The thesis that, after September 11, 2001, there were categorical differences between Europe and the U.S. in their approaches to the dangers of terrorism, rests essentially on the claim that “Old Europe's” constitutional pacifism has failed. In this view, the global pax americana has a Hobbesian commitment to military power, and this is said to be the form adequate to realize the universal concept of peace. In principle, this is not an especially original notion. Robert Kagan, who nevertheless helped it gain a certain prominence, is merely the intellectual beneficiary of a series of classical theorists of realpolitik who agreed that conflicts could, “at the end of the day,” only be settled politically and not legally. Ironically, the prophets of this thesis were confessed Old Europeans. Carl Schmitt as well as Hans Morgenthau laid the cornerstone of these forms of cosmography, insisting that, on a global level, it is not law that rules but the free interplay of state-forces.

The following essay has been written by team members of Johann Wolfgang Goethe University (Frankfurt/ Main, Germany) who participated in the 12th Vis Moot. Its purpose is to raise interest in the moot by means of combining a general descriptive overview with personal experiences.

On 1 March 2005, the European Court of Justice (hereinafter ‘ECJ’ or ‘the Court’) got another opportunity to rule on the effect of recommendations and decisions of the WTO Dispute Settlement Body (hereinafter ‘DSB’) in the Community legal order. The ECJ concluded that an individual does not have the right to challenge, before a national court, the incompatibility of Community measures with WTO rules, even if the DSB had previously declared the Community legislation to be incompatible with those rules.

“Our Constitution … is called democracy because power is in the hands not of a minority but of the greatest number.” This statement by Thukydides preceded the preamble of the draft constitutional treaty elaborated by the European Convention. Although not adopted by the intergovernmental conference, the proposed introduction illustrates that the Convention intended to attribute a central role to the concept of democracy – at least symbolically.

Derrida's death caused a surprising reaction in the media, being responsible for a great number of articles, commentaries and announcements. It seems that now, with his death, one of his inventions – the most famous and misinterpreted one which is widely used to define his philosophical style and which is known as “deconstruction” – has finally been understood. Fortunately, in the most respected newspapers in Brasil, articles with a good survey of Derrida's work were published not only by journalists but also by literary critics, economists, lawyers and psychoanalists. But, unfortunately, the philosophers, or the ones that call themselves philosophers, seem to have insisted on ignoring the fertility of his thoughts.

Just one year after Polish accession to the European Union, the Polish Constitutional Tribunal was provided the opportunity to clarify its position regarding the supremacy of EC and EU law. In its two recent judgments, it joined the long tradition of a rather uneasy relationship between national Constitutional Courts and European Court of Justice (ECJ). The uneasiness of this relationship results from an ever-unsolved dilemma – which of the two judicial fora should have the last word in case of conflict between European norms and national constitution norms? The solution given by European Court of Justice in a series of early judgments seems obvious. It opted for an absolute supremacy of EC norms over national norms. On the other hand, the national Constitutional Courts usually accept the supremacy of EC law - but only as a consequence of transfer of some competences under strict conditions set by national constitutions. They thus accept the concept named by Neil Walker “constitutional pluralism”, meaning that the states are no longer the sole source of constitutional authority. However, national constitutions are still the “primary” source of any such authority.

The recent European Society of International Law Research Forum – only the Society's second conference following the inaugural event in Florence last year – took place from the 24-26th May 2005 in stunning surroundings on the shores of Lac Lemain in the buildings of the Graduate Institute of International Studies in Geneva. Quite apart from the obvious importance of a high-level international conference under the auspices of one of the most important international law societies in the world, and the attendant quality of the speakers and other participants, the event was of real significance in that it allowed for an insight into how the new Society itself is developing, and the manner in which it will go about the task of fulfilling the objectives that it has set itself.

A sense of cohesion grounded in a common identity is widely believed to be a prerequisite for a functioning democratic European polity. If the European Union is to master successfully the tasks assigned to it in the Constitutional Treaty and, using a non-consensual procedure, decide on policies that concern the security of its citizens or have significant distributive effects, then a sufficiently thick common identity is believed to be necessary both to legitimate and to ensure the functioning of the polity in the long term. There is little doubt that such an identity is currently missing. The question is what such an identity should be and whether the prepolitical pre-requisites for the development of such an identity exist. Are there historical experiences and accomplishments that enable European citizens to understand themselves as having suffered a common past and which animate them to see themselves engaged in the construction of a common political future? What are the appropriate narratives around which a European identity could, over time, develop? What should the focus of a self-conscious politics of memory be? What are the implications for the role and structure of European historiography, in particular for the European legal and political historiography?

One has never experienced the initial words of “The Ends of Man” spoken so seriously as at the recent colloquium held in Rio de Janeiro, between August 16-18, 2004. The international colloquium “Towards a Reflection on Deconstruction: Issues of Politics, Ethics and Aesthetics” opened with a lecture by Jacques Derrida entitled “Forgiveness, Truth, Reconciliation: What Gender?” It seems to echo incessantly the sentence of the philosopher who claimed in his own Margins of Philosophy: “every and any philosophical colloquium necessarily has a political sense.”

On 30 June 2005, the Grand Chamber of the European Court of Human Rights (ECHR) issued a judgment concerning the expropriation of the heirs of new farmers in the former German Democratic Republic (GDR). With this decision, the Grand Chamber overturned a unanimous judgment by the Chamber of 22 January 2004. This article outlines the facts of the case (section A), the German case law (section B) and the Chamber and Grand Chamber judgments (section C) and provides an evaluation of the judgments (section D).

Contributions dealing with the European constitution have abounded over the last few years. Now that the amended Draft of the Constitutional Treaty has been adopted by the European Council, they are likely to burgeon even more. For scholars working in the field, this creates a paradoxical situation. Why write another piece on Europe's constitutionalization — even if it be with the unmovable confidence that it is necessary to rescue the existing debate from impending debilitation? Under current circumstances, any paper on the issue is doomed to be buried among countless other like-minded interventions.

It has long been disputed whether a consumer under the Distance Selling Directive has the right to revoke a contract concluded as the result of an Internet auction. There is no doubt that contracts concluded by means of electronic trading platforms are to be qualified as distance selling contracts if there is a business-to-consumer-situation. Hence, at first glance, contracts entered into in the course of an Internet auction should be treated in the same manner so that consumers may exercise their right to revoke the contract. On the other hand, a right to revocation would hamper significantly an Internet auction because this form of trading depends on its character as a game and, thus, on the finality of the resulting contracts. If buyers are enabled to revoke their contracts after the end of an auction there would be no risk for a buyer in making the highest possible bid, thus rendering the auction a farce.