For Better or Worse? The Europeanisation of the Conflict of Laws

From its very beginnings the European Union(EU) has taken an interest in that area of legal activity known as the conflict of laws or private international law. The purpose of the conflict of laws is to determine how a national court should behave when confronted with a legal dispute that involves a foreign element. A state's conflict rules will provide the answer to three basic questions: in what circumstances their courts may assume jurisdiction over cases involving a foreign element, what system of municipal law to apply (their own or that of some foreign legal system) and which foreign judgments are capable of recognition and enforcement within their national system. The very fact that the EU exists in order to bring states together to form a single internal market would seem likely to provoke conflict of laws situations. It, therefore, appears unremarkable that the EU has agreed a variety of measures with a bearing on the conflict of laws. The purpose of this article, however, is not to give a detailed account of the EU's interventions on this topic. Instead the intention is to offer some thoughts upon and to raise some questions regarding the implications of the EU's engagement with the conflict of laws. In particular this article aims to provide an overview of the direction in which the EU is taking the conflict of laws and how this has affected the focus and character of the subject in one Member State, namely the United Kingdom. This revised version was published online in August 2006 with corrections to the Cover Date.     

防治"非典"中适用刑法存在的法律冲突

在防治非典中,对传染病防治法第35条所列行为,医疗保健人员、国家机关工作人员、政府卫生行政部门工作人员的严重玩忽职守行为在适用刑法时所存在的法律冲突,并分别提出解决这些冲突的建议。     

Constructing Common Cultures: The Ontological and Normative Dimensions of Law in the European Union and Mercosur

Existing research suggests that the European Union (EU) has avoided the formal construction of a supranational culture. Theories in economic sociology predict that market building should entail the concomitant articulation of basic cultural material, above all of ontological and normative notions about the world. In this article we confirm that the EU has formally engaged in cultural construction. Through its system of secondary laws, the EU has in fact produced complex webs of ontological notions about the essence of objects, activities and agents, and of normative notions about the desirability of various situations. Analysis of the content of EU directives and regulations in the areas of working conditions, flora and fauna, and honey supports this claim. Analysis of national reactions and cultural contexts highlights the salience and distinctiveness of the emerging supranational culture. Evidence that Mercosur too has engaged in the production of ontological and normative notions suggests that, in line with the expectations of economic sociology, the EU is not unique, though the two markets can construct different notions when addressing identical subject matters. The implications of the findings for European enlargement and the comparative study of common markets are discussed.     

Top‐up Payments for Expensive Cancer Drugs: Rationing,Fairness and the NHS

This article examines the implications for patient care, and for the future of rationing within the NHS, of the recent decision to permit NHS patients to supplement their care by paying for medicines — mainly expensive new cancer drugs — which are not available within the NHS. The starting point is the recommendations of the Richards' Report and their implementation through new guidance issued by the Department of Health and the National Institute for Health and Clinical Excellence. Practical challenges arise from the insistence upon the ‘separate’ delivery of self‐funded medicines, and more flexible cost‐effectiveness thresholds for end of life medicines may have repercussions for other patients. While undoubtedly part of the trend towards explicit rationing, top‐up fees might also represent a significant step towards regarding the NHS as a core, basic service. Finally, the issue of top‐up fees is located within the broader context of current cancer research priorities and persisting health inequalities.     

Gender Equality, Citizenship, and the EU's Constitutional Future

Abstract:  While gender equality has been a matter of some concern for EU law and policy makers over the past half century, this concern has tended, at least historically, to focus upon equal treatment in employment and has not yet materialised into the delivery of a broader package of civil, political, and social rights for women. Taking the concept of EU citizenship as a framework within which to view the promotion of gender equality, this article assesses the debate on the constitutional future of the EU. This is with a view to examining the possible amelioration of women's social position through the exploitation of opportunities that the constitutionalisation of EU law presents. Looking at women's citizenship through the lens of political rights to participate in the debate on the EU's future, together with examining substantive aspects of the Constitutional Treaty for their gender equality content, the article suggests that a more comprehensive endeavour by all institutional actors to engage in gender mainstreaming is needed in order to give effect to a broader form of equality between women and men.     

Learning from Difference: The New Architecture of Experimentalist Governance in the EU

Abstract:  This article argues that current widespread characterisations of EU governance as multi-level and networked overlook the emergent architecture of the EU's public rule making. In this architecture, framework goals (such as full employment, social inclusion, 'good water status', a unified energy grid) and measures for gauging their achievement are established by joint action of the Member States and EU institutions. Lower-level units (such as national ministries or regulatory authorities and the actors with whom they collaborate) are given the freedom to advance these ends as they see fit. But in return for this autonomy, they must report regularly on their performance and participate in a peer review in which their results are compared with those pursuing other means to the same general ends. Finally, the framework goals, performance measures, and decision-making procedures themselves are periodically revised by the actors, including new participants whose views come to be seen as indispensable to full and fair deliberation. Although this architecture cannot be read off from either Treaty provisions or textbook accounts of the formal competences of EU institutions, the article traces its emergence and diffusion across a wide range of policy domains, including telecommunications, energy, drug authorisation, occupational health and safety, employment promotion, social inclusion, pensions, health care, environmental protection, food safety, maritime safety, financial services, competition policy, state aid, anti-discrimination policy and fundamental rights.     

欧盟对分时度假及相关产品的法律规制

欧盟主要通过《分时度假指令》和《不正当商业做法指令》对分时度假产业进行法律规制,《分时度假指令》赋予消费者对购买分时度假产品合同的撤销权,《不正当商业做法指令》则禁止销售商在销售分时度假产品及相关产品时的不正当商业做法。由于《分时度假指令》的适用范围过于狭窄,欧盟已提出了对其的修改建议。总结欧盟规制分时度假产业的经验,我国应对分时度假产业进行法律规制并结合行业自治。     

后“SchremsⅡ案”时期欧盟数据跨境流动法律监管的演进及我国的因应

“SchremsⅡ案”对以隐私权和数据保护为核心构建的欧盟数据跨境流动规则体系产生重大影响,它要求无论使用何种数据跨境流动工具,都必须确保第三国能够提供与欧盟同等的保护水平。在该案的影响下,《欧盟基本权利宪章》在数据保护领域的地位进一步提高,保障措施的适用愈发严苛,欧洲数据保护委员会在数据保护领域将扮演更重要的角色,数据跨境流动欧盟法规则与国际贸易法的不兼容问题日益凸显。欧盟虽然结合SchremsⅡ案的判决完善了对数据跨境的法律监管,但依然没有减少外界对其监管合理性的质疑。我国对数据跨境流动的监管存在着配套立法不健全、规则可操作性差、多元价值失衡、缺乏内外联动的“中国方案”等问题。对此,应完善我国相关立法,加强中欧国际合作,共同引领构建数据跨境流动的国际规则。     

The Norwegian Barents Sea Management Plan and the EC Marine Strategy Directive: Some Political and Legal Challenges with an Ecosystem-Based Approach to the Protection of the European Marine Environment

This article addresses some of the implications of the EU's proposed Marine Strategy Directive for ongoing work in the regional seas conventions and for national work on regional marine strategies. The starting point is the proposed directive's focus on the ecosystem approach to the protection of the marine environment. Key elements within this approach are analysed, such as integration of environmental considerations into other policy areas; introduction of ecological quality objectives; and establishment of holistic monitoring and assessment programmes. Is it possible to transform these concepts into legally binding obligations? What will the implications of the proposed directive be for the rights and obligations of EU Member States under international law? A Management Plan for the Norwegian Part of the Barents Sea ('Barents Plan') was adopted by the Norwegian Government in March 2006 and approved by the Norwegian Storting (Parliament) in June 2006. It provides an example of a concrete application of the concepts in the proposed directive. Based on an analysis of the proposed Marine Strategy Directive and the Barents Plan, some key political and legal challenges are discussed in this article.     

平台经济领域的反垄断法实施 以经济效率目标为出发点

在平台经济领域,欧盟和美国反垄断法实施力度有很大差异,中国也明显呈现出两个阶段。这种差异需要解释,而经济效率目标构成了理解的出发点。通过福利标准,经济效率目标建立了统一、确定的分析框架。但这一分析框架也受到诸多因素的约束,并面临平台经济的挑战。《反垄断法》虽然明确了经济效率目标,但没有清晰的福利标准。当前对平台企业的高强度执法,更多是追求非经济效率目标的结果。作为多目标法律,非经济效率目标使得《反垄断法》更具现实回应性。不过,要实现更好的实施效果,仍需要完善的反垄断法制度,并在个案中进行更充分地说理。     

中国的跨界破产法:现状、问题及发展

在研究中国破产法的现状（集中在有关跨界破产的立法空白及不成熟的司法实践）和引起广泛关注的广东国际信托投资公司破产案的基础上，作者根据国际上的最新发展，特别是联合国国际贸易法委员会跨界破产示范法和欧盟破产程序规则中的一些重要原则，对中国的跨界破产立法提出了若干建议：在普遍性原则与地域性原则的基础问题上，应当采取较为开放的态度，并应设计具体的制度去支持；在管辖权方面，既要维护中国债权人的利益，同时也需要适当的管辖权自限；最后，应注意加强跨界破产案件中的国际合作，对外国破产程序给予适当的承认与协助。     

Plus ça change: health sector reforms in Greece

Changes in the health care sector in Greece since the pathbreaking introduction of the National Health System (NHS) in 1983 have been sluggish. Twenty years after its inception and a series of attempts to reform it, the NHS remains centralized, fragmented in terms of coverage, and quite far removed from its principles of equity and efficiency. Being part of an idiosyncratic welfare state, the health care system is bound to reflect the particularities of Greek society and economy, namely, clientelism, a weak formal-and a thriving informal-economy, the lack of a strong administrative class, a weak labor movement, and strong organized interests. As a result, several ambitious reform plans have failed repeatedly owing to an array of interrelated economic, political, and social factors that channel potential changes toward the trodden path. This constellation creates unfavorable conditions for the introduction and implementation of major reforms.     

EU Climate Change Litigation,the Role of the European Courts,and the Importance of Legal Culture

The purpose of this article is to show it is only in light of legal culture that climate change jurisprudence in the European Union can be explained. Examining the case law concerning the EU Emissions Trading Scheme, this article demonstrates that climate change proceedings in the European Union raise questions that stand at the heart of the EU legal order; that is, they demand that the boundaries of the EU's regulatory competences are drawn. In effect, the EU courts focus on ensuring that EU climate change laws are in accord with the rule of law or, in the context of EU law, the borders of the EU's environmental regulatory powers. As such, this article shows that attention needs to be given to the interaction between climate change laws and the constitutional role of the EU judiciary. These interactions are considered here together with the contingency of EU climate change litigation on EU legal culture.     

“Legality with a Vengeance”: Reclaiming Distribution for Sociolegal Studies

The law and society community has argued for decades for an expansive understanding of what counts as “law.” But a content analysis of articles published in the Law & Society Review from its 1966 founding to the present finds that since the 1970s, the law and society community has focused its attention on laws in which the state regulates behavior, and largely ignored laws in which the state distributes resources, goods, and services. Why did socio‐legal scholars avoid studying how laws determine access to such things as health, wealth, housing, education, and food? We find that socio‐legal scholarship has always used “law on the books” as a starting point for analyses (often to identify departures in “law in action”) without ever offering a programmatic vision for how law might ameliorate economic inequality. As a result, when social welfare laws on the books began disappearing, socio‐legal scholarship drifted away from studying law's role in creating, sustaining, and reinforcing economic inequality. We argue that socio‐legal scholarship offers a wide range of analytical tools that could make important contributions to our understanding of social welfare provision.     

Not Ozzie and Harriet: Postwar Divorce and the American Liberal Welfare State

This article analyzes divorce as a technology of governance in twentieth-century America in order to examine the emergence of a rights-based liberal welfare-state regime during the postwar era. The author offers an interpretation of the post–World War II "divorce boom" that challenges prevailing notions of postwar domestic tranquillity and highlights the legal formalization of family relations and the administration of the developing welfare state. The article posits an important shift in postwar public policy regarding divorce from the policing of public morality through family preservation to the regulation of public welfare through family structures. The legal consequences of this shift are explored at the local level by focusing on the "problem" of the Chicago divorce courts and the frustrated attempts of postwar reformers in Illinois to employ the traditional methods and rhetoric of Progressive Era reform. At the national level, the author examines the formulation of new governmental objectives and individual rights in the liberal welfare-state regime through an analysis of the United States Supreme Court's'decisions regarding migratory divorce.     

“What Rights?” The Construction of Political Claims to American Health Care Entitlements

Despite a growing health care crisis, Americans remain reluctant to treat “health security” as a right or entitlement of citizenship. This article examines the effects of unmet health care needs on the beliefs that individuals hold about family, market, and state responsibility for health security. Drawing on a study of individuals caring for family members with chronic diseases, I find that when imagining solutions to unmet long‐term care needs, individuals evaluate a range of alternative social arrangements, but they select the model that is most consistent with previously existing beliefs about family, market, and state responsibility for care provision. This process of discursive assimilation, of integrating new needs for public provision with more familiar ways of thinking about social welfare, produces claims for entitlements that challenge existing social arrangements but do so within a welfare state framework that conceives of only a minimal role for the state in safeguarding social welfare.     

Law and economics of the European multilingualism

The economics of language applied to multilingualism in the European Union (EU) has only recently come to the fore. Languages economics and Law and Economics disciplines both emerged in the 1960s. However, no study has, hitherto, linked these disciplines. This paper intends to fill that void. Language barriers are the last major remaining barriers for the EU??s ??single?? market. The lack of coordination of multilingualism in the EU stems from a taboo crystallized by a dilemma between economic efficiency and linguistic diversity??i.e., the maximization of wealth versus the maximization of utility. The EU Member States (MSs) do not hasten to coordinate their language policies at the EU level inasmuch as they overestimate the benefits of the current EU multilingualism while drastically underestimating its costs. Coordination shall occur when MSs evaluate the costs and benefits of the current EU multilingualism. This will uncover the aforementioned dilemma, that will only be resolved when both Law and Economics are applied. In pursuing this objective a ??Linguistic Coase Theorem?? adapted from the work of Parisi and the Nobel Prize winner, Ronald Coase is elaborated. Having outlined the basic notions deriving from the EU Law of Languages and the Economics of Languages (Introduction), the paper scrutinizes the costs and benefits incurred by the current non-coordinated EU multilingualism (Part I). Subsequently, a ??Linguistic Coase Theorem?? is elaborated in order to reach a Pareto-optimal outcome, thereby solving the dilemma??both economic efficiency and the linguistic diversity being enhanced (Part II).     

The Emerging Strategic Partnership between India and the EU: A Critical Appraisal

Abstract:  For a long time, the relations between India and the EU have been largely informed by economics without any similar significant engagement at the political level. In recent times however, amongst others, the changing external environment, the EU's emerging profile as a global actor and India's growing importance both regionally and globally warranted the need for greater political dialogue and cooperation between the two sides. What followed therefore was the formalisation at the highest level of the EU's political dialogue with India and its institutionalisation into a meaningful summit-level partnership leading to a strategic partnership. Areas of divergence and challenges remain but the opportunities that have surfaced are significant and deserving of attention. This article critically analyses the growing strategic partnership between India and the EU in the light of both these realities.     

中华民国矿场安全与健康立法的价值

民国时期,工业发展和长期战争急需矿产品而加速了矿业开发。但矿工的福利与迅速发展的矿业不协调,导致劳资双方对立。为此,国民政府制订了一系列改善矿工福利的法律法规,其中以《矿场法》最突出。该法是一部以健康安全优先、界定矿主责任、保障矿工权利、强制培训矿工的矿场安全与健康法。其立法目的、指导思想和基本原则很值得我们今天继承。