What the TTIP leaks mean for the on-going negotiations and future agreement?: Time to overcome TTIP's many informational asymmetries


European Journal of Risk Regulation

2016, vol. 7, n°2, pp.237 - 241

Départements : Droit et fiscalité, GREGHEC (CNRS)

Mots clés : TTIP, international trade, FTA, EU, US, regulatory convergence, regulatory coherence, mutual recognition, equivalence, regulatory compatibility, risk regulation

One of the major merits of the TTIP leaks has been to highlight the underlying information asymmetry characterising the on-going TTIP negotiations. By systematically releasing its position papers before each negotiation, the EU actual disclosure policy contributes to a permanent yet overlooked information imbalance between the EU and its trading partner(s). The ensuing asymmetry does not only alter the overall negotiating environment, but also how the media, academics, and, in turn, the public actually perceive it. Moreover, it generates many other information asymmetries within the EU itself: that between the negotiators and the elected representatives, that between corporate and civil society interest groups, and eventually between the ‘TTIP circus’ and the general public. If the negotiators themselves have hijacked the rhetoric of fact-checking, academics have not yet had their chance to contribute to the discussion. As a result, only the EU positions have been studied, criticized and closely debated, with the US negotiating positions remaining largely a mystery. After briefly presenting the how’s of the TTIP leaks, this opening piece examines the what’s and why’s behind this unprecedented revelation of negotiating texts. It is against this backdrop that the other contributors to this symposium explore which are the most immediate consequences of the TTIP leaks on the on-going negotiations and future agreement.

While Legislature Is Paralyzed over Stepparent Adoption, Italian Courts Uphold Same-Sex Adoptions Performed Abroad


Lesbian/Gay Law Notes

janvier 2016, pp.14-15

Départements : Droit et fiscalité, GREGHEC (CNRS)

On December 23, 2015, the Court of Appeals of Rome affirmed the ruling rendered on July 30, 2014, by the Juvenile Tribunal (Tribunale per i Minorenni) of Rome that recognized a female partner of the biological mother of a child as entitled to stepparent adoption of the same child (the first instance ruling is described in 2014 Lesbian & Gay Law Notes 425 (2012)). The judgment confirms the great strides made by Italian courts in the recognition and protection of same-sex families in a context where legislation is still missing (see Eur. Ct. Hum Rgts, Case of Oliari v. Italy, Apps. Nos. 18766/11 and 36030/11, July 21, 2015). In the matter of X (Foreign Same-Sex Stepparent Adoption).After Greece enacted a law on same-sex civil unions on Dec. 23, 2015, Italy remains the only one among Western Europe countries lacking any regulation of same-sex couples (as well as of other major sexual orientation-related subjects like criminal provisions regarding hate speech and hate crimes). A bill providing for civil unions allegedly inspired by the German model (No. S-2081) is dormant in the Senate since March 2013 and will be presumably discussed, if the schedule is respected, at the end of January 2016. The bill originated from the left-wing ranks of the Democratic Party (Partito Democratico, PD), but encountered strong opposition from both the center-right parties and the Catholic faction of PD. Throughout the discussions that preceded the bill’s official presentation in the Senate in October 2015, opponents filed more than 4,200 amendments, most of them obstructionist in nature and therefore completely useless, with no other purpose than that of delaying and ultimately sacking the bill. Strong opposition comes from the Catholic Church as well, which on multiple occasions has threatened “barricades” and popular uprising against the bill if passed

C’era una Volta Kiobel: I Giudici Americani Tornano a Pronunciarsi sull’Extraterritorialità dell’Alien Tort Statute [Once Upon a Time, It Was Kiobel: American Courts Come Back to the Extraterritorialità of the Alien Tort Statute]


Diritto del Commercio Internazionale

2015, vol. 29, n°3, pp.885-906

Départements : Droit et fiscalité, GREGHEC (CNRS)

L’Alien Tort Statute, che conferisce alle corti federali giurisdizione in materiadi azioni di risarcimento dei danni promosse da stranieri per violazioni del dirittointernazionale, non può essere applicato extraterritorialmente neppure ove lasocietà convenuta abbia la propria sede negli Stati Uniti e la condotta contestatasi sia qui realizzata, in quanto tali circostanze non sono suf¿cienti per superare la presunzione di non-extraterritorialità che grava su ogni legge del Congresso

Effects of the Open Method of Coordination (OMC) in Research and Innovation: Indirect Legislation in EU Policy-Making?


Journal of Legal Pluralism and Unofficial Law

2015, vol. 47, n°1, pp.22-38

Départements : Droit et fiscalité, GREGHEC (CNRS)

Mots clés : legal philosophy, European union, Jeremy Bentham, indirect legislation, pragmatic approach, research and innovation

This study offers new insights on the open method of coordination (OMC) of the European Union (EU) by focusing on the effects of this new method for producing EU regulation. The starting points here are that the OMC is not a radically new method of governance, and that it must be seen as an application of the theory of indirect legislation – as developed by Bentham. With the concept of indirect legislation, Bentham thinks a system of governing individuals that does not rest only on the fear of legal punishment, but is backed by the prospect of rewards and the fear of public censure. For the purpose of the comparison between the OMC and indirect legislation, the latter is considered as a system of social control, which – whether it be categorised as legal or not – is first and foremost normative and has effects, i.e. is applied, followed and enforced in a given community without resorting to the binding force of the law. Thanks to the input of indirect legislation, this study aims to understand what have been the real effects of the OMC and more particularly of the OMC applied to the research and innovation policy in Belgium

Global Shipping Alliances: What Prospects After the Rejection of the P3 Project by China's Competition Authority


The Journal of International Maritime Law

2015, vol. 21, n°3, pp.203-215

Départements : Droit et fiscalité

How Much Better is Better Regulation?


European Journal of Risk Regulation

2015, vol. 3

Départements : Droit et fiscalité, GREGHEC (CNRS)

How Much Better Is Better Regulation? Assessing the Impact of the Better Regulation Package on the European Union – A Research Agenda


European Journal of Risk Regulation

2015, vol. 6, n°3, pp.344-356

Départements : Droit et fiscalité, GREGHEC (CNRS)

Emboldened by the Spitzenkandidaten process, the new European Commission emerges as the most political yet. The Commission asks EU citizens to judge its operation by its ability ‘to deliver solutions to the big issues that cannot be addressed by the Member States alone’. The Better Regulation Package translates this political commitment into an actionable approach assuring EU citizens that the Commission will remain ‘big on big things, small on small things’. To deliver on this promise, the Commission extends the Impact Assessment system, renews its consultation procedures and adds a few institutional mechanisms so as to enhance its ‘ability to deliver’ throughout the policy cycle. But in order to do so the Commission needs to bind – and somehow control – the European Parliament and the Council, on the one hand, and the Member States, on the other, in relation to their commitment to openness, participation and evidence-based policymaking. While legitimate, this attempt raises serious doubts about the compatibility of this reform with the principle of separation of powers and, in particular, that of institutional balance. A closer look at the Better Regulation Package reveals an entirely new understanding of the Commission’s own prerogatives and the way it intends to exercise its legislative and regulatory powers. And this in spite of the apparent continuity between the new and old Better Regulation initiatives and the instruments it had chosen to attain the declared objectives. With a view to lay out a future research agenda on EU Better Regulation, this article identifies the most immediate questions raised by the publication of the Package and makes a first timid attempt at addressing some of them. It aims at determining how much better, if any, is the new Better Regulation Package. It does so by discussing, first, the major novelties enacted by the Commission within its own Better Regulation system and, second, those proposed in the framework of the Interinstitutional Agreement on Better Regulation

La protection juridictionnelle effective en Europe ou l’histoire d’une procession d’Echternach


Cahiers de Droit Européen

2015, vol. 51, n°1, pp.113-150

Départements : Droit et fiscalité, GREGHEC (CNRS)

La transformation de la méthode communautaire, quels impacts pour la procédure?


Revue Internationale de Droit Economique (RIDE)

2015, vol. 4, n°XXIX, pp.417-428

Départements : Droit et fiscalité, GREGHEC (CNRS)

L’étude de différentes politiques publiques européennes au moyen d’une approche pragmatique du droit centrée sur les instruments d’action publique démontre que la méthode communautaire se trouve actuellement concurrencée dans les faits par de nouveaux instruments qui, loin de constituer des initiatives isolées, participent d’un modèle alternatif de gouvernance communautaire qui la transforme en profondeur. Cette transformation de l’action publique européenne repose sur l’utilisation abondante de nouveaux instruments d’action publique – plus techniques que politiques et plus incitatifs que contraignants – qui impliquent systématiquement une collaboration entre acteurs publics et privés et où le mode de sanction est devenu de plus en plus une « contrainte par l’image » reposant sur la figure du « mauvais élève de la classe ». Cette évolution n’est pas sans conséquences sur la dynamique de production de droit de l’Union européenne dans la mesure où l’on constate des changements aussi bien au niveau de son contenu que de sa production et de sa mise en œuvre

Legal indicators, global law and legal pluralism: an introduction


The Journal of Legal Pluralism and Unofficial Law

mars 2015, vol. 47, n°1, pp.9-21

Départements : Droit et fiscalité

Mots clés : Mathematical turn, Global law, Indicators, Management

This article explores the development of legal metrics by focusing on the links between legal indicators, global law and legal pluralism. In particular, it addresses the question of the performative role that legal indicators convey in a situation of legal pluralism in global law. First, I argue that indicators are not only a set of socio-legal research methods conducted periodically and systematically with the aim of describing the evolution of a socio-legal reality over time. From a pluralistic perspective, indicators are also devices factually constraining the behaviour of individuals and institutions at different geographical scales. I show that as legal indicators become entrenched in managerial modes of governance, they adopt the role of performance measures. As such, they bridge the factual, normative and behavioural dimensions of social normativity. They rely on data gathering, benchmarking and auditing practices to attempt framing legally relevant behaviour. Second, I argue that legal indicators are triggering a mathematical turn in legal thinking, and so transforming the analytical dimension of legal analysis. The mathematical reasoning underpinning indicators increasingly attempts to supersede, in practice, linguistic and conceptual modes of legal reasoning in the mission of constructing legal concepts, relating them to one another and giving them sense in a specific context. In brief, this article attempts to show that legal indicators are introducing to the legal field a set of practices which are central to any contemporary approach to public and private management, transforming en passant, the way we experience, see and think about law in the context of globalisation