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Lorand Bartels

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Francesco Biagi

In the past three years, Morocco and Jordan have introduced political and constitutional reforms. Indeed, despite the fact that King Mohammed VI in Morocco and King Abdullah II in Jordan continue to hold near absolute powers, both the 2011 Moroccan Constitution and the constitutional amendments to the 1952 Jordan Constitution introduced some important democratic novelties. The impression is that Mohammed VI and Abdullah II gave rise to what can be defined as ‘surviving constitutionalism’: a constitutionalism whose main purpose is not to democratize the country, but to guarantee the regimes' own survival. We are therefore dealing with the paradox according to which constitutionalism – which should be aimed at limiting arbitrary power – is used as a means to maintain and strengthen authoritarian/semi-authoritarian regimes. This paper shows that the constitutional and political reforms carried out in these two countries were indeed primarily directed to appease people's discontent to ensure the regimes' stability and continuity. However, this paper also argues that it is far from certain that this strategy will work in the long run. A comparative analysis with other past authoritarian regimes (in particular Chile, Mexico and Egypt), shows that the constitutional institutions introduced in Morocco (e.g. the duty of the King to appoint the Head of Government from the party which wins the most seats in the elections to the House of Representatives, the introduction of concrete constitutional review, and the strengthening of judicial independence) and Jordan (e.g. the establishment of a Constitutional Court, judicial oversight of elections, and the abolition of the King's power to indefinitely postpone elections) should not be underestimated: they may become effective constraints on authoritarian power in the future. Thus, the ‘surviving constitutionalism’ that has served to appease the public's dissatisfaction in the short term may boomerang in the medium and long term.

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J.G. Allen

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Nicholas Hoggard

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Prabhash Ranjan

Due to the adjudication of a large range of regulatory measures under investment treaty arbitration (ITA), the belief that bilateral investment treaties (BITs) fail to balance investment protection with a host country's right to regulate has gained currency as of late. In order to balance investment protection with regulation, many scholars have advocated for the use of public law principle of proportionality to interpret BITs. This paper critically examines the application of the principle of proportionality in BITs under four heads. First, given the fact that many questions related to independence and impartiality of ITA remain unanswered, the use of proportionality in ITA might further dent the credibility of the system by granting significant discretion to arbitrators. Second, proportionality principle has been applied in a flawed manner by many arbitral tribunals, which raises doubts about its application. Third, one should be very careful in relying on jurisprudence of European Court of Human Rights and the WTO to support the application of proportionality in ITA because of the many contextual differences between the two. Fourth, when interpreting BITs, application of principle of proportionality in many instances will completely ignore the clear textual language and thus violate the rules of treaty interpretation.

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Merryl Lawry-White

This article examines the invocation and application of universal principles regarding reparation for moral damage across three different ‘sub-systems’ of international law: international human rights law, international criminal law and international investment law. The extensive invocation of certain principles drawn from a state-to-state context, including in scenarios implicating non-state actors, suggests a degree of universality.

Yet, this conclusion is challenged by the variety of approaches taken by bodies constituted under and applying different international law specialisms. The context and mandate of the body in question, as well as the exigencies of particular situations, affect the extent to which universal principles are followed in practice. The considerations underlying the form and standard of reparation, and the ultimate outcome, for example, serve to demonstrate some of the tensions between universality and cosmopolitanism.

There is a growing focus on reparation as a modality and mechanism of justice. The effectiveness of reparation in this role is tied to the extent to which it responds to claimants/petitioners/victims' needs. While universality may play a role in inter alia promoting certainty and conserving resources across a varied international law landscape, a strict approach may undermine the responsiveness of reparation as a measure of justice in different sub-systems and thus of the value of a more cosmopolitan world that opens up avenues for redress for a variety of identities.

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Giulio Bartolini

The effectiveness of the international legal system and its capacity to be ‘universal’ is largely dependent on the attitude of domestic authorities towards international rules, which can be influenced by solutions provided in constitutions. Specific attention should be paid to the role and rank of sources of international law in domestic legal orders and their relationship with the constitution and other national sources. In the past, scholars identified three different approaches to this issue (Western constitutions, Socialist States and Third World countries). However, it is relevant to examine the current state of the art in contemporary constitutions, due to novelties concerning the attitude of States towards international sources. A survey of these texts reveals a spectrum of solutions, including: constitutions that ignore the topic; the express subordination of international law to the constitution and/or acts of Parliaments; and the predominance of general custom and/or international treaties over national legislation. This assessment clearly identifies some potential difficulties for international law to apply equally and indiscriminately across domestic legal systems even if a general survey indicates the increasing openness of contemporary constitutions towards international law. Consequently, a series of mechanisms have also been included in contemporary constitutions to solve conflicts between domestic and international rules. Nonetheless, in some instances, difficulties to reconcile international law with national constitutions can be recognised which contribute to undermining the ‘universal’ character of the international legal order.

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Reijer Passchier and Maarten Stremler

The issue of unconstitutional constitutional amendments is extremely topical in the field of national and comparative constitutional law. In a recent article (2013), Roznai signals that ‘the global trend is moving towards accepting the idea of limitations—explicit or implicit—on constitutional amendment power’. But what about the ‘supranational’ EU? Would there be room to argue that substantive limitations of amendability—explicit or implicit—also exist as regards the EU Treaties? Furthermore, if so, would the Court of Justice of the European Union (CJEU) have the competence to enforce such limits? These questions are the central focus of this article. We argue that accepting the idea of substantive requirements of Treaty revision may be one of the next important steps in the ongoing process of EU constitutionalisation. In the first part of the article, we explore what kind of arguments are being used to justify a doctrine of unconstitutional constitutional amendments in national systems. Next, we ascertain to what extent such arguments can be used to justify a doctrine of unconstitutional constitutional amendment in EU law. In conclusion, we argue that it is quite conceivable that certain EU Treaty amendments would indeed be deemed to be a violation of the Treaties. Moreover, we contend that it is not unimaginable that the CJEU will assume the power to substantively review amendments to the EU Treaties, in cases where the Member States would choose to put forth suspect revisions to these documents.