This article reviews the Appellate Body Report in the Ukraine–Ammonium Nitrate dispute that focused on the impact of Russia's dual pricing in the natural gas market on the ammonium nitrate market. Interpreting the WTO Anti-Dumping Agreement (ADA), the Appellate Body rejected the possibility to reject input costs, which, though distorted, were duly reported in the company's records, and to replace them with a surrogate price which, for the Ukrainian authorities, was the (adjusted) export price of Russian natural gas at the German border. In this article, (a) we fully review the background of the dispute, showing the connections between natural gas and ammonium nitrate prices, and the impact on Russia's price regulation of the domestic market on them; (b) we then review the ADA and concur with the interpretation of the Appellate Body, essentially for systemic reasons; (c) for completeness, we also investigate whether econometrics could accurately determine the natural gas benchmark price in Russia and conclude in the negative; (d) since dual pricing gives an economic benefit to domestic ammonium nitrate producers, we finally test dual pricing under the WTO subsidy rules. The conclusion is that the current disciplines are not likely to apply to dual pricing and lead us to conclude that important distortions are currently left without regulation in the WTO.

This article explores the European Parliament's July 2018 non-legislative resolution proposing to the European Commission a directive for facilitating social enterprise companies’ cross-border activities. The proposal is first situated within the context of the social economy and how the sector has grown in importance to European integration. The proposal and the European Commission's response are then examined. Although the European Commission was not convinced that Member States would be amenable to the proposal, a consensus may already exist that is sufficient to garner their support. Even if this prediction is wrong, however, it is argued that there are reasons to surmise that the proposal will likely be reassessed and ultimately successful at some future point. Finally, the proposal is viewed with a reflexive harmonisation lens. Through the analysis, regulatory issues are identified, and a solution is then suggested.

The rise of China as a genuine world power, economically and militarily, constitutes the gravest challenge faced by the liberal international order constructed in the aftermath of the Great Depression and the Second World War. A major source of strain in the trade relations between China and the other core members of the liberal world trading system is its extensive use of state-owned enterprises as an instrument of general (domestic) economic policy. This paper builds on Ruggie's theory of embedded liberalism and the theory of economic policy to characterize the political and economic difficulties and opportunities in moving toward a new regime for dealing with subsidies. The conclusion sketches some goals such a regime should seek to embody.

Contemporary laws have been responding to the challenges of ageing societies. Elder people have gradually become a special, if not disadvantaged, social group to be protected, cared for, and even censored by law in the name of protection. The UN has long discussed a Convention to protect the distinctive human rights of old persons while invoking the Convention on the Rights of Persons with Disabilities to protect the dignity of senior citizens. Under national laws, adult-guardianship, welfare, and medical laws are strengthened in the name of better elder care, yet forcing old people to give up the freedom and autonomy that they have enjoyed throughout adulthood. This paper thus argues for the socio-legal construction of “elderhood” to respond to the special needs of senior citizens to maintain individual dignity. By observing narrative accounts of elders in care, socio-legal images of Taiwan elderhood may be presented for analyses. A proposal is then made to suggest the socio-legal construction of the individual dignity of elder people.

On February 5, 2021, the Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) delivered its decision on territorial jurisdiction in the “Situation in Palestine.” The result reflects the controversy surrounding the process and the merits: a divided bench, with a Minority decision three times the length of that of the Majority. The outcome marked the culmination of sustained attempts by Palestinians and their supporters over more than two decades to engage the ICC, beginning with contentious negotiations preceding the vote on the Rome Statute at the Rome Conference and including three preliminary examinations, the third of which concluded with this decision. The Rome Statute, adopted by vote on July 17, 1998, included elements that negotiators acknowledged had never appeared before in international law, and were directed at an Israeli target. For this reason, in large part Israel, which had long supported the principle of an international criminal court, chose not to become a state party to the Statute or to participate in the proceedings.

In 1976, the U.S. Congress enacted the Foreign Sovereign Immunities Act (FSIA) to afford foreign sovereigns presumptive immunity from the jurisdictional reach of U.S. courts absent the application of one of the exceptions specifically enumerated in the statute. In Federal Republic of Germany v. Philipp, the U.S. Supreme Court considered whether a foreign sovereign's “taking of property from its own nationals” falls within FSIA's so-called expropriation exception for “property taken in violation of international law.”

This article explores the creation, circulation, and regulation of informal trade credit or “ograyi” in Afghanistan. The practice of ograyi allows businesses to access short-term credit, from either their suppliers or third parties, to acquire specified goods. This paper provides an account of the non-legal practices that regulate ograyi transactions. Ograyi vitally depends on the development of trust between parties. Clientelism helps to maintain stable relationships that can offset market unpredictability. Widespread market norms and practices establish the general behaviour of participants. Parties also renegotiate the terms of the contract if circumstances make it impossible for the creditor to repay the loan in the agreed timeframe. Furthermore, bank credit remains largely unavailable or unappealing to many businesses, and the legal system provides limited recourse in the case of contractual breach. Thus, the non-legal practices regulating ograyi serve as a substitute for legal coercion.

This article identifies the essential differences between public and private adjudication and their implications for the legitimacy and efficiency of dispute resolution institutions, as well as the rule of law. Public adjudication comes at a significant cost for the taxpayers but helps secure a consistent body of case law, promotes public policy goals, and allows third parties to know the rules of conduct in advance to prevent undesirable activities. This article shows that procedural rules of these institutions (regardless of whether the procedure is called adjudication or arbitration) differ when it comes to the appointment of adjudicators, their professional background, and how long they serve. Public and private institutions consistently follow different approaches to transparency and confidentiality of proceedings, the application of primarily substantive rules or principles to resolve disagreements, and the extent to which decisions can be reviewed internally or externally. By examining the procedural rules and practices of selected institutions, the article asserts three main claims. First, the choice of public or private adjudication is likely to lead to different procedural outcomes, including the cost of the process and the duration. Second, the legitimacy of any dispute resolution system must rest on both procedural and substantive aspects, while in reality these two are often viewed in isolation. Finally, the article shows how institutions could learn from each other to become more efficient and strengthen their legitimacy.

Previous research has analysed a range of domestic stakeholders that make national governments’ commitments to international human rights law credible, including an independent judiciary, legislative veto players, political opposition groups, and non-governmental organizations. But how do the power dynamics within the government affect state compliance with international human rights law? Building on the basic understanding that international human rights law needs to pass through domestic political and administrative processes before it can be implemented on the ground, this article articulates a reputation-based theoretical framework to explain how the lack of reputational mechanisms at the local level and national leaders’ shifting of blame for non-compliance to sub-national officials and the internal governance structure – two salient characteristics in a decentralized political system – make international human rights law less effective. A case study of US compliance with Article 36 of the 1963 Vienna Convention on Consular Relations sheds light on how international reputational concerns interact with divided authority structure to shape national leaders’ and subnational authorities’ policy responses to the enforcement of international human rights standards.

This short comment offers two additional arguments, missing from Geir Ulfstein’s account, which may bolster the case for constitutionalisation of the ECtHR. The first is about the ‘pilot judgments’ through which the Court addresses systemic deficits in national legal systems and thus ensures a minimal synchronisation of human rights protection throughout the CoE system. The second manifestation of constitutionalisation of the ECHR system is the increasing role of the ECtHR in the implementation of its own judgments. Ultimately, the legitimacy for the constitutional ambitions of Strasbourg Court should be located primarily in the argumentative resources of the court and in its pursuit of ‘public reason’.

This article sheds a critical light on judicial dialogue when its purpose and meaning are taken beyond cross-fertilization and comparative reasoning. It cautions against a conceptualization of judicial dialogue as a means to foster commonalities between courts and to legitimize judicial governance. The argument develops from an idealized notion of a ‘transnational judicial public sphere’. In this sphere, domestic, regional and international courts ideally form common opinions through dialogue and pursue common purposes. The danger of this understanding is to construct a new paradigm that not only overlooks important differences in the interest, influence and opinion of courts, but also overstates the socio-normative significance of exchanges between courts and of judicial governance in general. The critical potential of judicial dialogues lies less in the formation of commonalities or in the legitimization of judicial authority than in bringing alternatives and a plurality of opinions to the fore.

Admissibility of questions for preliminary ruling – Independence of courts and tribunals in the case law of the Court of Justice of the European Union as Dorsch Consult criterion under Article 267 TFEU – Independence of courts and tribunals in the case law of the Court of Justice of the European Union as element of the Rule of Law value under Article 19 TEU – Structural inadmissibility of questions for preliminary ruling as perverse consequence of the attempts to safeguard independence of the EU judiciary

This article argues that there are firm grounds upon which to regard the act of denying a person's right of return to their country as a crime against humanity. To make its case, the article builds upon two justifications for the right of return: its grounding based on the human need to belong, and its purpose as a means of preventing rightlessness. The human interests underlying these justifications, the article contends, are similarly those reflected by the image of humanness ingrained within the law of crimes against humanity. Therefore, when the right of return is denied, it is also an assault against humanness as such – a crime against humanity. Recently, proceedings before the International Criminal Court (ICC), with regard to the situation in Bangladesh/Myanmar, have made this question highly relevant. Both the Court's Pre-Trial Chamber and Prosecutor have raised arguments in support of regarding the denial of the right of the Rohingya peoples to return to Myanmar a crime against humanity of other inhumane acts. Consequently, this article attempts to offer support for what might turn out to be an important doctrinal development in ICC jurisprudence.

In July 2020 the International Criminal Court opened the trial in the Al Hassan case. For the first time in the history of international criminal justice a defendant is being tried with the charge of the war crime of sentencing or execution without due process in the context of a non-international armed conflict. Together with its equivalent in international armed conflicts – the war crime of denying a fair trial – this offence falls within the category of the war crimes of denying judicial guarantees. Although there are differences in their constitutive elements, both offences prohibit states and armed non-state actors from depriving prisoners of war and civilians of certain minimum judicial guarantees. The provisions that regulate these two crimes, however, present interpretative and practical issues which, so far, have not received sufficient consideration. Most notably, the material elements of the offences raise a range of interpretative doubts and are of cumbersome application. The objectives of the article are (i) to identify the issues posed by the material elements of the war crimes of denying judicial guarantees, (ii) to warn of the pitfalls hidden by the interpretation of the offences, and (iii) to trigger the debate on the issues that the crimes raise.

After the financial crisis of 2008, the European Union (‘EU’) not only increased its substantial legislation regarding financial services, but also built up a strong and unified system of financial market supervision. In particular, central surveillance authorities were created. These were given far-reaching competences with regard to substituting dysfunctional national authorities or players in the financial services sector. The three European Economic Area (‘EEA’) and European Free Trade Association (‘EFTA’) States—Iceland, Liechtenstein, and Norway—participate in the EU's internal market through their membership of the EEA. In order to continue participating on an equal footing in the internal market for financial services and to honour their duty to maintain homogeneity, the EEA EFTA States also had to incorporate the new institutional setup regarding financial services supervision. This obligation, however, in particular relating to certain intrusive powers of the new surveillance authorities, collided with some constitutional reservations, above all of the two Nordic EEA EFTA States. This article will show how these conflicting aims could be merged into a system that on the one hand guarantees the unified overall approach needed for strengthened surveillance of the internal market for financial services, and on the other hand safeguards certain constitutional reservations of the EEA EFTA States. It also looks at how third countries that do not (fully) participate in the internal market, such as the United Kingdom and Switzerland, are likely to be treated in this context by the EU.