Interpretation of Law in the Global World: From Particularism to a Universal Approach

Contributors

Contents

List of Abbreviations

About the Authors

Introduction Capturing the Change: Universalising Tendencies in Legal Interpretation

1 Factors Stimulating and Impeding the Adoption of a Universal Approach to Law Interpretation at a National Level

2 The Interpretation of National Law in Conformity with EU Law: A New Method of Interpretation to Serve the Effectiveness of the acquis communautaire

3 The Power of National Courts to Refuse to Apply National Provisions Contrary to EU Law. The Rise of a European Judicial Review or an Escape from the Difficult Task of Conforming Interpretation?

4 From Formal to Real Guarantees of Individual Rights: The Influence of the Case Law of the ECtHR on the Interpretation of Domestic Constitutional Provisions

5 Harmonised Rules of the International Trade and their Impact onto Legal Interpretation

6 Role of International Commercial Arbitration in the Development of a Universal Interpretative Approach

7 Legal Interpretation in a Process of Change

Legal Theory

European Law

European Criminal Law

Private Law

References

Part I Legal Theory

Chapter 1 Transformations in Law Interpretation: Towards a Universal Approach The Phenomenon, Causes and Symptoms

1 Introduction

1.1 The transitively formulated problem

1.2 Law (as text) exists only through its meaning

1.3 Ambiguity of the notion of ''law interpretation''

1.4 Confusion between the two meanings of --law interpretation-- -- as the action and the effect

1.5 The volume's thematic issue: the study of interpretation or of its results? (law contents)

1.6

2 Legal Transactions in the Process of Globalisation The Premise and Cause of the Atrophy of Particularism in the Interpretation of Law

2.1 Features of the contemporary exchange of goods and services in favour of the atrophy of particularism

2.2

2.3

2.3.1

2.3.2

2.3.3

2.4 The globalisation of exchange forces the global approach to interpretation

2.5 Imposing the features of universality on legal particularism -- arbitration at work

3 Multicentre Interpretation Market

3.1

3.2

3.3

3.4

3.5

3.6

3.6.1

3.6.2

3.7

3.8

4 Interpretative Dialogue (the Difficulties)

4.1

4.2 Interpretative dialogue -- the ECtHR

4.2.1 General principle

4.2.2

4.2.3 --Revindication-- cases connected with political transformations in new countries -- as an example of a local phenomenon of systematic importance

4.3 Interpretative dialogue -- the ECJ

4.4

5 Interpretative Dialogue The Global Approach to Interpretation Methods

5.1 The mechanism for the emergence of interpretative doubts can be depicted by the triad: to see--want--be able to

5.2

5.3

5.4

5.5 Interpretation methods -- from particularism to a global approach

5.5.1

5.5.2 Decreasing the significance of textualism (interpretation particular -- since bound to the language of the interpreted text)

5.5.3 Broadened scope of systematic interpretation

5.5.4 Observing the multicentricity of interpretation sources is tantamount to equipping the procedure of law interpretation itself in a more global form

References

Chapter 2 Discourse Ethics as a Basis of the Application of Law

1 Introduction

2 General Assumption of Discourse Ethics

3 The Concept of the Discursive Model of the Judicial Application of Law

4 Seeking the Priority Principle as a Subject of the Application of Law

5 The Judge as a Real Participant of the Communication Community

References

Chapter 3 Judicial Interpretation of Bilingual and Multilingual Laws: A European and Hong Kong Comparison

1 Introduction

2 Equal Authenticity Rule

3 Interpretation of EU Laws in the ECJ

3.1 How ECJ Approaches Divergence in Multilingual Law

3.2 Bilingual Statutory Interpretation in Hong Kong

3.4 Implications

References

Chapter 4 The European Dual Nature: Unity/Fragmentation

1 Introduction

2 Mapping the European Duality

2.1 Unity Without Uniformity and Diversity Without Fragmentation

2.2 Legal Pluralism

2.3 From Fragmentation to Unity

3 Legal Representations of Fragmentation and Unity in Europe

3.1 Same-Sex Couple and Their Rights

3.1.1 Cultural Symbolism over the Word ''Marriage''

3.1.2 The Legal Shift in Meaning of ''Marriage''

3.1.3 A Search of European Unity: A Case Study

3.2 Handicap -- Disability and the Law

3.2.1 Cultural Symbolism over the Word ''Handicap, Disability''

3.2.2 Seeking Unity Before the Law

3.2.3 Seeking European Harmonization

4 Transnational or Cross-Boundary Harmonization within the EU

References

Part II European Law

Chapter 5 The Universalisation of Legal Interpretation

1 Introductory Remarks

2 Light and Shade of the Universal Standard

3 The Role of the Judiciary in the Universalisation of the Interpretive Standard

4 New Instruments of Legal Interpretation: Pretence or Reality? An Attempt of Exemplification

5 The Real (Genuine) Influence on the Interpretation of Law

6 Complementary Influence on the Interpretation of Law

7 Illusory/Decorative Influence of Supranational Interpretation

8 Conclusion

References

Chapter 6 The Power of National Courts in Interpreting Domestic and EU Law: The Indeterminacy of Choice

1 Introduction

2 Europeanization of the Universal

2.1 Looking for the Unicorn: Universalism and Particularism

2.2 Multiculturalism as an Alternative

2.3 An Evolving Universal

3 Judges as Social Engineers

3.1 Lost Formalism

3.2 A Synthesis of Theories of Judicial Reasoning

4 Conclusions

References

Chapter 7 Implementation of European Regulation of the Financial Sector: Consequences for the Consumer Protection

1 Introduction

2 The Regulation of the Financial Sector

2.1 Initiation by EU

2.2 The Implementation of EU Directives

2.3 The Danish Systematic

3 Presentation of MiFID

4 Presentation of the Consumer Credit Directive

5 MiFIDs Investor Protection Rules

5.1 Conduct of Business Obligations

5.2 Best Execution

5.3 Client Order Handling

5.4 Increased Investor Protection

6 The Consumer Credit Directive

6.1 Obligation to Convey Information

6.2 Other Consumer Protection Rules

6.2.1 Assessment of Creditworthiness

6.2.2 Right of Withdrawal

6.2.3 Credit Intermediaries

6.3 Increased Consumer Protection

7 The Significance of the Way of Implementation

7.1 Possible Sanctions

7.2 Application of Law and Enforcement of Law

7.2.1 MiFID

7.2.2 The Consumer Credit Directive

8 Summary

References

Chapter 8 Joint Competence of the EC and Its Member States as a Source of Divergent Interpretations of the TRIPS Agreement at Community and National Levels

1 Introduction

2 The TRIPS Agreement as a Source of International and Community Law

3 Interpretation of the TRIPS in the ECJ Jurisprudence

4 The Principle of Consistent Interpretation as a Tool Mitigating Against Divergent Interpretations of the TRIPS Agreement

5 Interpretation of the TRIPS Agreement in the Jurisprudence of Polish Courts

6 Conclusion

References

Chapter 9 Some Idealism About Realism. Judging Under Certainty and the Standardization of Adjudication in the EC Law

1 The Problem

2 Standardization vs. Harmonization

3 Liability for Judicial Error as an Instrument of Standardization of Application of the EC Law: The Positive Analysis

4 Liability for Judicial Error as an Instrument of Standardization of Application of EC Law: Normative Analysis

5 Conclusion

References

Part III European Criminal Law

Chapter 10 Pro-European Interpretation of Criminal Law Vis--vis the Constitutional Standards of the European Union Member States

1 Introduction

2 The Mutual Relationship Between Community Law and Constitutional Law

2.1 Jurisprudence of the Court of Justice of the European Union

2.2 Statements Made by the Authorities Appointed to Review the Constitutionality of Law in EU Member States

3 Mutual Relationship Between the Third Pillar European Law and the Constitutions

3.1 Judgements of the Court of Justice of the European Union

3.2 The Attitude of the Authorities Set Up to Control the Constitutionality of the Law in Member States of the European Union: Particular Importance on the Issue of the Constitutionality of the Provisions on the European Arrest Warrant

3.2.1 Framework Decision on the European Arrest Warrant and a Conflict Between European Law and the Constitutional Provisions of Member States

3.2.2 The Constitutional Guarantee Prohibiting the Surrender of Nationals and the Pro-European Teleological Interpretation

3.2.3 The Third Pillar Law in the System of the Sources of Internal Law

3.2.4 The Constitutional Principle of Subordination to International Commitments and the Pro-European Interpretation

3.2.5 The Constitutional Principles of a Democratic State Ruled by Law and Proportionality as a Limit to Pro-European Interpretation

4 Conclusions

References

Chapter 11 Linguistic Pluralism and Interpretation of European Law in the Third Pillar, Discussed with Reference to the Example of Article 54 of the Convention Implementing the Schengen Agreement

1 Introduction

2 The Difficulties Posed by Article 54 of the Schengen Convention

2.1 Authentic Versions of Schengen Convention

2.2 Various Language Versions of Article 54

2.3 Multiplicity of Language Versions

2.4 Systemic Interpretation

2.5 Teleological Interpretation

2.5.1 Double Purpose of the ne bis in idem Prohibition

2.5.2 The Criterion of Objective

2.6 Article 54 in the Jurisprudence of the ECJ

2.6.1 Meaning of ''Judged/Adjudicated/Finally Disposed of''''

2.6.2 Meaning of ''Act''

3 Conclusions

References

Chapter 12 Introducing Hermeneutic Methods in Criminal Law Interpretation in Europe

1 Specificity of Interpretation to Criminal Law

1.1 General Views

1.2 Principle of Legality

1.3 Rule of Lenity

1.4 Principle of Strict Construction of Criminal Law

1.5 Common European Legal Culture and Criminal Law

2 Seeking the Only Appropriate Interpretation of Criminal Law Statutes

2.1 Hermeneutics as the ''Third Way'' of Interpretation

2.2 Origin and Evolution of Hermeneutics

3 Hermeneutic Theses

3.1 Contextualization

3.2 Canon of Text Objectivity

3.3 Fore-Understanding and Prejudices

3.4 Hermeneutic Circle

12.4 Summary

References

Part IV Private Law

Chapter 13 Fifty Years in Five? The Brazilian Approach to the New York Convention

1 Introduction

2 Overcoming the Traditional Resistance in Bringing the New York Convention into Force: Task Accomplished?

3 The Current Judicial Approach to the Recognition and Enforcement of Foreign Awards

3.1 The Basic Framework

3.2 The Public Policy Exception to Enforcement

3.3 Written Form of the Arbitration Agreement

4 Real Adoption of the New York Convention: A Step Forward

5 Conclusion

References

Chapter 14 Explaining Transnational Rules: Discourses and Material Conditions When Implementing the Swedish Corporate Code of Conduct

1 Introduction

2 Frame of Reference

2.1 Putting the Corporate Governance Regulation on the Agenda

2.2 Putting a Code of Corporate Governance on the Agenda

2.3 Finding Problems and Problem-Solution Models

2.4 Summarizing the Framework

3 The Perceived Problem of Ownership Change in Sweden

3.1 Regulators' Perceptions of the Ownership of the Public Swedish Firms

3.2 Foreign Ownership of Swedish Public Firms

3.3 Institutional Ownership of Public Swedish Firms

3.4 Ownership of the Swedish Public Firms

4 The Solution of a Swedish Corporate Governance Code

5 Discussion and Conclusion

References

Chapter 15 The Translation of Transplanted Rules: The Case of the Swedish Nomination Committee

1 Background

2 International Corporate Governance in Local Practice: Transplants and Translations

2.1 Transplants and Those Transplanting

2.2 Those Transplanting Are Also Translators

3 Research Design

4 The Case: The Convergence of Swedish Board Nomination

4.1 The Traditional Swedish Corporate Governance System and the Board Nomination Issue

4.2 Swedish Regulatory Development for the Nomination Committee

4.3 Firm Actions in Face of International Capital Market Pressure

4.3.1 The 1998 Firm Survey

4.3.2 The 2000 Firm Survey

4.3.3 The 2002 Survey

4.3.4 The 2004 Firm Survey

5 Discussion: Divergences in a Convergent Process

6 Conclusions: Transplant and Translate: A Double-Edged Sword

References

Chapter 16 Transnational Law, Between Ius Mercatorum and Ius Civile

1 Introduction

2 Theoretical and Historical Framework

2.1 Ius Civile

2.2 Ius Mercatorum

2.3 The ''Civilization'' of Commercial Law

2.4 ''Commercialization'' of Civil Law

3 Case Law

3.1 Case 1: ABN Amro Bank v. Guerrero S.A.

3.1.1 The Case

3.1.2 Analysis

3.2 Case 2: Banco Velox v. Banco Sudecor Litoral

3.2.1 The Case

3.2.2 Analysis

3.3 Case 3. SGZ v. Productos e Insumos de Fitennes S.A.

3.3.1 The Case

3.3.2 Analysis

3.4 Case 4: Global Packaging Solutions S.A. v. Banco de Galicia y Buenos Aires S.A.

3.4.1 The Case

3.4.2 Analysis

4 Conclusion

References