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Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

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Tom Ginsburg

Although constitutional law often occupies the pride of place in public law discussions, this chapter argues along many dimensions, administrative law can be considered more constitutional in character than constitutions. It is both more reflective of local preferences and values, and also often superior in terms of limiting government behavior. It is also, in many contexts, more stable and enduring than are written constitutions. Paying attention to comparative administrative law as a feature of the unwritten constitution of nation-states helps to expose the limits of constitutions as regulatory devices.

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Veronique Magnier

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Geert Woltjer, Marius Hasenheit, Vasileios Rizos, Igor Taranic and Cristian Stroia

One of the fundamental causes of environmental and resource use problems are unpriced scarcity and perverse subsidies. The logical solution seems to be to correct perverse subsidies and to price goods that were unpriced through taxes or otherwise. These measures would also improve the government budget that may be used to reduce distorting taxes and invest in the green economy or for social purposes. In practice the adjustment process of taxes and subsidies is very slow, while at the same time a large number of policies for greening the economy would have been much cheaper and more effective if prices were right. Why is there so much resistance to do what seems to be logical from an economic point of view? This chapter attempts to answer these questions by analysing green taxation policies and discussions in the Netherlands, Germany and the UK as well as by comparing the dynamics in these countries. One conclusion is that we have to be very careful with indicators like the share of environmental taxes in the GDP, because classification is not consistent and because the taxes may not give incentives for greening the economy. In all three countries, the tax on energy has many exemptions that are sometimes used as a reward for making green agreements with governments. Third, coal in electricity production kept its privileges in Germany and the Netherlands in exchange for an agreement, while the UK introduced carbon taxes for coal, in practice forcing companies to close down coal-based electricity production. International competiveness, distributional issues and fear for stranded assets seem to be the main drivers against the consistent use of green taxation. Other issues are the administrative burden, enforcement problems and perception on the effectiveness of taxes. In cases where environmental taxes are explicitly related to labour tax reductions, people are generally not aware of this. In many cases the environmental taxes are relatively complex, such as for example in the UK where it is almost impossible to calculate the final tax people pay on energy use. Designing a lucid and consistent tax system is therefore crucial. A large number of exemptions does not fit into this. The European Emission trading scheme (ETS) creates an extra problem for green taxation, because a reduction in pollution in one country will be offset by more pollution in another country, except when the excess quota is taken out of the market.

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Why a claims commission?

Righting Wrongs after Conflict

Lea Brilmayer, Chiara Giorgetti and Lorraine Charlton

For any particular international dispute, there might be any number of different ways of peaceable resolution, some legal and others political or diplomatic. Claims commissions are a form of international arbitration that provide particular benefits, chief among them flexibility and the voluntary involvement of the parties in the creation and workings of the litigation. They are distinctive in that they focus on compensatory justice for violations of international law. Mass claims disputes are jurisdictionally and procedurally ill-suited to any currently existing standing court. For this reason they serve the interests of the international community as well as the interests of the state parties that create them. List of Keywords: Ad hoc litigation, arbitration, flexibility, party consent, interests of the international community.

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Who are the claimants and what are the claims?

Righting Wrongs after Conflict

Lea Brilmayer, Chiara Giorgetti and Lorraine Charlton

This chapter examines the kind of claimants to whom an international claim process is open and the types of claims that those selected claimants can bring for resolution and compensation in front of a claims commission. All IMCCs recognize states as claimants, either on their own behalf, or on behalf of their nationals. Certain claims commissions, notably the IUSCT, accepted claims filed directly by both natural persons and corporations. International organizations generally cannot submit claims, though the UNCC provided they could submit claims on behalf of certain individuals. In parallel to the kinds of claimants, the choice of the types of claims that will be heard by the IMCC is also key to its success. Certainly, the kind of claims is strictly linked to the events that resulted in the creation of the IMCC and to the types of losses and injury suffered. Thus, claims heard by the IUSCT mostly related to contracts, while claims submitted to the EECC predominately relate to breaches of humanitarian law. List of Keywords: types of claimants, states as claimants, individuals as claimants, types of claims, number of claims, small and large claims.

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Rudi Bekkers

This chapter examines the history and context of standardization and patenting. It begins by looking at how the discussion arose as to the relationship between patents and standards, and how this topic became more prominent on the agenda of companies, standard setting organizations, and regulators. It then looks at the empirical facts about patents in standards, focusing on standard-essential patents to describe how this phenomenon developed over time, but also how it is distributed among technology areas, standard setting organizations and specific standards. Concerns and problems are identified that could arise when patented technology is included in standards, leading to a discussion of patent policies in standard setting organizations. Likely reasons are identified as to why companies encounter more frequent conflicts over patents in standards, and a range of policy measures are examined.

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Peter L. Lindseth

This chapter questions the dominant legal description of the EU, centered on the jurisprudence of the European Court of Justice (ECJ), which views the EU as a 'constitutional' level of governance in its own right. What a less ECJ-centric analysis tells us is that, despite what EU judges, lawyers, and law professors maintain, there are numerous features of EU public law that are not merely in tension with, but also that directly contradict, the dominant constitutionalist discourse. First and foremost, the EU remains almost entirely dependent on the Member States for the sine qua non of genuine constitutional power: the legitimate capacity to extract in a compulsory fashion and then redirect – what I am calling ‘mobilize’ – either fiscal resources (taxing and spending) or human resources (policing and defense) for the benefit of the polity as a whole. Secondly, even as to regulatory power that falls short of compulsory resource mobilization – particularly rulemaking and adjudicative power – the EU remains dependent on mechanisms of national oversight and intermediation that channel the more robust democratic and constitutional legitimacy of national institutions to the EU level. These mechanisms of ‘mediated legitimacy’ – drawing importantly on models developed in the postwar administrative state – have been central features of the institutional development of EU governance since its inception. Armed with this analytical framework, we can begin to answer the core question posed by this chapter: What’s in a label? Stated in the most direct way possible, this chapter argues that it matters a great deal legally how we view the EU socio-historically, particularly in this challenging task of reconciliation. If we determine that the EU is not properly understood as autonomously ‘constitutional’ but instead is merely an ‘administrative’ level of governance (even of a novel, powerful, supranational type), this then has significant implications for how to reconcile EU law with its properly administrative character. Most importantly, it suggests that we should deeply question the nominal ‘as if’ constitutionalism of the ECJ, rethinking fundamental judicial doctrines to bring them more into line with the EU’s deeper administrative character in a socio-historical sense.

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What is efficiency?

On Ethics, Economics and Public Policy

Mike Berry

Chapter 8 is a central critical conceptual section of the book, dealing with the major ethical weapon of mainstream economics – the politically influential concept of economic efficiency, derived from the Pareto principle. It is the distributional value judgment inherent in the notion of ‘Pareto improvement’ that enables the seemingly (misleadingly) technical meaning of ‘efficiency’ to overwhelm alternative ethical drivers of public policy. The chapter draws out the limitations of the Pareto principle in both its strong and weak forms before addressing the controversial subjects of the theory of second best and the compensation principle. The latter expresses what I have called the ‘super strong’ Pareto principle providing the normative justification for the economists’ familiar tool – cost benefit analysis. This tool when applied routinely to policy biases outcomes in favour of the well-off and effectively zero values – in both monetary and non-monetary terms – outcomes that are difficult or impossible to ascribe monetary values to.