Articles scientifiques

Supping with the Devil? Indicators and the rise of managerial rationality in law

D. RESTREPO AMARILES

International Journal of Law in Context

A paraître

Départements : Droit et fiscalité


Managerial devices are rapidly developing as a means for driving the legal performance of organisations, including those of states and corporations. This paper explores the managerial rationality underpinning global legal indicators, and the constraints they convey on institutional behaviour. In particular, it argues that indicators are better understood as part of a system of management control and distributed governance, which is steadily eroding state-centred forms of authority, including state law. In this context, legitimacy and reactivity are contingent to their cycle of production and implementation, which is fourfold: data-collecting, benchmarking, auditing and allocating incentives. Each process is meant to generate respectively subjectification, self-knowledge by comparison, accountability and stimulus for action. Indicators with higher degrees of legitimacy become entrenched in institutional practices and legal decision-making processes. The paper concludes that regulatory spaces where indicators unfold need critical and political scrutiny to expose their pernicious effects, undesirable uses and inevitable misuses

The Impact of the French Doctrine of ‘Significant Imbalance’ on International Business Transactions

D. RESTREPO AMARILES, E. M. BASSILANA, M. M. WINKLER

Journal of Business Law

A paraître

Départements : Droit et fiscalité, GREGHEC (CNRS)


The Petrilli cases - A new approach of the EU courts in damages claims ?

A. VAN WAEYENBERGE

European Public Law

A paraître

Départements : Droit et fiscalité, GREGHEC (CNRS)


Fair and Equitable Treatment in Investor-State Dispute Settlement: A New Interpretative Framework

D. RESTREPO AMARILES, A. VAN WAEYENBERGE

Journal of Business Law

2017, vol. 8, pp.632-650

Départements : Droit et fiscalité, GREGHEC (CNRS)


The fair and equitable treatment (FET) standard has become the cornerstone of investor-state dispute settlement, and one of the most disputed notions in international business law. With investors facing increasing uncertainty, and states moving closer to denouncing treaties they see as limiting their sovereign right to regulate, FET has come to pose a significant risk to the entire investor-state dispute resolution system. This paper outlines an alternative way to consider FET, by acknowledging its thick and indeterminate character as a legal standard. It argues that previous traditional taxonomies have inherent limitations, and that practitioners should instead seek to understand the FET standard through the lens of the rule of law. The paper offers an analysis of the jurisprudence of the International Centre for the Settlement of Investment Disputes (ICSID) to show that three principles of the rule of law – due process, legal certainty, and the prohibition of arbitrariness – constitute an operational and certain, yet flexible framework of interpretation for the application of the FET standard

France’s Commercial courts: a good example of the administration of justice by ordinary citizens

N. STOLOWY, M. BROCHIER

Journal of Business Law

2017, vol. 1, pp.1-22

Départements : Droit et fiscalité, GREGHEC (CNRS)

Mots clés : Accessto justice; Commercial law; Courts' powers and duties;France; Judges; Legal history

https://1.next.westlaw.com/Document/I23461760B0A411E6B1DFACFF35803E0B/View/FullText.html?navigationPath=Search%2Fv1%2Fresults%2Fnavigation%2Fi0ad6ad3b0000015fc9730919545f7414%3FNav%3DINTERNATIONAL-ANALYTICAL%26fragmentIdentifier%3DI23461760B0A411E6B1DFACF


Commercial courts occupy a highly specific position in the French judiciary landscape, since their judges are elected.French commercial court judges are not members of the legal professions but business executives and tradespeoplechosen by their peers. This encourages a pragmatic view that takes into account the economic constraints faced by companies. InFrance, certain courts of first instance,such asthe commercial courts, delegate the function of judgment to ordinary citizens, whereas in most courts of first instance, and the appeal courts Cour d’appel and Cour de cassation, only full-time professional magistrates can rule on the cases brought before the court

Contacts  

Département Droit et Fiscalité

Campus HEC Paris
1, rue de la Libération
78351 Jouy-en-Josas cedex
France

Faculté  

Michael LOY

Droit et Fiscalité

Voir le CV

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