'Cheese for Thought' for the European Court of First Instance

The name ‘grana’ is not generic and the existenceof the protected designation of origin (PDO) for the ‘GranaPadano’ cheese precludes the registration of the trademark GRANA BIRAGHI for related products.     

Reconciling transparency and privacy through the European Digital Identity

Where lies the balance between privacy and transparency? It is an everlasting question, that lied at the heart of the recent judgement of the Court of Justice of the European Union (CJEU). The case concerned the Ultimate Beneficial Ownership registry which contains the information of who has a financial interest in companies. The registry was open to the public. The wide accessibility aimed to increase transparency and thereby prevent money laundering and the financing of terrorism (MLFT). The registry was open to public access and the question to the CJEU was whether the accessibility was lawful. The judgement of the CJEU declared the wide accessibility to be unlawful. The judgement acknowledges the importance of the concept of transparency but nevertheless considers the public access to be unproportionate. Leaving the question of how to balance transparency with privacy. The answer can be found in redesigning the European electronic Identity. This case-note will first discuss the facts of the case in section 2. The note will then continue by summarizing the opinion of the Advocate General in section 3. In section 4 the note will summarize the judgement of the CJEU. The case note will end in section 5 with an analysis of the impact of the case in relation to developing a digital European Identity.     

Reconciling Independence and accountability at the European Central Bank: The false promise of Proceduralism

This article revisits the balancing act between independence and accountability at the European Central Bank (ECB). It contrasts procedural and substantive concepts of accountability, and challenges the mainstream idea that independence and accountability can be reconciled through narrow mandates, the indiscriminate increase of transparency, the creation of multiple channels of accountability, and the active use of judicial review. These assumptions form the pillars of a procedural type of accountability that promises to resolve the independence/accountability dilemma but fails to do so in practice. The article brings evidence to show how ECB accountability has become a complex administrative exercise that focuses on the procedural steps leading up to monetary and supervisory decisions while simultaneously limiting substantive accountability. The failure to acknowledge the trade‐off between independence and accountability (said to be ‘two sides of the same coin’) has resulted in a tendency to privilege the former over the latter.     

死刑替代位阶上无期徒刑的改良

死刑替代措施就是在不适用死刑的情况下应该采取的、用来代替死刑的刑罚方法。死刑替代措施应以现行刑罚体系为基础,以废除或限制死刑实际适用为前提进行考察,选择能够直接担当"最严厉"法定刑角色,保持足够的威慑力的刑种。死缓不是刑罚种类意义上的死刑替代措施;不得假释的终身监禁不符合"人总是可以改造的"的基本理念;无期徒刑是中国刑罚体系中仅次于死刑的刑种,蕴含有较强的威慑力,通过适当改良,能够产生足够的类似于死刑的威慑力。作为替代死刑的方法,设置无期徒刑先予关押期是上乘选择。考察无期徒刑在有期徒刑与死刑中的衔接地位,借鉴国外实际执行无期徒刑的经验,确定10年的先予关押期较为适宜。     

Breaking Silos of Legal and Regulatory Risks to Outperform Traditional Compliance Approaches

European Journal on Criminal Policy and Research - The ever-evolving legal and regulatory landscape and resulting pressure on organizations to adapt and comply is just one of many factors that have...     

Reconciling Quinlan and Saikewicz: decision making for the terminally ill incompetent

One of the most perplexing problems in the medicolegal field concerns the criteria on which decisions not to treat terminally ill incompetent patients should be made. These decisions traditionally have been made by physicians in hospitals--sometimes with the assistance of the patient's family--on the basis of their perceptions of the patient's "best interests." Recently, two state supreme courts have ruled on this question. The New Jersey Supreme Court, in the Quinlan case, developed a medical prognosis criterion, and permitted the patient's guardian, family, and physicians to apply it with the concurrence of a hospital "ethics committee." The Massachusetts Supreme Judicial Court, in the Saikewicz case, adopted, on different facts, the test of "substituted judgment" to be applied by a probate court after an adjudicatory hearing. The two cases have been interpreted by many in the medical profession as representing conflicting viewpoints--one supportive of traditional medical decision making and the other distrustful of it. It is the thesis of this Article that Quinlan and Saikewicz are in fundamental agreement and can be reconciled by the next state supreme court that rules on this question. Both courts enunciate a constitutional right to refuse life-sustaining treatment, based on the right to privacy. They agree that incompetents should be afforded the opportunity to exercise this right, and that certain state interests can overcome it. They agree also that physicians should be permitted to make medical judgments, and that societal judgments belong in the courts. The differences in how the opinions are perceived result from the interplay of several factors: the differences in the facts of the cases; the inarticulate use of the term "ethics committee" by the Quinlan court; the literal interpretation of the role of such a committee by the Saikewicz court; a desire for 100 percent immunity on the part of physicians and hospital administrators in Massachusetts; and advice from their counsel on how such immunity can be guaranteed. It is the author's hope that this Article will help to dispel much of the misinformation surrounding these two cases, and to refocus the debate on how decisions should be made for the terminally ill incompetent patient on the real issues regarding criteria and the decision-making process that remain to be resolved.     

The EU's Climate Leadership: Reconciling Ambition and Reality

This article argues that while the EU aspires to and is capable of structural, directional and instrumental leadership in the global climate regime, it thus far has not fully utilized this potential. Partly this is because the EU's shortcomings with respect to implementation have reduced the credibility of its leadership, partly because the complex internal negotiations tend to divert attention away from consideration of the impacts of its negotiation position on other countries. Nonetheless, the EU is moving the regime-building process forward. It is recommended that if the EU wishes to continue acting as a leader, it then needs to combine the three types of leadership with a short, medium and long-term strategy.     

On Reconciling Irreconcilables: Neo-liberal Globalisation and Human Rights

This article examines the tensions between the presently dominantform of globalisation, which will be referred to as neo-liberalglobalisation, and the protection of human rights. The argumentdeveloped and defended here, in essence, is that one cannotbe committed to the protection of fundamental human rights andat the same time acquiescent in the dominant model of globalisation.Consequently, it is argued that advocates for human rights,be they grassroots campaigners, academics or members of theglobal human rights officialdom, must take a strong stance againstprevailing orthodoxies in order to genuinely advance and entrencha culture of human rights protection. A large element of theargument presented here will be that conventional discourseon human rights and globalisation has misunderstood the natureof globalisation. In contrast to the standard narrative in thisfield, I will posit my own understanding of globalisation, thatis neo-liberal globalisation, and then argue that this modelis inimical, both in theory and practice, to the protectionof human rights. Having done this, I will then go on to arguethat all human rights advocates are faced with a choice (notan easy choice, but a necessary one) between acquiescence ina process which is inherently inimical to the protection ofhuman rights, or utilising human rights to challenge and overcomethe dominant model of globalisation.     

Reconciling Trade and Culture: A Global Law Perspective

This article provides an overview of the most essential issues in the trade and culture discourse from a global law perspective. It looks into the intensified disconnect between trade and culture and exposes its flaws and the considerable drawbacks that it brings with it. It is argued that these drawbacks become especially pronounced in the digital media environment, which has strongly affected both the conditions of trade with cultural products and services and cultural diversity in local and global contexts. In this modified setting, there could have been a number of feasible “trade and culture” solutions—i.e., regulatory designs that while enhancing trade liberalization are also conducive to cultural policy. Yet, the realization of any of these options becomes chimerical as the line between trade and culture matters is drawn in a clear and resolute manner.     

刑事审判公开实施效果实证研究——基于传统与信息化两个途径的考察

刑事审判公开可通过传统与信息化两个途径实现。传统途径下,法院消极公告、公众很少旁听,刑事审判公开实施效果未能达到预期。信息化背景下诸多法院开始践行裁判文书上网等新举措,对审判公开起到了一定的促进作用。但总体而言,全国仍有大量基层法院信息化建设较为落后;已经开始实行信息化公开的法院也表现出较为明显的应用滞后于建设,效果依然有限。就前者而言,认为没有公告必要、担心旁听产生的工作压力是法院消极公告的主要原因;不关心、没时间等诸多主、客观因素共同导致公众较少参与旁听。就后者而言,经费有限是法院信息化建设的瓶颈,缺乏完善的制度规定是其应用滞后于建设的症结。未来的刑事审判应当同时发展旁听、信息化及其它形式的公开。     

Reconciling MacCormick: Constitutional Pluralism and the Unity of Practical Reason

This article begins by assessing the ways in which the life and work of Neil MacCormick exemplified a dual commitment to the local and particular—especially through his advocacy of nationalism—and to the international and the universal. It then concentrates on one of the key tensions in his work which reflected that duality, namely the tension between his longstanding endorsement of constitutional pluralism—and so of the separate integrity of different “local” constitutional orders—and his belief in some kind of unity, and so community, residing in the moral and rational properties of all law. The article continues by considering a number of ways in which this tension may be resolved. It concludes, with particular reference to MacCormick's late work on ethics, that the answer may be found through the idea of a general unity of practical reason which undergirds the various special orders of practical reason by which particular legal systems are distinguished.     

Reconciling Autonomy and Beneficence in Treatment Decision-Making for Companion Animal Patients

This article explores how the concept of consent to medical treatment applies in the veterinary context, and aims to evaluate normative justifications for owner consent to treatment of animal patients. We trace the evolution of the test for valid consent in human health decision-making, against a backdrop of increased recognition of the importance of patient rights and a gradual judicial espousal of a doctrine of informed consent grounded in a particular understanding of autonomy. We argue that, notwithstanding the adoption of a similar discourse of informed consent in professional veterinary codes, notions of autonomy and informed consent are not easily transferrable to the veterinary medicine context, given inter alia the tripartite relationship between veterinary professional, owner and animal patient. We suggest that a more appropriate, albeit inexact, analogy may be drawn with paediatric practice which is premised on a similarly tripartite relationship and where decisions must be reached in the best interests of the child. However, acknowledging the legal status of animals as property and how consent to veterinary treatment is predicated on the animal owner’s willingness and ability to pay, we propose that the appropriate response is for veterinary professionals generally to accept the client’s choice, provided this is informed. Yet such client autonomy must be limited where animal welfare concerns exist, so that beneficence continues to play an important role in the veterinary context. We suggest that this ‘middle road’ should be reflected in professional veterinary guidance.     

Trade Liberalization and Regulatory Diversity: Reconciling Competitive Markets with Competitive Politics

This paper questions the more extreme or indiscriminate claims for international harmonization or policy convergence with respect to many areas of within-the-border domestic policy diversity. The welfare implications, both domestic and global, of policy harmonization or convergence are highly ambiguous in many contexts. Proponents of more extreme forms of international harmonization of domestic policies also severely discount the importance of competitive governments and politics as a form of demand revelation. A third premise is the distinction between unilateralism and contractarianism, which argues for the adoption of ground-rules in international trade treaties that minimize the extent to which harmonization can be induced by judicial fiat on the one hand, or threats of unilateral sanctions on the other. A final premise is that despite the achievements of the European Union in promoting positive integration, the supranational institutional structures of the EU do not exist now or in the foreseeable future in other international trade and investment contexts, which severely limits the transferability of the EU experience, and argues instead for an elaboration of the negative integration approach that has historically characterized the position of the GATT on NTB's.In the light of these premises, the paper then goes on to examine objections by countries of destination to domestic policies of countries of origin, including (a) anti-dumping duties; (b) competition/anti-trust: export cartels; (c) subsidies and countervailing duties; (d) environmental policies; (e) labour standards.The paper then reverses the perspective and examines objections by countries of origin to domestic policies of countries of destination, including (a) domestic subsidies; (b) competition/anti-trust policies; (c) intellectual property; (d) health, safety, environmental, and conservation measures.The paper concludes by arguing for a refined principle of National Treatment, with appropriately defined exceptions thereto as the framework for evaluating allegations of non-tariff barriers with respect to domestic policy measures beyond or within a particular country's borders. While this conclusion would not, of course, preclude negotiations among countries for mutually beneficial forms of harmonization of domestic policies, it would seek to minimize the threat points that each country brings to these negotiations so as to reduce the risk of coerced forms of harmonization reflecting asymmetric bargaining power, or worse, coerced forms of discriminatory managed trade arrangements.