The focus of this Chapter is the ratione loci - the geographical scope of applicability - of IHL during NIAC. This chapter is divided into four sections. The first section provides a critical examination of the orthodox ‘territorial approach’ to determining IHL’s geographical reach during NIAC. The second section explores and evaluates the principal alternative to the territorial approach, referred to here as the ‘battlefield approach’. While both approaches possess certain advantages and limitations, it is argued that neither produce entirely satisfactory results. As a result, the third section proposes and explores a third alternative: a ‘functional approach’, the utility of which is demonstrated by its practical application to select provisions of both the hostilities and protections regime. The fourth section examines the legal implications of extraterritorial military operations, and briefly explores three legal bases for crossing an international border during NIAC: the consent of the territorial state; Chapter VII authorization from the UN Security Council; and self-defence pursuant to Article 51 of the UN Charter.

Chapter 3 lays down the normative foundations of the investigation with respect to populism as an ideational construct. The main claim is that populism distorts democracy and corrupts the rule of law. More precisely, populism distorts democracy in depriving the democratic process from the requirements of deliberation and representation, which I take as constitutive of democratic legitimacy. The rule of law (thinly or thickly defined) is not only distorted – it is corrupt.

Drawing on extensive consultations with relevant stakeholders in Uganda, this chapter seeks to understand how the international standardisation of transitional justice has impacted domestic transitional justice processes in Uganda, and notably victims’ roles therein. It zooms in on the increasingly sanitised involvement and participation of local stakeholders, including victims. The chapter shows how, despite the presence of language such as ‘local consultation’, ‘participation’, and ‘victims-centeredness’, a genuine intention among decision-makers to give meaningful effect to such principles has been missing. As such, formal ‘compliance’ with ideas about civil society and victim participation, as endorsed by international standards and guidelines about transitional justice, has not resulted in outcomes that met the expectations and demands of most local civil society and victim groups in Uganda. The chapter focuses mainly on the process surrounding the adoption of Uganda’s Transitional Justice Policy, but adds perspectives from other relevant frameworks and processes where particularly relevant.

This chapter introduces the whole volume, explaining the concept of constitutional imaginary, based on previous work, and also the book’s key aim: to ‘turn the tables’ between the ‘old’ and post-communist Europe, letting the latter speak for itself and define the terms of the debate between the two. The three themes emerging from post-communist Europe are presented: first, how the nature of statehood transforms when the state integrates into a supranational structure and how the imagined ‘other’ (e.g., the enemy, the Soviet Union or even Europe) influences the key concepts of national constitutional law, such as sovereignty, peoplehood or citizenship; second, the uses and misuses of history in the construction of constitutional imaginary; finally, third, there have been varieties of liberalism at play in the period of post-communist transformation (the ‘end of history’, from the perspective of the West). These need to be analysed separately, before the hegemonic ‘liberal ideology’ can be criticized. The greatest hope for this volume is that it will provoke further reflections and debates in both the West and East and that the latter will not only mirror the West, but becomes a true partner in the debate on the shape and future of Europe.

The French imaginary is a Republican imaginary that is premised on political liberty. The red thread across the political thought and the various constitutions of France has been the pursuit of the ideal political regime that would best realise political liberty and the general interest. That approach stands in stark contrast with the civil-liberty-focused Anglo-American liberal tradition, according to which state power ought to be curtailed in order to maximise individual rights. Those two essentially different traditions could rather peacefully coexist in Europe at the Westphalian time of the nation-states. The clash has, however, become inevitable in a time where globalisation and the latter’s regional avatars act as vehicles of Anglo-American liberalism. This chapter introduces the French constitutional imaginary, relying on the tools provided by intellectual history and constitutional law. It contrasts it with the Anglo-American political thought and shows how the former has remained strong despite the erosion caused by the pervasiveness of the latter.

The EU Takeover Directive’s primary mechanism intended to protect minority shareholders’ interests on a change of control is the mandatory bid rule. The rule leaves it to the Member States to determine the control threshold, to define what the equitable price is and to determine which parties are considered to be acting in concert. Member States may provide derogations from the mandatory bid rule, provided that the general principles of the Directive are respected. Member States have used their powers in different ways. This is not a bad thing as long as the Member States use this flexibility in a loyal way, taking due account of the overall purpose of the Directive and the purpose of the mandatory bid rule, and apply the rules in a way that makes sense in the context of local corporate governance models, the structure of the local stock markets, and local protections afforded by general corporate law. The appetite for amendments to the Directive is likely to be very limited. Provided that one accepts the premises for the existence of the mandatory bid rule in the first place, we do not see any pressing regulatory concerns that merit trying to improve this appetite.

This chapter intends to explore the roots of the Polish ‘constitutional crisis’ by utilising the concept of constitutional drift. While the Polish 1997 Constitution contains provisions that would enable interpreting it by using the lenses of Sciulli’s societal constitutionalism (which we call the ‘societal imaginary’), such opportunity was disregarded by more dominant liberal and communitarian imaginaries present in the political and constitutional discourse. The latter contributed to fostering a governance structure that strengthened the executive (the cabinet) at the expense of all social actors whose rights are strongly embedded within the Constitution – social partners, civil society and professional self-government organizations. Overall, the processes similar to those happening to the juridical power after 2015 in Poland, had been happening to other competitors to power prior to 2015 and constitutional crisis should be seen as a relatively late phase of the constitutional drift resulting from overlooking possibilities granted by societal imaginary.

Victims’ demands for reparations are epitomised as a non-violent resistance to the violence they have suffered. The chapter explores how victims resist state narratives, coercive tactics, and violence in their claims for reparations, reflecting on the long-term impact of such resistance. Drawing on interviews with over 100 victims across six case studies, the chapter develops three themes around resistance: social mobilisation; self-repair; and the struggle for reparations. It examines various forms of non-violent resistance, including bottom-up approaches, documentation of violations, and the creation of subalternate perspectives. The chapter also addresses the role of social movements in reparations, emphasizing the dynamic process of collective identity formation, grievance framing, and the negotiation of justice. In conclusion, the chapter underscores the importance of understanding reparations as a multi-faceted struggle involving legal, political, and social dimensions, and the need for continued advocacy and research to address the complexities and challenges faced by victims in their pursuit of redress.

The chapter explores how alternative futures were imagined in the late state-socialist system, using Soviet Estonia as a case study during the mid-perestroika period in the Soviet Union. In 1987–1988, Estonian reformist intellectuals and experts envisioned Estonia in multiple scenarios like an economically ‘self-manageable’ republic within a renewed Soviet Union, a socialist ‘sovereign’ republic sharing foreign and defence policies with the centre or an independent republic restored as the interwar state. The chapter explores the Estonian perestroika discourse that opened channels for reform discussions in 1987, especially examining the language and concepts used to produce these futures. It highlights how local reformists innovated economic-political vocabulary, facilitating but simultaneously delimiting the imagination of Estonia’s alternative futures. The chapter demonstrates how the innovations with the perestroika language caused unpredicted scenarios in 1988, as the Estonian Declaration of Sovereignty ignited a series of similar declarations in the union republics in 1989–1990.

Experimental legal regimes, notably regulatory sandboxes, seek to promote technological innovation while at the same time ensuring consumer protection against unsafe or unsuitable products and services. But in doing so, they may not always be able to prevent harm to consumers. This chapter explores the relationship between regulatory sandboxes and private law. Given that within such sandboxes the participating firms may benefit from regulatory relief, it considers whether, and, if so, to what extent traditional private law nevertheless remains and should remain applicable to their activities during the experiment. It develops three models of the relationship between regulatory sandboxes and private law – separation, substitution, and complementarity – and considers their key characteristics, manifestations, and implications in the context of European private law. The chapter reveals the tension between, on the one hand, fostering technology-enabled innovation, legal certainty, and uniformity and, on the other hand, realising interpersonal justice and individual fairness while leaving room for diversity. It also assesses each model in terms of its potential to reconcile these competing considerations and draws lessons from this assessment for EU and national legislators and courts.

The Directive 2004/25/EC on takeover bids was enacted on 21 April 2004 as a framework directive. The Member States transposed the mandatory bid rule with little variation in the definition of control, with thresholds varying narrowly in nearly all Member States, between 30 per cent and a third. Also concerning the supervisory authority and squeeze-out and sell-out rights, the transposition of the Directive had a harmonizing effect. Therefore, the occasionally encountered opinion that the Takeover Directive was a failure is plainly incorrect. However, Member States vary not only in their legislative approach concerning the offeree’s defence measures, but also in respect of derogations and deviations from the mandatory bid rule. While in the late 1990s the board neutrality rule was dominant on the continent, Germany, France and Italy altered their takeover regimes and now favour a more flexible approach. A growing number of Member States later changed their initial transposition of the Takeover Directive’s breakthrough rule. In a future reform of the Takeover Directive it should be taken into account that the markets for corporate control have changed dramatically since the 2010s.

The project of constitutional democracy and the rule of law concept served as a powerful unifying platform for political compromise during the liberal democratic transformation after 1989. Today’s challenge to the liberal rule of law calls for re-evaluating our understanding of that period. To provide a deeper historical perspective, this chapter offers a tentative historical typology of the various rule of law understandings of the period of ‘liberal consensus’. First, it outlines the historical roots of the 1989 democratic and constitutional revolutions in ECE, pointing out their major sources, namely the import of Western constitutional theory, dissident human rights activism and the mostly neglected yet critical authoritarian socialist constitutionalism. Second, the chapter analyses the politics of liberal constitutionalism, in the 1990s, from the point of view of its internal diversity, depending on the different political ideas and ideologies behind it. The variety of constitutional imagination sets the stage for the final step, which is the exploration of different rule of law conceptions, namely neoliberal, substantive, positivist and non-liberal. Although transnational in its perspective, the last section, for the sake of concision and clarity, focuses primarily on the Czech context.