The Open Method of Coordination: A New Supranational Form of Governance?

The open method of coordination (OMC) has emerged as a new policy instrument in the European context. While it was initially confined to the employment field, it has recently been applied to several other areas. The aim of this article is to provide a reconstruction of the OMC. The focus is in particular on the structure and process of the OMC, but also on the new approach to law that it proposes. The OMC differs from traditional EC methods but also from traditional soft-law mechanisms. In order to highlight those original features, the paper analyses the key steps in the evolution of a strategy, the European employment strategy, which slowly became a new mode of governance.     

The Concept of Law Revised—Directives and Norms in the Perspectives of a New Legal Realism

Legal theory usually distinguishes only two kinds of legal realism: the American and the Scandinavian. Another school of this theoretical perspective is German legal realism, which refers to scholars like Ihering, Weber, and Schelsky. According to German legal realism, the author outlines what legal theory can do to persuade modern jurisprudence to face the social reality of law, conceived as institutionalized normative communication. The latter always occurs with reference to already valid and effectively operative legal norms which are used in an established, normatively binding legal practice in a given regional society.     

Hard and Soft Law in the Construction of Social Europe: the Role of the Open Method of Co-ordination

Abstract:  The debate over the Open Method of Co-ordination has reopened discussion of the role of 'soft law' in the process of European integration. This paper outlines the debate over the relative value of hard and soft law in EU social policy, explores the operation of non-binding objectives and guidelines in the European Employment Strategy, suggests a number of reasons why 'soft law' might be effective in this area, and explores the possibility for productive combination of hard and soft law measures.     

Soft Law in the European Union—The Changing Nature of EU Law

This article is based on the assumption that there is a continuum running from non‐legal positions to legally binding and judicially controlled commitments with, in between these two opposite types of norms, commitments that can be described as soft law. It aims at defining soft law in international relations in order to provide a mapping of EU law on the basis of the soft law/hard law divide. It helps categorise EU competences and public policies, and sees how they fit with the distinction between two kinds of processes: legalisation (transformation of non‐legal norms into soft or hard law) and delegalisation (transformation of hard law norms into soft law and evolution from hard to soft law).     

Immediate Effect of Community Law in the New Member States: Is there a Place for a Consistent Doctrine?

Abstract: Extension of the acquis to the new Member States raises a number of questions relating to the temporal reach of Community rules. This paper examines a general doctrine underlying the solutions. It presents a classic intertemporal doctrine, which has influenced early jurisprudence of the European Court of Justice. Then, it comments upon the cases brought before the Court in the context of the 1995 enlargement, the entry into force of the EEA Agreement and also the Europe Agreements. These cases evidence substantial differences in the attitudes taken by the national courts, the Advocates General and the Court. One reason for divergence is that the line of reasoning adopted by the Court carries several interpretative difficulties characteristic of the classic doctrine. Secondly, controversies arise in the instances where the Court takes a proactive attitude, which is difficult to reconcile with the traditional scheme. It is argued that greater attention to the structure underlying the reasoning would help to strengthen justification of the Court's solutions and enhance their predictability. This is the more important, as the forthcoming accessions are likely to bring new disputes relating to the effects of Community law in time.     

软法的道德维度——兼论道德软法化

软法乃公共治理在全球范围勃兴之产物。软法亦＂法＂,软法乃非典型意义之＂法＂;软法与硬法相对而生,而＂法＂之共性则彰显软法与道德质的区别。道德不是软法,但理论与实证均表征道德可以软法化。道德软法化是＂以德入法＂于公共治理领域的又一次渗透,是道德思维在软法秩序中的延伸;且此种延伸在＂依法治国＂、＂法治立国＂的当下必须遵循一定的界限与尺度,以发挥其的良好独特调整功效。     

Contentious Politics in the Courthouse: Law as a Tool for Resisting Authoritarian States in the Middle East

Under what conditions will individuals mobilize law to resist states that operate above the law? In authoritarian countries, particularly in the Middle East, law is a weapon the state wields for social control, centralizing power, and legitimation. Authoritarian legal codes are overwhelmingly more deferential to state authority than protective of citizens' rights. Nevertheless, people throughout the Arab world deploy law to contest a broad array of state abuses: land expropriations, unlawful arrests, denials of jobs and welfare, and so on. Using detailed interviews in Jordan and Palestine, I outline a theory of law as a tool for resisting authoritarian state actors. Integrating qualitative insights with survey experiments fielded in Egypt and Jordan, I test this theory and show that aggrieved individuals mobilize law when they expect courts are powerful and attainable allies in contentious politics. My results further demonstrate that judicial independence does not uniformly increase authoritarian publics' willingness to access courts.     

软硬法混合治理的规范化进路

公共领域的软硬法混合治理既是一个普遍存在的事实,也被认为是应当采取的立场和方法。然而,以新冠疫情防控过程中的软硬法规则的运用为例,可以发现实际运行的混合治理模式存在法治紧张问题:“名义软法”混合“实质硬法”现象大量存在,且制定主体泛滥,制定程序非公开,规范效力不明确。解决问题的可行路径是对行政法规、规章以外的行政规则进行统一规范。对软法性质和硬法性质的行政规则,在文件名称、发布主体、基本程序、规范效力等方面应提出不同要求,并使其接受相同的行政法基本原则的约束。     

The 'Checks and Balances' Doctrine in Member States as a Rule of EC Law: The Cases of France and Germany

Abstract: Though the impact of EC law on the legal status of national powers has been fairly well examined, little attention has been paid to the overall evaluation of the relations developed between national authorities. The paper argues that the mutation of the Judiciary and the Executive role vis‐à‐vis the Legislature appears to be an application of an emerging doctrine in EC public law that conspicuously resembles the ‘Checks and Balances’ theory of American constitutionalism. The action of one public authority is—or must be—countered by the reaction of another for the benefit of EC law. Apart from identifying the features of this ‘principle’ in comparison to its equivalent American doctrine, the paper deals with the question of a possible coexistence of this new model of governance with the traditional one. The comparative perspective is necessary here. Whereas in Germany the constitutional model appears to cope with European demands, in France it seems largely opposed to such a dynamic conception of the separation of powers.     

论食品安全国际法律规制中的软法

食品安全国际法律规制中的软法主要表现为跨政府治理网络中的国际软法和有关国际组织制定的国际软法。前者是指不同国家的食品安全政府职能部门之间以双边备忘录等形式达成的非条约性协议。后者是指专业性国际组织、区域性国际组织和国际非政府组织制定的与食品安全相关的指导建议、行动计划、原则宣言和标准等国际文件。这些没有法律约束力但具有实际效力的国际软法在食品安全国际法律规制中发挥着独特的补充和辅助功能,理应引起我们的关注。     

Is the Open Method of Coordination Appropriate for Organising Activities at European Level in Sensitive Policy Areas?

This article addresses the question of the relevance of the most recent soft policy instrument of the EU, the open method of coordination (OMC), for organising actions at European level in politically sensitive areas. In addition to describing its origins and operational principles, we will compare its application to the areas of employment and social inclusion. Two hypotheses make up the structure of the text. The first is that the discourses produced in the framework of OMC in the areas of employment and social inclusion are broad enough to cater to the different welfare models, but that the changes to be made by the Member States to be in line with the European discourses differ considerably, depending on their welfare state family and their initial situation. The second is that the form of OMC is variable, depending on policy area. Our conclusions confirm both of these hypotheses.     

The Hamdan Case and Conspiracy as a War Crime: A New Beginning for International Law in the US

In the Hamdan decision, Judge Stevens, writing for the majority,addressed the boundaries of the law of war and specificallywhether the conspiracy charge lodged against Hamdan constituteda violation of this body of customary international law. TheSupreme Court persuasively held that conspiracy does not constitutea war crime.     

Why the Open Method of Coordination Is Bad For You: A Letter to the EU

Abstract:  During the last years, and especially since the launch of the Lisbon agenda in 2000, the literature on the open method of coordination (OMC) has grown exponentially. Most writers explore the tentative outcomes of the method, since they lack a solid experimental background, against which to assess its actual effectiveness. Lately, however, some empirical studies have come to light. Among them, some fully discredit the OMC as a means of pursuing common policies at the EU level; while others recognise indirect effects, essentially at the national level of policy setting. On the basis of this assumption, i.e. that the OMC has only restricted direct effects in the short term and indirect effects in the medium to long term, the present article first puts forward a series of arguments against the current 'spread' of the OMC, and then offers some proposals on how to neutralise some of the identified shortfalls of the OMC. Despite the title of the article, the final conclusion is not for the demise of the OMC, but rather for its 'communautarisation'. It is put forward that both the application and the effects of the OMC should be more clearly defined and better integrated with the other pre-existing forms of cooperation, in accordance with basic requirements stemming from the Community legal order.     

民间借贷融资中民刑交叉适用的冲突与协调

金融犯罪案件多涉及民刑交叉问题,采用“先刑后民”原则往往容易忽视当事人的意思自由及处分权,对民事争议中的私权完全不重视。导致附带民事诉讼的审理“过场化”。基于私人财产权优先的学理基础,金融领域民刑交叉案件中的“民商先行”既为了加强对金融民商实体法的运用．更为了缓和金融刑法重刑主义。赋予民间借贷融资中贷款人诉讼选择权。让贷款人在刑事诉讼之前选择是否适用民事诉讼,即实行“先民后刑”。对于民间借贷融资中的民刑交叉适用,应当秉持刑法具有的内敛品格,实现从金融违法行为的“刑法依赖”到“非刑法依赖”的转变。     

The Missing Piece of the Lisbon Jigsaw: Is the Open Method of Coordination Effective in Relation to the European Research Area?

Abstract:  In the light of the subsidiarity principle, this article discusses the Community competence in relation to the 'European Research Area'. As such it responds directly to the question of whether the European commitment to consider research as one of the new emerging priorities of the EU, is reflected in the Member States domestic research policies. To this aim, the article outlines the Community policy to enhance European competitiveness and the goals set in the Lisbon Declaration (March 2000) and reaffirmed in the Barcelona Declaration (March 2002) shaping the European Research Area. It then goes on to investigate whether the Lisbon and Barcelona agenda targets on competitiveness are likely to be met at European level. The functioning and effectiveness of the Open Method of Co-ordination are examined as a tool to maximise synergies between national and community research and technological development activities. The article, using the Italian research policy as a case study, claims there are some inconsistencies between the Italian and the EU policies on research and technological development and transfer of best practice.     

Competition Law in the International Domain: Networks as a New Form of Governance

Central to the internationalization of competition law has been the emergence of transnational networks of competition officials and experts. These networks have operated in three main areas: co-ordination on enforcement; technical assistance; and moves to develop overarching competition principles at the level of the WTO. The debate over the nature of internationalization of competition norms has fallen into three phases: early failures mainly due to the lack of any network; politicization of competition policy within a UN context followed by the emergence of a network primarily focused on the OECD. The current phase concerns coordination and the attempt to develop a competition law regime at the WTO level. This process is spearheaded by the European Union, with the United States of America favouring bilateral agreements on enforcement and technical assistance only. The way the debate has changed over the past ten years and how the two main protagonists have modified their positions, is indicative of the influence and importance of networks which, while they may give rise to formal agreements, can operate through soft power and persuasion. What emerges from the analysis is the centrality of these networks to this important aspect of contemporary international governance. They supplement rather than replace more traditional forms of internationalism and, while they may fundamentally regard themselves as technocratic, deriving legitimacy from outputs, current pressures on international policy making require them to attend to the process aspects associated with legitimacy of democratic regimes.     

新民事诉讼法中的新制度

我国《民事诉讼法（试行）》制定於1982年，1991年颁布正式的《民事诉讼法》，2007年第一次进行修正，主要涉及审判监督制度和执行制度。本次民事诉讼法有59处修改，涉及70多个条文的调整，略占整部法律四分之一，虽然还不是一次大修，但其中许多新制度的建立和对原有制度的修正反映了我国民事司法制度的新发展，此次民事诉讼法的...