Spring 2016 - Elective Courses
Comparative Constitutional Law
James Grant, Dickson Poon School of Law, King's
This course explores the rich diversity of constitutional law, ideas and practices across a range of jurisdictions. The renaissance in the comparative study of constitutions in recent decades, which has given rise to a wealth of scholarship in the field, has been driven partly by the constitution building in Central and Eastern Europe following the breakdown of the Soviet Union and the rapid global spread of constitutionalism and judicial review. After exploring some methodological problems associated with constitutional transplants and the migration of constitutional ideas, this course will consider a selection of problems of constitutional design and constitutional adjudication in leading and emerging constitutional systems around the world. For example, the course will consider different approaches to the processes of constitution-making and constitutional change;federalism, devolution, and secession;constitutional judicial review and the rise of 'juristocracy';judicial review of administrative action;the protection of human rights and the proportionality doctrine;and the constitutional responses to national security threats and the use of emergency powers. Through the comparative study of these themes, we will aim to better understand and critically evaluate a range of controversial constitutional principles and structures.
2 Credits. Evaluation: Class Participation (20%), Take-home Exam (8 hours) (80%).
Comparative Corporate Governance
Gregor Bachmann, Free University of Berlin
This course will deal with central problems of corporate law from a functional and comparative perspective. We will start off with analyzing basic features and forms of corporations and modes of legal regulation. We will then move on to special fields of corporate law and address standard problems such as limited liability ("piercing the corporate veil"), manager liability, shareholder voting etc. Some areas of securities law / capital market law will also be covered, i.e. public tender offers (take-over law) and insider dealing. The course will use excerpts from text books as well as real cases and hypotheticals. We will discuss how each problem could be solved from a theoretical point of view and then see how different legal systems try to tackle it. A focus will be on the legal systems of the US, the UK and continental Europe, with an emphasis on Germany.
Prior attendance of a class on corporations is not required. In addition to material provided online, we will use a case book that participants should buy.
The course is correlated to the course "European Company Law". Students with a strong interest in Corporate Law may wish to sign up for both classes. However, it is also possible to register for only one of them.
2 credits. Evaluation: Class participation (20%), Take-home exam (2,500 words, 8 hours) (80%).
European Company Law
Gregor Bachmann, Free University of Berlin
This class deals with the law of corporations as set out by the European Union (EU). Although each member state of the EU (England, France, Germany etc.) has its own corporate law, some standards (i.e. those on capital requirements for public corporations) have been harmonized on a European level, and are thus subject to final interpretation by the European Court of Justice (ECJ). Moreover, the so-called basic freedoms of the EU-Treaty prevent EU-member states from enacting laws that might hinder national corporations from being acquired by a foreign bidder or to transfer their seat across borders. We will analyze and discuss prominent ECJ-decisions that deal with those issues. We will also have a look at supranational legal forms, such as the Societas Europaea (SE), and will study attempts on behalf of the EU to create uniform rules for trading on European stock exchanges.
For those students not familiar with corporate law and/or the law of the European Union, the class will start with an introduction into both areas of law.
The course is correlated to the course "Comparative Corporate Governance". Students with a strong interest in Corporate Law may wish to sign up for both classes. It is of course possible to register for only one of them.
2 credits. Evaluation: Class Participation (20%), 2-hour In-class Exam (open book, no internet, 80%).
International Investment Law
Costamagna, University of Torino
Jürgen Kurtz, University of Melbourne
International investment law regulates the entry and operation of foreign investment.It is one of the fastest growing fields of public international law and impacts on a range of vital sovereign functions including state laws passed to protect public health, the environment and human rights.The course is organized in three parts.Firstly, we will examine the historical evolution that has characterized the international investment law regime since its inception.In particular, we will explore the political, economic and sociological imperatives that have led to a plurality of (sometimes conflicting) sources including customary international law as well as key bilateral, regional, and multilateral investment treaties. Secondly, we will assess the content of international investment agreements which typically provide protections for foreign investment such as guarantees of non-discrimination, fair and equitable treatment, and compensation in the event of (direct and indirect) expropriation.Lastly, we turn to the unique system of dispute resolution that characterises this field which gives private (foreign) actors the right to pursue claims for damages against states.We will explore this model of investor-state arbitration against current controversies surrounding the impact of the system on regulatory autonomy, development strategies and the human rights of citizens in host states.This in turn allows us to identify and evaluate future systemic reform possibilities, including excluding the mechanism altogether from international investment agreements or transition towards court-like structures.
3 Credits. Evaluation:Class Participation (20%); Reaction Paper (20%); Final Take-home Exam (60%).
National and Transnational Remedies for Violations of Human Rights
Kent Roach, University of Toronto
This course will examine remedies available for the violations of human rights in a number of domestic and supra national legal systems. Topics to be examined include the American experience with complex relief in school desegregation and prison reform cases, declarations of incompatibility under the UK's Human Rights Act, 1998, the award of suspended declarations of invalidity in Canada and South Africa, remedies with respect to health care, remedies with respect to police behaviour and the award of just satisfaction damage awards and the pilot judgment procedure of the European Court of Human Rights. Transnational issues will be examined in the context of how various courts provide indirect remedies for human rights violations primarily caused by other states with specific attention to violation of rights in the national security context including those arising from military detention at Guantanamo Bay and listing as a terrorist.The course will also explore whether there is or should be a difference between the remedial process employed in domestic and supra-national law.
3 Credits. Evaluation: Class Participation (25% including reaction paper to readers), Research Paper (4,000 words) 75%.
Social Rights in Crisis: The IMF, the EU and Economic Conditionality
Francesco Costamagna, University of Torino
The (often severe) reduction of social spending has represented a common feature of many anti-crisis programs adopted by several States over the last decades.In many cases this move has been advocated, or even imposed, as a condition to obtain financial assistance by the IMF or, at the European level, by the several mechanisms established to support EU Member States in distress.
The course focuses on economic conditionality and its impact on social rights, by taking into account, in particular, the practice of the IMF and the situation in the EU after the crisis.
The first part of the course deals with the legal features of conditionality in IMF-supported programs. In particular, it aims to discuss the legal value of the instruments that are used to design, implement and monitor these programs. The analysis is conducted by taking into consideration the evolution that characterized the legal framework and the practice, examining, in particular, the role that social rights' considerations have plays therein.
The second part of the course looks at the EU and, in particular, to the role of conditionality in the context of financial assistance programs devised to support Member States that had been hard hit by the crisis. This part start from discussing the new Article 136 TFEU, which contains an explicit reference to "strict conditionality" as a requirement to grant financial assistance to Euro States in difficulty. Subsequently, it takes into consideration the rules governing the design, implementation and monitoring of conditions attached to financial assistance packages, as well as the role of the various actors involved in the process.
The third part of the course discusses the impact of economic conditionality on social rights and the existence of redress mechanisms at the international, supranational and national level. In particular, the focus will be on the role that judicial or quasi-judicial bodies can play in protecting these rights in times of crisis. This part of the course will be conducted by analyzing some cases concerning austerity measures that have been brought in front of international, supranational or national adjudicatory bodies.
2 Credits. Evaluation: Class Participation (30%); Research Paper (4,000 words) (70%) .
For 1 extra credit, up to six students who need to fulfill a graduation requirement at their home university may write a major research paper. To obtain the extra credit, the student must (a) turn in a written outline of the paper for faculty comment relatively early in the semester, (b) turn in a complete first draft for faculty comment two-thirds of the way through the semester, and (c) write a paper of 6,000 words, not including footnotes.
Please note that this course has been approved as a WR course for Georgetown students.
The International Law of Poverty
Krista Nadakavukaren Schefer, University of Basel
This course aims to give students a broad understanding of an area of international law that does not quite exist yet –the international law of poverty. With poverty at the top of the global policy agenda, the questions of what laws exist to challenge the conditions in which the world's poor live can no longer be ignored. Traditional international law, however, has to be considered creatively to really find a "law of poverty". Taking a creative approach is therefore what we will be attempting in class.
The course will look at the norms and rules of international law that particularly focus on the poor. We will start at the beginning by asking what "poverty" is and what it means to live in poverty. Then we turn to the law of development, investigating the content of the right to development and how poverty figures in the law of trade, investment, and international financing efforts. The human rights addressing the consequences of poverty form the next section of classes. We finish with a discussion of a legal framework that stands as an alternative to human rights –that of vulnerability and the rights and duties associated with it.
2 Credits. Evaluation: Active and engaged discussion of texts and cases (25%), Research Paper (4,000 words) (75%)
For 1 extra credit, up to five students who need to fulfill a graduation requirement at their home university may write a major research paper. To obtain the extra credit, the student must (a) turn in a written outline of the paper for faculty comment relatively early in the semester, (b) turn in a complete first draft for faculty comment two-thirds of the way through the semester, and (c) write a paper of 6,000 words, not including footnotes.
Please note that this course has been approved as a WR course for Georgetown students.
Marjolaine Viret, University of Neuchâtel
Organised sport is of such social and commercial importance in today's societies that it can no longer operate as a "gentlemen's game". Beyond the inflation of sports regulations adopted by major sports organisations to regulate all aspects of events under their jurisdiction, increasing interventions are noticeable on the part of national legislatures or even the international community of nation states. Legal components have become so fundamental to the sports sector that the last decades have seen the gradual emergence of a field referred to as "sports law" by practitioners.
Doping in sport is probably the most emblematic domain of the tensions between sports regulations adopted by international sports governing bodies on the one hand, and the requirements of national laws on the other hand. It is also the one in which harmonisation efforts have been most perceivable and most consistently pursued. These efforts culminated in the adoption of the World Anti-Doping Code, a set of model rules intended for implementation across all sports worldwide, supported by a specific UNESCO Convention. The World Anti-Doping Code has been revised twice, and the latest revision became effective on 1st January 2015.
The course will give students a practice-oriented introduction to the key features of anti-doping regulation in an international context. It will lead the course participants through all major aspects of the World Anti-Doping Code regime, from whereabouts and testing requirements imposed on athletes, to the sanctioning regime and legal avenues against disciplinary decisions. The course will also give an insight into innovations such as the Athlete Biological Passport or reinforced focus on intelligence-gathering and investigations. Beyond a presentation of the current regime, the course will also encourage debate around legal and ethical questions, as well as strategic challenges that the anti-doping movement will need to face in years to come.
Working materials will thus combine case studies based on decisions rendered in international doping disputes by the Court of Arbitration for Sport, and more reflective analyses on the underlying stakes of the fight against doping. The goal is to explore with the participants how doping represents a transnational phenomenon that needs to cope with the variety of legal systems, but also an area of regulation that lies at the crossroads of various disciplines, which necessitates taking into account scientific, sociological and political determinants.
2 Credits. Evaluation: Class Participation (20%); 2-hour In-class Exam (open book, no internet, 80%).