2010年的判例涉及范围广泛,案件比较复杂,涉及实务中的常见问题,案件的判决结果值得实务界参考和借鉴。     

Coming to Terms with the Supranational: Translating for the European Court of Human Rights

Translators at the European Court of Human Rights, as at other international courts, have to deal with two different types of legal terminology in judgments and decisions: on the one hand, terms that would be used by a national practitioner in the relevant language, and on the other, the supranational language that has evolved in general international law or that is specific to the Court itself, being enshrined in its basic texts or case-law. The choice of translation will often be imposed by the source text, which may be a constraint; extensive knowledge of the Court’s autonomous terms and other “linguistic precedent” is vital if they are to be used accurately and consistently. The task of devising and using supranational terms to encompass domestic realities in as many as 47 States is not only that of the drafter; the linguist also has a crucial role to play in conveying the Court’s message in a culture-neutral manner.     

OHIM procedure: provision of internet links in decisions is insufficient

The Court of First Instance of the European Communities hasheld that OHIM's practice of providing reasons in decisionsby way of internet links, without also providing hard copiesof the web pages, is a breach of the duty to give reasons underArticle 73 of Council Regulation 40/94.     

Rethinking Jus Cogens After Germany v. Italy: Back to Article 53?

Netherlands International Law Review - Article 53 of the Vienna Convention on the law of Treaties provides that a treaty is void if it conflicts with jus cogens. It is theoretically possible that...     

Looking for Coherence within the European Community*

Abstract: This paper discusses the relationship between the idea of coherence and the legal order set up by the European Community. It focuses on a specific dimension of this relationship and shows how the appeals to coherence made by the European Court of Justice have shaped a particular branch of the European legal order, namely, the judicial review of Community acts. The analysis of the Court of Justice's case law in this field shows that in its extensive use of coherence the Court of Justice explored and brought into play different types of coherence and, while it failed to distinguish between them, it made use of sorts of coherence that thus far legal theorists have disregarded. The article concludes that a closer collaboration between legal theory and legal practice would be profitable for both legal theorists and Community law specialists.     

The bowl with the bitter taste

This article examines the particular approach taken by the Courtof First Instance (CFI) and the European Court of Justice (ECJ)in comparing complex or composite trade marks, contrasting itwith the ‘net effect’ doctrine applied by the UK'sAppointed Persons.     

行政垄断的本质及其救济——由“中国反垄断法第一案”所引发的思考

我国《反垄断法》实施的第一起案件是以国家质检总局为被告的行政垄断案。尽管该案被一审法院拒绝受理，但该案对推进政府依法行政的作用不可忽视。本案中，国家质检总局以监管产品质量为名所进行的一系列干预市场的行为，仅有组织法上的依据而无行为法上的授权，违反了依法行政原则，构成行政垄断行为。而行政垄断的本质是行政违法行为，属于行政法规制的范围，因此，行政相对人或利益相关者可依据行政法的规定进行救济。