'New Governance' in European Corporate Law Regulation as Transnational Legal Pluralism

The present transformation of European corporate governance regulation mirrors the challenges that have been facing the EU's continuously evolving polity, marked by tensions between centralised integration programmes, on the one hand, and Member State's embedded capitalisms, path-dependencies and rent-seeking, on the other. As longstanding concerns with remaining obstacles to more mobility for workers, services, business entities and capital in recent years are aligned with post-Lisbon commitments to creating the world's leading competitive market, European corporate governance regulation (ECGR) has become exposed to and implicated in a set of highly dynamic regulatory experiments. In this context, 'New Governance' offers itself as both a tentative label and immodest proposal for a more responsive and innovative approach to European law making. The following article assesses the recently emerging regulatory forms in ECGR as illustrations of far-reaching transformations in market governance. The arguable parallels between the EU's regulatory transformation in response to growing legitimacy concerns and the recurring question about whose interests a business corporation is intended to serve, provide the framework for an exploration of current regulatory trajectories in European corporate law that can most adequately be understood as a telling example of transnational legal pluralism.     

Legal Pluralism and the European Union

Abstract:  This article advances a pluralist model of a legal system. It claims that a legal system is pluralist when it contains inconsistent rules of recognition that cannot be legally resolved from within the system. The first part of the article sets out the model, demonstrating why it requires a departure from the classical accounts of law advanced by writers such as Hart and Kelsen. The second half applies this model to actual legal orders: first, to Rhodesia during the crisis of 1965, and then to the legal orders of the European Union. It is argued that there are interesting and important points of similarity between the two.     

The Pluralism of Global Administrative Law

As public power is increasingly exercised in structures of globalgovernance, principles of domestic law and politics are extendedto the global level, with serious repercussions for the structureof international law. Yet, as this article seeks to show forthe emerging global administrative law, this extension is oftenproblematic. Using administrative law mechanisms to enhancethe accountability of global regulation faces the problem offundamental contestation over the question of to whom globalgovernance should be accountable. National, international andcosmopolitan constituencies are competing for primacy, and thisresults in an often disorderly interplay of accountability mechanismsat different levels and in different regimes. This pluraliststructure, based on pragmatic accommodation rather than cleardecisions, strongly contrasts with the ideals of coherence andunity in modern constitutionalism and domestic administrativelaw. However, given the structure of global society, it is likelyto endure and it is also normatively preferable to alternative,constitutionalist approaches. It helps avoid the friction thatmay result from a federal-type distribution of powers and thepractical problems of a consociational order, and by denyingall constituencies primacy it reflects the legitimacy deficitsof each of them. Mirroring divergent views on the right scopeof the political order, it also respects everybody’s equalright to political participation. A pluralist global administrativelaw thus presents an alternative to problematic domestic modelsfor ensuring accountability in the circumstances of global governance.     

法律多元主义及其中国语境：规范多元化

法律多元主义的产生与发展,对各国法治发展的影响不容忽视.当代中国自上而下推行法治,法律规范创制体系以国家制定法为中心,但现代社会中民间法的超强生命力、道德的法律化、法律原则的普遍适用等现象冲击了制定法的中心地位,法律规范的创制体系也由此趋于多元.这种多元主义法律观对当代中国的法治运行具有现实意义.     

争议与困惑:经济法中的法律责任研究述评

经济法学界对法律责任已有20多年的研究,在法律责任的一般理论基础上形成了多种学说。在这些研究中,经济法中的法律责任的称谓、独立性问题争议尚存;对经济法中的法律责任的特点形成了一定程度的共识;在具体责任形态方面,经济法通过直接和间接方式承继了传统法律责任,同时又以企业社会责任、缺陷产品召回、惩罚性赔偿、纠正性广告等形式展现了经济法中法律责任的特色。相关研究的争议和困惑反映了经济法学理论研究中较为普遍存在的概念术语范畴体系的矛盾冲突,这主要是经济法学非传统的新兴交叉学科特征所决定的,用"经济"一词在传统术语上贴标签式的研究进路值得反思。     

Legal Order,Legal Pluralism,Fundamental Principles. Europe and Its Law in Three Concepts

The essay analyses the way in which the concepts of legal order, legal pluralism and fundamental rights have been used to describe (and decide) what European integration is (and what it ought to be) from the perspective of the law. The essay does not provide a legal theory but limits itself to investigating how certain concepts have been employed to justify legal decisions and to construct legal theories. The juridical discourse on Europe is examined to identify some trends in contemporary legal culture: the decline of a tradition of legal thought, ‘legal dogmatics,’ the vanishing of the distinction between internal and external law (between domestic law and international law, and between positive law and morality), the growing importance of fundamental rights discourse, the centrality of balancing test, the widespread criticism of legal science's claim to neutrality and the consequent normative turn affecting legal scholarship.     

作为概念的“经济法”——聚焦于“经济法”语词的多视角研究

“经济法”是经济法学中最重要的基本概念。“经济法”的概念研究是经济法学总论研究的重要课题之一。对作为概念的“经济法” ,从学术史、语言学和逻辑学等视角进行了语词缘起、范畴定位和文字训诂等三个方面探讨 ,并为经济法本体论和经济法学科论的基本范畴研究提供了相应的思路、方法和理论基础。     

法经济学:法律的经济分析和经济的法律分析

法经济学作为法学和经济学的交叉学科,其边界应该是法律的经济分析和经济的法律分析。由于忽视和否定经济的法律分析,波斯纳创立的法律的经济分析范式在为繁荣法经济学研究作出巨大贡献的同时也带了极大的误区。就法律对经济的影响和提高人们的福利而言,经济的法律分析比法律的经济分析更加重要。重新繁荣法经济学研究,必须进行经济的法律分析。     

The Politics of a New Legal Regime: Governing International Crime through Domestic Immigration Law

Through an analysis of a unique and understudied unit within the US Department of Homeland Security (DHS), the Human Rights Violators and War Crimes Unit (HRVWCU, or “the Unit”), this article addresses the following theoretical and policy question: once someone has been admitted to the United States and granted permanent residency, or even citizenship, how does the law facilitate the reversal of that decision based on acts committed long ago and far away? We argue that the HRVWCU has created a significant new way to govern immigration through crime—specifically international crime—while simultaneously trying to ensure justice for mass atrocities through immigration law. In offering an overview of the Unit's origins and approach in blending international criminal law, domestic criminal law, and immigration law, we show how this Unit reflects an expansion of crimmigration in the United States and abroad. In order to illustrate the dilemma of internationalized crimmigration, the article focuses on the Unit's cases related to war crimes in Liberia and Bosnia, which have two very different (at least from the perspective of international criminal law) types of alleged perpetrators: those who allegedly gave orders and those who allegedly followed orders.     

现代经济法的法权结构论纲

法权结构是指包含于法之中的权力和权利两者之间的关系,由主体认知、法律规定和现实表现三个层面有机组合而成。本文认为现代经济法的法权结构的本质是"互动",体现为三个基本层次:应然态;法定态和实然态;表现为三个具体特征:经济权力的多元化和"经济元权力"的制度化表达、经济权利的自治化与规范化的制度构建、社会经济权力和权利的勃兴与经济权限制约机制的型构。     

The Institutional Requirements of the WTO in an Era of Globalisation: Imperfections in the Global Economic Polity

To the liberal economist, ‘globalisation’ denotes the virtuous circle of expanded trade, investment and economic growth around the globe. In the political world, ‘globalisation’ is the vaguely understood and yet powerful undercurrents of irrevocable economic changes which have generated social tensions and environmental damage, loss of domestic competitiveness and national sovereignty. Throughout the social sciences, the usage of the term ‘globalisation’ is largely inconsistent and inconclusive—but its imprecision is matched only by its popularity. This article suggests that globalisation should be understood as a reconstruction process of the market as well as the polity. It is essentially a form of global market integration which can be observed from different vantage points, including governance. The premise of the article is that global market integration is surprisingly fragile and requires an adequate institutional foundation in order to move forward. Globalisation and governance are mutually constitutive phenomena. The polity governing the global market integration process cannot be separated in any meaningful sense from the changes in the market itself. This article concerns the institutional requirements of globalisation. While globalisation has produced institutional changes, it has not necessarily produced the most effective or legitimate ones. Exactly what polity construction should underpin globalisation? Should globalisation be left ungoverned? Should existing institutions be improved? Does it require the establishment of supranational sites and the re‐construction of hierarchical legal order at global level?     

经济法的人文理念与我国经济法制的完善

经济法以维护社会整体利益为其理念,以人为本的科学发展观符合经济法的人文理念,是经济法人文理念指导下的新发展观。可持续发展是经济法人文理念的重要内容,必须在完善经济法制的过程中建立起有利于可持续发展的经济法运行机制,形成符合可持续发展要求的发展模式,促进人口、资源、环境与经济和社会和谐发展。     

Legal Pluralism and the Adjudication of Internet Disputes

No single entity-academic, corporate, governmental or non-profit-administers the Internet. (American Civil Liberties Union v Reno \[E.D. Pa. 1996] 929 F. Supp. 824, 832) The problems of regulation on the Internet are simply stated. First, it allows novel activities: e-mail, electronic discussion groups, simple transfer or viewing of text, images, sound and video. These activities may fall foul of laws of obscenity or defamation in some or all of the jurisdictions in which it is available. Second, the Internet is a distributed system that straddles geographical and jurisdictional boundaries; the regulation of such activities is likely to fall within two or more national 'legal' jurisdictions. It may therefore be difficult to choose an appropriate jurisdiction. Third, the inevitable need to choose a jurisdiction will mean that the values to be imposed upon the dispute will be the values of that jurisdiction, values that may be different from the values of those involved in the dispute. Much has been written on the first two problems and significant developments have been made in the formulation of principles to be applied to the problem of choosing a jurisdiction. In this paper, I will begin to focus on the third problem, the problem of inappropriate values being imposed upon Internet behaviour. The paper will develop the theme that the need for a single jurisdiction and, in consequence, the need for a single set of values to be imposed upon Internet activities is a fiction born out of centralist systems of western jurisprudence. The paper will review how courts have turned against pluralistic approaches in the past when dealing with clashes in cultural and religious values, particularly the clash in the English courts in the case of Salman Rushdie's 'The Satanic Verses'. Western courts have been dismissive of cultural and religious claims either treating them as 'repugnant' or contrary to public policy, or else questioning the validity of the motives of the applicants. It is evident from recent cases in the US, that judges will use similar techniques to impose their own value values upon Internet activity. The concept of legal pluralism is not recognised within westernised systems of law. The paper will then consider whether a more pluralistic strategy would provide a more satisfactory approach to dealing with such disputes on the Internet: an approach that would enable the resolution of the conflict between different cultural and religious values.     

The Schengen Law: A Challenge for Legal Accountability in the European Union

This article examines challenges for accountability arising from the development of the Schengen law within the framework of the European Union. Building upon the substantive body of research by other authors on general implications of the integration of the Schengen acquis , it focuses on recent developments after the entry into force of the Treaty of Amsterdam and evaluates to what extent the European institutions have so far met the challenges for accountability stemming from the intergovernmental origin of the Schengen law. The article identifies various persisting deficiencies in the areas of transparency, institutional balance and judicial review and proposes specific actions, which should be addressed vigorously by the European institutions.     

经济法的法价值范畴研究

本文全面而深刻地论证了经济法的法律价值 ,认为经济法的法权价值在于对权力的规制 ,资源价值在于追求发展公平 ,而社会价值则在于维护经济安全