The Inter-American Court and Commission of Human Rights, following the approach in key international human rights texts, have emphasized the importance of procedural rights in the protection of Indigenous rights to territory and to cultural identity. In particular, the Court and Commission have focused on rights to consultation in a range of cases in which indigenous peoples have challenged mining, logging and other extractive activities on their territories. Consultation processes are often expected to serve a wide range of purposes in the protection of indigenous rights and interests in territory. Consultation is a means of informing a community about a project, but also a process through which an agreement can be reached between the community and the State about the use of territory or the sharing of benefits. In this article, I focus on consultation's role as part of the impact assessment process. In determining the impact that a project might have on Indigenous territory, the Court and Commission have found that the State must assess both the environmental and cultural impacts of a plan or activity. Consultation is a necessary part of the identification of the impacts of an activity and ensuring that the State has all the necessary information prior to making decisions to grant concessions over indigenous territory. However, the Court and Commission's interpretation of Indigenous testimony in consultation processes could undermine the role of such testimony in the assessment of environmental impacts, and might silence Indigenous participants rather than ensure their meaningful participation. With reference to the idea of illocutionary silencing, taken from feminist speech act theory, I argue that the Court and Commission have interpreted Indigenous testimony about the environment as being claims about the cultural impacts of disputed activities or plans, and not as claims about the environmental impacts. In other words, when Indigenous community members have offered descriptions of their territories and surrounding environments, such testimony has been treated not as descriptions of the environment but as reports of cultural beliefs and practices. As a result, Indigenous input in regard to the environmental impacts of a project or plan can be overlooked. In this article I argue that this failure to recognize indigenous accounts of the environment means that these communities are silenced through the consultation process and denied the opportunity to be informed about all relevant impacts.

A possibilidade de indevido cerceamento da concorrência em contratações públicas não é um problema apenas de países em desenvolvimento. Trata-se de questão que ocupa juristas e economistas ao redor do mundo. No presente artigo apontam-se três formas típicas de manifestação do fenômeno, quais sejam: a corrupção, as restrições competitivas provocadas pelo próprio Estado e as condutas anticoncor-renciais perpetradas pelos particulares. Pretende-se mostrar que o Direito Administrativo moderno pode e deve desempenhar importante papel no trato das restrições à competitividade. Para tanto, é imprescindível permear o Direito da Contratação Pública com preocupações que, hoje, são típicas tão somente do Direito Concorrencial.

This contribution examines the impact of the EU and the European Court of Justice (ECJ) on European family law in light of recent institutional and jurisprudential developments. In the first part, it situates the field of family law within the European context in order to clarify the meaning and scope of European family law in relation to the EU. In the second part, the impact of the EU on European family law is explored with regard to both the internal and external aspects of the Union institutions' competence in family law. In the final part, the impact of the ECJ is considered, with particular regard to salient case law illustrating its role in family law through its interpretation of Union law and its formulation of judge-made rules of Union law by virtue of what is known as European "federal common law".

This article attempts to examine the impact of European private law upon the legal system of Cyprus taking into account its mixed elements and whether these elements have contributed towards a smooth reception of EU law. While Nikitas Hatzimihail argued in 2013 that it may still be too early to assess the impact of European Union (EU) law upon the legal system of Cyprus, the financial crisis and its effects render such an assessment possible. Building upon Hatzimihail’s work in his effort at understanding a “unique” legal system by using comparative law theory to understand the doctrinal development and elaboration of Cyprus law, this article attempts to offer its own contribution towards that end, by examining the impact of EU law upon the enforcement of contracts. The legal system of Cyprus reaffirms Sir Thomas Smith’s perception of a mixed jurisdiction as a system where civil law and common law doctrines have been received and indeed contend for supremacy. These systems, that Vernon Valentine Palmer described as forming part of the “third legal family” are considered to be more receptive of outside influences, while their experience is considered valuable for the elaboration of a European private law. In this con-text, the experience of European law reception in Cyprus, particularly the Unfair Contract Terms in Consumer Contracts Directive, proves otherwise. Cyprus courts have given European standards a common law gloss despite the willingness to partake in European law.

Abstract: Should courts consider cases from other jurisdictions? The use of foreign law precedent has sparked considerable debate in the United States, and this question is also controversially discussed in Europe. In this paper and within the larger research project from which it has developed, we study the dialogue between different European supreme courts quantitatively. Using legal databases in Austria, Belgium, England and Wales, France, Germany, Ireland, Italy, the Netherlands, Spain, and Switzerland, we have hand-collected ...

This book, including this introductory chapter, is structured to interrogate each of the components of transnational labour law (TLL): its characterization as law, its relationship to 'labour' and 'labour law' and its 'transnational' character. Each component raises points of convergence and disjuncture with the past. For although TLL has risen in response to the period of globalization, this handbook suggests that its roots lie in earlier moments, like 1919, when concerned actors sought to address the challenges inherent to the affirmation that 'the failure of any nation to adopt humane conditions of labour is an obstacle in the way of other nations which desire to improve the conditions in their own countries'. TLL builds on the multiple, and largely mutually reinforcing, accounts of its past, but also loosens the grip both of a unitary, centralizing framing of the 'sovereign nation state,' however tripartite its conception, as the sole responsible actor; and of an accompanying exclusively statist understanding of law.

This essay discusses the economic case for regulating shadow banking. Focusing on systemic risk, shadow banking is defined as leveraging on collateral to support liquidity promises. Regulating shadow banking is efficient because of the negative externality stemming from systemic risk. However, because uncertainty undermines the precise measurement of systemic risk, quantity regulation is preferable to a Pigovian tax to cope with this externality. This paper argues that regulation should limit the leverage of shadow banking mainly by imposing a minimum haircut regulation on the assets being used as collateral for funding.

While some have simplified the analytical approach of the Award quantitatively, the MHS Award’s original analysis had actually been performed descriptively: (a) the Jurisdictional Approach, strictly defined, requires that all the established hallmarks of “investment” must be present before a contract can even be considered as an “investment”; (b) the Typical Characteristics Approach does not necessarily mean that a tribunal would decline jurisdiction, even if one or more of the established hallmarks of “investment” were missing. The MHS Award emphasizes that the criteria for “investment” must be “examined in their totality” since they are interdependent. This approach should be preferred because it offers the flexibility that tribunals need to handle “the infinite variety of cases that would arise before ICSID tribunals notwithstanding the absence, whether qualitatively or quantitatively, of a particular hallmark”. Tribunals today struggle to reconcile the definition of “investment” under ICSID with the definition of “investment” in the investment treaty: [A] balanced interpretation is needed, taking into account both the State’s sovereignty and its responsibility to create an adapted and evolutionary framework for the development of economic activities and the necessity to protect foreign investment and its continuing flow. Exercising this flexibility in favour of economic development would strengthen the jurisdictional integrity of ICSID by protecting the fundamental idea of the system – to attract foreign investment flows into the host countries for the purpose of development.