On January 15th 2008, it was precisely fifty years ago that the First Senate of the Federal Constitutional Court (FCC) (Bundesverfassungsgericht) handed down its seminal decision in the Lüth case. The Lüth decision can be seen as a foundational moment for at least two transformative Post-War developments in constitutional thinking that continue to influence legal systems around the world.

The societal mega-trends of the past four decades, such as a globalizing economy and an aging society, have challenged the understanding of the state in OECD countries. The resulting “transformations of the state” are the subject of an interdisciplinary research agenda established at the Collaborative Research Center (CRC) 597 in Bremen, Germany. A total of twenty projects from political science, law, and economics explore changes of statehood which take place in two different dimensions: first, the internationalization and, second, the privatization of activities and functions which were traditionally performed by and ascribed to the democratic, constitutional and interventionist state. While the first research phase (2003-2006) aimed at founding empirical descriptions of these internationalization and privatization processes, the current phase (2007-2010) is dedicated to explaining the observed changes in statehood. Within this general framework, the authors’ research project on “New Forms of Legal Certainty in Globalized Exchange Processes” deals with changes in the institutional organization of commerce.

The Gesellschaft mit beschränkter Haftung (GmbH - Private Limited Company) is the most popular organizational form for businesses in Germany – numbering almost one million entities in 2007. The GmbH is not only popular for entrepreneurs, but also serves a role in corporate groups and can be more or less easily upgraded to an Aktiengesellschaft (AG - public corporation). Nevertheless, few changes have been made since its inception in the late 19th century, leading to complex case law that would most certainly put a smile on the face of any corporate lawyer. The Gesetz zur Modernisierung des GmbH-Rechts und zur Bekämpfung von Missbräuchen (MoMiG - Law for the Modernization of the GmbH and to Combat its Abuse), the most fundamental reform of the German GmbH, tries to replace much of that case law with statutory rules, while also eliminating certain formalities.

The current contribution will elaborate on the manner in which the Declaration of the International Labour Organization (ILO) on Fundamental Principles and Rights at Work (hereinafter the 1998 Declaration) functions as an instrument of governance for the purpose of promotion and persuasion. The purpose of this activity is to improve the observance by States of certain principles contained in the 1998 Declaration. At the outset one should stress that this governance technique is a trade mark of the ILO as a whole and not only of the 1998 Declaration. The basic premise of the ILO is to rely on cooperation and dialogue rather than sanctions in its efforts to realize its goals.

Cosmopolitan constitutionalism contends that supranational governance can achieve a democratic character. It assumes that an essential core of the concept of democracy can be disembedded from the notion and institutions of the constitutional nation state and re-planted within transnational governance systems, in the EU and beyond, even while these fail to provide for representation and accountability along traditional lines. It further asserts that social ordering deriving from transnational governance that is democratic will be legitimate.

David Currie devoted a substantial part of his scholarly work to exploring the intricacies of constitutional law, focusing intently on the United States and German constitutional orders. Along with Donald Kommers, Currie was among the first to closely examine the German constitutional system in a search for elucidation. As the quote by Thomas Mann (which he used in his seminal book, The Constitution of the Federal Republic of Germany) illustrates, if we truly want to aspire to realize our talents and ambitions, it is important to look outside national borders to see how things are done elsewhere to discover if there are ways in which we can improve. Staying within the “City upon a Hill,” as many Americans identify the United States, may lead to insularity or, even, a sense of false confidence. Which is why the task of comparative law is so important: looking outside national borders to see what other perspectives are out there, and then comparing and contrasting the foreign and domestic to learn which, upon consideration, is better or worse and for what reasons.

Markets need a complex set of institutions in order to work properly. Within a state, the national legal order with its legal rules, courts, and enforcement agencies have the task of fulfilling this role. Besides safeguarding property rights, the national legal order encompasses (1) the facilitating of market transactions by offering enabling (facilitative) law (as legal standard solutions) and helping private parties to enforce contracts within the domain of freedom of contract, and (2) the regulation of market transactions for solving or mitigating market failures problems and achieving other policy objectives. A comparable consistent legal system is missing on the international level for ensuring the working of global markets and the governance of cross-border transactions. However, the dynamic process of globalization has brought about the development of a number of new institutional solutions for solving these problems. The most prominent issue is the regulation of international markets (“global governance”). This article, however, will focus on the evolution of institutions for the enforcement of contracts for cross-border transactions between firms. Although there have always been institutional solutions for the governance of cross-border contracts (lex mercatoria), in recent years, a number of new governance solutions for the enforcement of cross-border transactions have emerged (“transnational commercial law”). The increasing use of choice of law, private governance instead of private law (provided by states), and private arbitration instead of public courts are the most important characteristics of this development. This also includes hybrids as new combinations between private and public solutions for the governance of cross-border contracts. Therefore, the process of globalization is accompanied and enabled by a complex process of institutional evolution.

The United States is a party to the Vienna Convention on Consular Relations (“the Consular Convention”). It requires in Article 36(1)(b) that the competent authorities of each State party inform the consulate of another party if the latter's national is arrested and requests that the consulate be notified. Article 36(1)(b) further requires the authorities to inform the person arrested of the right to communicate with the consulate. Article 36(2) says that the rights in Article 36(1) are to be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso “that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.”

One of the probably most groundbreaking – and at the same time also most contentious – issues of the German reform of private limited companies by the Gesetz zur Modernisierung des GmbH-Rechts und zur Bekämpfung von Missbräuchen (MoMiG – Law for the Modernization of the Private Limited Companies Act and to Combat its Abuse) is the introduction of the Unternehmergesellschaft (UG – Entrepreneurial Company). This new sub-type of the Gesellschaft mit beschränkter Haftung (GmbH – Private Limited Company) is specifically designed for entrepreneurs and has already unofficially been dubbed the “Mini-GmbH” and “GmbH light”. It can be seen as the centerpiece of the legislator's overall aim to facilitate and accelerate the formation of companies and the underlying motive of increasing the international competitiveness of the German GmbH.

The law must correspond with human nature and be based on criteria equal to all human beings. Many schools of legal philosophy agree on these points. However, many of them tend to disagree as soon as more detailed criteria for “humanity” and the “nature of man” are suggested. This is where the empirical understandings of basic needs clash with loftier concepts such as “reason” and “spirit” over what the actual indicators of humanity are. Relativistic schools point skeptically to the plurality and historicity of many legal convictions. Proceduralists look for a way out of the vagueness and controversy of appropriate indicators of humanity and human law by relying on concretization processes. Such processes are expected to exclude at least violence and in the best case include as much integration as possible of all those affected by legal provisions. This paper proposes that the most important insights into good and human law can be discovered by analyzing the character of human agency (Handeln). All life forms usually act in a functional manner, doing what is required to preserve themselves; many animals are able to learn and communicate to a certain extent. By contrast, humans not only “behave”, rather, they “act” - they sense, interpret, evaluate, articulate and decide. As trivial as that sounds, using “human action” as an indicator of what aspects a good legal system should represent is an illuminating starting point. This is especially true concerning hard cases in the law that, in spite of being typically contested, lead to legally binding decisions. They are burdened by the “anthropological cross of decision-making” or, as one could also say, the “decisional cross”. The question we will turn to is the meaning of the decisional cross.

The two reference cases considered here concern the compatibility with EU law of industrial disputes and collective actions against EU companies exercising their free movement rights. The Swedish case, under a reference of the Arbetsdomstolen (Swedish Labour Court) of 15 September 2005 in litigation between Laval un Partneri Ltd (hereafter ‘Laval’) v. Svenska Byggnadsarbetareförbundet, Avdelning 1 of the Svenska Byggnadsarbetareförbundet, Svenska Elektrikerförbundet (in the material that follows, ‘Bygnadds’) and others concerns the question of whether an industrial action of Swedish labour unions against a Latvian company that wanted to perform a work contract under Swedish procurement rules through the use of posted Latvian workers falls under the ‘freedom to provide service’ rules of Article 49 EC and, if this is the case, whether this action can be justified either under the posted workers directive, 96/71/EEC, or under a specific Swedish law exempting labour unions from liability in taking action against foreign-based companies (the so-called Lex Britannia; see sections E.I and H.II below).

The first disquisition given to the concept of the sublime, written by the anonymous Greek Pseudo-Longinus, famously mourns the passing of the pagan relationship between gods and men. In his essay on the work of Pseudo-Longinus, the French poet Michel Deguy states that “the question of the sublime was doubtless first of all an attempt to measure the decline of the Orient, to measure the author's distance from the time of gods and heroes.” For Deguy, the Longinian tradition of emphasising the sublime as a key feature of rhetoric must be regarded as an attempt to establish some hope of a truly exalted discourse at a time in which man moves further and further away from his sacred relationship to the highest of origins. Such nostalgia obviously colours every cycle of secularisation; from paganism to Christianity to modernity and beyond. If each period of secularisation generates a more worldly state of affairs, or flatter discourses, it also produces a Longinian longing for a more vertical axis to explain our mortality.

This note addresses the proscription of terrorist financing under transnational law. It considers both criminal and civil regulatory frameworks. Although the 9/11 attacks certainly galvanized jurisgeneration in this area, important treaties and customary principles preexisted those attacks. Insofar as the law on this topic is quite robust, this note does not provide a typology of every legal prohibition that touches upon terrorist financing. Instead, it offers an overview of the subject matter through case-studies drawn from international treaties and Alien Tort Claims Act litigation in the United States, and it also places the regulatory framework of terrorist financing within both lex lata and lex ferenda regarding the proscription of terrorism generally.

In this paper I will analyze the relation between the limitations on freedom of speech and the increasingly intense defense of “security” intended as a psychosomatic and material condition of well-being. I will consider, in particular, the evolution of the legal limitations on the freedom of speech, moving from the apparently new dilemma of the protection of self-preservation contrasting with the guarantee of individual liberties. I will describe the transition from an internal foundation of this kind of limitation, caused by the will to destroy the potential enemies of State power, to a new form of “thought control” existing in the international construction of general paradigms of “well-thinking”, in addition to those of a “well-doing.”

On June 30, 1980, the United States Court of Appeals for the Second Circuit issued Filártiga v. Peña-Irala. In this landmark case, the Paraguayan plaintiffs sought to hold Americo Norbeto Peña-Irala, a high-ranking Paraguayan police officer, liable for torture that led to the death of Joel Filártiga in Paraguay. They rested their main jurisdictional argument “upon the Alien Tort Statute, 28 U.S.C. § 1350, which provides: ‘The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.'” The Second Circuit held, “[D]eliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties. Thus, whenever an alleged torturer is found and served with process by an alien within our borders, § 1350 provides federal jurisdiction.” It added that “Our holding today, giving effect to a jurisdictional provision enacted by our First Congress, is a small but important step in the fulfillment of the ageless dream to free all people from brutal violence.”

Institutions can have a decisive impact on economic performance. The law is particularly important in shaping the institutional framework for economic activities. Legal rules can be viewed as socio-technological devices used to help individuals solve the coordination problems and conflicts that arise in an environment of scarce resources. In such an environment, the law affects both the allocation as well as the distribution of resources, and is itself influenced and altered by economic evolution. However, our understanding of the determinants and mechanisms of legal change from an economic perspective remains rather weak.

On 17 February 2000 the OSCE High Commissioner on National Minorities (HCNM) submitted a recommendation to the Senate of the Babes-Bolyai University (BBU) in Romania. In this recommendation he formulated inter alia: “It is important for the staff of a University to reflect the University's multi-cultural character […] Therefore, an Equal Opportunity Commission should be established within the university to encourage the hiring of minority and female staff – on the basis of academic credentials – regulate guidelines on the recruitment and promotion of staff in this context and monitor performance against clear and transparent success/failure criteria.”