Market freedoms and private interactions under EU law

China-EU Law Journal - The Court of Justice of the European Union has ascertained that free movement provisions as enshrined in European Union primary law entail not only mandatory rules...     

Beyond the public and private divide: remapping transnational climate governance in the 21st century

This article provides a first step towards a better theoretical and empirical knowledge of the emerging arena of transnational climate governance. The need for such a re-conceptualization emerges from the increasing relevance of non-state and transnational approaches towards climate change mitigation at a time when the intergovernmental negotiation process has to overcome substantial stalemate and the international arena becomes increasingly fragmented. Based on a brief discussion of the increasing trend towards transnationalization and functional segmentation of the global climate governance arena, we argue that a remapping of climate governance is necessary and needs to take into account different spheres of authority beyond the public and international. Hence, we provide a brief analysis of how the public/private divide has been conceptualized in Political Science and International Relations. Subsequently, we analyse the emerging transnational climate governance arena. Analytically, we distinguish between different manifestations of transnational climate governance on a continuum ranging from delegated and shared public–private authority to fully non-state and private responses to the climate problem. We suggest that our remapping exercise presented in this article can be a useful starting point for future research on the role and relevance of transnational approaches to the global climate crisis.

The contribution of EU public procurement law to corporate social responsibility

This article argues that while EU public procurement law increasingly allows public authorities to take environmental and social considerations into account in public purchasing decisions, it does impose limits on the possibility for authorities to incentivise corporate social responsibility (CSR) policies through public procurement. These specific limits are the result of the EU legislator's choice to endorse the Court of Justice's ordoliberal approach to public procurement law. This approach is in tension with EU CSR policy, and more broadly, the EU's non‐economic goals such as environmental protection, the fight against climate change, human rights and social policy. It reflects a normative preference for the right of undertakings to compete for a tender over the freedom of government authorities to choose a supplier on public interest grounds even if these choices are based exclusively on a legitimate public interest and should be reconsidered.     

Section 8 orders on the public-private law divide*

While section 9(2) of the Children Act 1989 prevents a Local Authority from applying for a child arrangements order directly, a case file study of residence and contact orders made in 2011 found that a significant number of applications for residence orders in the County Court were supported and sometimes even instigated by local authority children’s services (Harding & Newnham, 2015). The findings of the study demonstrate that residence orders often formed part of solutions offered to the family and can even operate as an alternative to formal public law remedies in situations where the parents are no longer able to provide care, and grandparents or other relatives take over. In these ‘hybrid cases’ private law orders are used to resolve situations on the fringes of public law action and, in some cases, divert cases from voluntary accommodation or formal care proceedings. This article raises questions about whether cases are being diverted to private law remedies in an appropriate manner and argues that closer scrutiny of the practice is required to ensure that the rights of parents, children and kinship carers are appropriately respected.     

私法责任正当性刍论--在违约责任和侵权责任中求证

私法责任制度设定的直接原因是违反了法定或约定的义务 ,直接目的是要归结出一种法律上的否定性评价。从这个角度来说 ,私法责任制度是为了维护在先的制度权威而产生的后续制度保障。这种后续制度在理性表现和价值体现方面依赖于在先制度 ,但又不完全依托在先制度 ,也表现出本身的制度理性。     

Internet service providers as law enforcers and adjudicators. A public role of private actors

Private actors have become increasingly involved in the law enforcement process in recent years, taking up more proactive roles and being increasingly engaged in choices between conflicting rights and freedoms. The development and spread of information and communication technology (ICT) created a set of conditions in which the participation of private actors (service providers in this case) appears to be a necessity. These conditions include, for example, a lack of physical borders for ICT technologies, the speed and width of the spread of information on the Internet, as well as the growth of technological behemoths. The resulting reaction can be seen in various sectors, such as combatting illicit content online or gathering digital evidence. While executing these roles they may be compelled – de jure or de facto – to make value judgments which traditionally belong to the public authorities. At the same time the legal framework is either lacking or it does not fully cover the consequences of this fundamental paradigm shift, to the detriment of the authorities, private actors and persons concerned.The objective of this article is to examine the most important features of these developments and analyse resulting key legal problems. The author demonstrates that the legal landscape of cooperation between law enforcement and service providers must be rethought and offers a direction for this reflection.     

Robots,standards and the law: Rivalries between private standards and public policymaking for robot governance

This article explains the complex intertwinement between public and private regulators in the case of robot technology. Public policymaking ensures broad multi-stakeholder protected scope, but its abstractness often fails in intelligibility and applicability. Private standards, on the contrary, are more concrete and applicable, but most of the times they are voluntary and reflect industry interests. The ‘better regulation’ approach of the EU may increase the use of evidence to inform policy and lawmaking, and the involvement of different stakeholders. Current hard-lawmaking instruments do not appear to take advantage of the knowledge produced by standard-based regulations, virtually wasting their potential benefits. This fact affects the legal certainty with regards to a fast-paced changing environment like robotics. In this paper, we investigate the challenges of overlapping public/private regulatory initiatives that govern robot technologies in general, and in the concrete of healthcare robot technologies. We wonder until what extent robotics should be governed only by standards. We also reflect on how public policymaking could increase their technical understanding of robot technology to devise an applicable and comprehensive framework for this technology. In this respect, we propose different ways to integrate the technical know-how into policymaking (e.g., collecting the data/knowledge generated from the impact assessments in shared data repositories, and using it for evidence-based policies) and to strengthen the legitimacy of standards.     

现代性与私法文化精神论纲

现代性运动展现了差异性、多样性、自由自主性的私人生活领域和活动空间 ,促进了私法文化精神和法治信仰的形成 ;而现代性的当代困境、危机和重建倾向 ,则促进了私法文化精神的当代转型和反思超越。在现代性追求和重建的复杂背景下推进中国法治进程 ,就要积极培育具有时代诉求的私法文化精神 ,以促进私法秩序和法治国家的建立。     

Autonomy and private ordering in contract law

This essay reviews Michael J. Trebilcock's book,The Limits of Freedom of Contract (Cambridge, MA: Harvard University Press, 1993), examining crucial and controversial social issues within the rigorous framework of the law and economics of contract. The idea that private markets are the primary institutions for the allocation of limited resources is central to any private ordering model of contract law. Yet such a premise leaves a number of fundamental questions unanswered. Trebilcock is critical of the insufficiency and ambiguity of current contract theory in addressing fundamental legal issues relating to the limits of freedom of contract. Pushing the frontiers of current legal theory, Trebilcock revisits the slippery notion of freedom of contract and tests the actual reach of economic analysis in providing a coherent answer to compelling social questions. The author pursues his ambitious task by examining the conclusions reached by competing paradigms of analysis. In spite of his declared trust in the economic approach to law, Trebilcock pays close attention to alternative analytical traditions, comparing the conclusions of various intellectual perspectives with those suggested by an economic framework of private ordering. The book objectively examines strengths and weaknesses of competing views, affording the reader a balanced position from which to conclude for herself, by illustrating the practical implications of the various approaches. In a number of instances, Trebilcock shows how different theoretical premises may indeed be conducive to similar institutional outcomes.Associate Professor of Law, George Mason University. The support of the Sarah Scaife Foundation and of the John M. Olin Foundation is gratefully acknowledged, as are the helpful comments of Jonathan C. Harris and Charles K. Rowley. Extensive remarks received from Michael J. Trebilcock prior to publication allowed me to remedy earlier omissions.     

How to build European private law: an economic analysis of the lawmaking and harmonization dimensions in European private law

In the process of building a European Private Law, the lawmaking and harmonization dimensions??the modes of harmonization and even more, the scope and reach of the harmonizing effect of the European rules- appear as crucial issues. We show how the harmonization strategy is as important a question as whether we should have European Private Law at all. We present an economic discussion of the different modes of harmonizing Private Law in the abstract, and how they are likely to differently affect outcomes. We also present in informal terms a simple economic model of how to build optimal harmonized rules and standards in a setting of pre-existing separate and diverse national ones, and we systematically explore how the different harmonization regimes (maximum harmonization, minimum harmonization, and pure co-existence of harmonized and national standards) affect the outcomes of the harmonization process.     

法律何时为民间借贷松绑

中国金融结构的扭曲意味着，通过低收入和低利率，中国普通百姓和中小公司一直在补贴大公司和富人，而民间借贷的松绑将成为改变这一切的一个开始.     

“公诉转自诉”案件中之自诉权探微

分析“公诉转自诉”制度设置的合理性和存在缺陷，并在此基础上从制度保障和救济措施两方面提出立法建议。