The Court of Justice of the European Union and the European Court of Human Rights: Two Autonomous Human Rights (R)Evolutions
Datum för disputation: onsdagen den 6 november 2019
Fakultetsopponent: Professor Jan Komárek, Köpenhamns universitet
Article 6 TEU requires the EU, an institution which has been in a constant state of evolution for over six decades, to accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”), a creature of the Council of Europe (“CoE”) which, along with its legal system, has traveled its own evolutionary path over the same period. This raises the vital question of how or if these divergent institutions can converge and reintegrate their human rights standards and whether such grafts “will take”. Accession requires that the Court of Justice of the European Union (“CJEU”) conform its doctrines, human rights and otherwise to the ECHR’s rights doctrines as developed by the European Court of Human Rights (“ECtHR”.) For example, the CJEU and the ECtHR share a number of terms of art such as “the rights of the defence” but apply them quite differently within their different legal systems. To accomplish Article 6 (2)’s mandate all parties need to precisely understand what is the same and what is different about the CJEU’s and ECtHR’s visions of human rights. It appears that these differences are far greater than have generally been assumed and that they are deeply rooted in the two courts’ institutional and doctrinal histories and consequent path dependencies. This research seeks first, to separate the history from the hagiography and second, to approach the different Legal system’s understandings and approaches to rights in general, and human rights in particular. It uses a variety of legal, philosophical, sociological and policy approaches for a better understanding of these systems’ basic conceptions of rights and how they affect their application.
Avtalsviten – effekter och rättsverkningar
Datum för disputation: fredagen den 20 september 2019
Fakultetsopponent: professor Jori Munukka, Stockholms universitet
This thesis concerns the legal consequences and the economic effects of the use of a damages clause (avtalsvite). Starting from a rather routinely picture in the legal literature, the thesis seeks to establish a more sophisticated application of the clause, in order to maximize the parties total utility.
Thanks to their long-standing use, there is a generally accepted picture of what damages clause are, but, in fact, this
picture turned out to be an insufficient basis for the deeper understanding at which this thesis aims. To pursue this understanding, the thesis starts off by defining what is required for an obligation to be classified as a damages clause; that the obligation in the damages clause must not be conditional on anything else than non-fulfilment of the main obligation of the clause. With this definition, a number of problems could be solved. The solution in the literature implied the application of default rules, in order to fill out the damages clause. In the thesis, however, the clause blocks the application of default rules, since the application of the latter presupposes a legal gap that – by way of the definition of the damages clause – does not exist.
The legal effect of the clause is in itself straightforward; a monetary claim with a certain content arises. What is more
complicated is the way in which the damages clause affects the application of the background law governing breach of
contract that would otherwise be applicable. The damages clause has an obvious connection to damages according to the expectation interest, since it is this compensation that is actualized in the event of a breach of a contractual obligation if the agreement does not contain any damages clause. This connection had, therefore, to be investigated, and it became central to the understanding of damages clauses adopted in the thesis. Another crucial part of the thesis consists of an extended use of the reliance interest. In this part, especially with its relation to when the damages clause’s main obligation is invalid, I argue that the compensation that has been granted in the case law, stems from an application of a non-contractual obligation.
Another central question for the thesis, which has been discussed since the middle of the nineteenth century, is the
relationship between damages clauses and damages according to default rules. Damages according to the clause must always be paid, on the basis of the principle of the binding contract. The question is whether a damages clause affects the right to damages according to the default rules. The tendency in the second half of the twentieth century was to say that the damages clause is exclusive. In investigating this issue, this thesis had to take into account recent cases from the Swedish Supreme Court. My reading of these latter cases is that the background law does not contain any rule that governs the relationship between a damages clause and awarding damages according to the background law.
In the final two chapters, the thesis argues that the parties, in order to maximize their total utility, should use an exclusive damages clause and that the amount specified in the clause should be as close as possible to the expectation interest. This amount may then need to be adjusted to take account of any reliance expenditure and the parties’ attitude towards bearing the risk.
Regulating European Standardisation through Law
The Interplay between Harmonised European Standards and EU Law
Datum för disputation: måndagen den 20 maj 2019
Fakultetsopponent: Professor Mariolina Eliantonio
Standardisation is one of the oldest human activities. Industrial revolution and electro-technical advancements have further increased the importance of standardisation. Nowadays standards regulate our daily life not only through the products and services we use, but also directly as laws. In the EU, Harmonised European Standards (HESs) are used in legislation—occupying the law’s domain—but at the same time, the HESs are not produced through the same manner as laws—i.e. by democratically elected individuals. This thesis investigates the legal status of these technical rules under EU law and whether and how EU law can regulate and hold European standardisation accountable by means of judicial review. In answering these questions, I admit that there are different visions of how the HESs used in EU legislation can be seen, which influences how we regulate and hold accountable European standardisation. Notwithstanding these differences, one thing is clear: if we accept that the HESs play an important role in regulating health, safety, and the environment, and at the same time are not produced by democratically elected individuals, then the least the law can do is to regulate and ensure the legal accountability to perfect the standardisation process, to make it more accountable and ‘public-regarding.’ In exploring these issues, I propose conceiving of the EU law as a ‘gentle civiliser’ for the standardisation process. In particular, I argue that the EU economic law could be a backdoor through which constitutional principles of good governance reach and regulate the European standardisation system. To do so, the judicial review of the European standardisation system at the EU level should be a process oriented as to trigger a more inclusive, open, and transparent standardisation process; in other words, judicial review should be a catalyst for a ‘public-regarding’ standardisation.
Letizia Lo Giacco
An Analysis of the Use of Judicial Decisions in International Criminal Law Adjudication through the Lens of Law-Making
Datum för disputation: måndagen den 8 april 2019
Fakultetsopponent: Associate Professor Joseph Powderly
The present research investigates the formative processes of international criminal law through the iterative citation of judicial decisions in adjudicatory practices. Given the centrality of the judge in the adjudication of international criminal law, this study is underpinned by a legal realist approach to international law informed by the work of Alf Ross (Scandinavian Legal Realism) and Gregory Shaffer (New Legal Realism), according to which the meaning of legal rules and principles is not autonomous from how they are empirically practiced and interpreted by courts. Judicial decisions thus embed authoritative statements of the meaning and content of international law.
Assuming a retrospective look, this book analyzes how courts (international and domestic alike) have used judicial decisions in constructing the meaning and content of posited rules of international criminal law, and how they succeeded in stabilizing certain interpretive outcomes, or offered a reason to depart therefrom, in a dynamic process of international law formation.
Although governed by the rules of the 1969 Vienna Convention on the Law of Treaties, the interpretation of treaties and international legal texts more broadly is not a mechanical act leading to uniform interpretive outcomes across different jurisdictions. Rather, interpretation is a form of argumentation in law, whereby the court argues for a particular understanding of a legal text to justify legal decisions. The choice of such an understanding over other plausible possibilities hinges on an exercise of discretion by the court, and is arguably influenced by, although not limited to, the normative ideology and axiological preferences of the judge. The analysis of judicial decisions undertaken in this research shows that the citation of judicial decisions stems from rules of argumentation laid down by courts themselves. As such, the formation of the meaning and content of the law is oriented and constrained by courts’ rules of argumentation which, for instance, require to follow prior established jurisprudence unless ‘compelling reasons’ exist to depart from it, or to justify departure from a previously established line of cases. In this argumentative framework, prior judicial decisions provide a justification to reaffirm like legal findings.
This inquiry proceeds by way of three main steps: i) it describes the citation of judicial decisions in the adjudication of international criminal law in international and domestic courts; ii) it analyzes the relevance ascribed by courts to prior judicial decisions in their legal argumentation; and iii) it conceptualizes the iterative citation of judicial decisions as an avenue for the formation of international criminal law. In order to achieve these objectives, judicial decisions of international and domestic courts in three thematic areas are examined, namely the notion of ‘protected group’ in genocide cases, the notion of ‘armed conflict’ in war crimes cases as well as violations committed in armed conflict, and the notion of ‘unlawful combatant’. The analysis of this material allows to appreciate that the use of judicial decisions in courts’ adjudication transcends the doctrine of sources of international law and the idiosyncrasies of domestic legal traditions (common law/civil law), as the creative force of judicial decisions is primarily exhibited in courts’ argumentation. In this framework, the acceptance by later courts of prior judicial decisions (i.e. authoritative statements of the meaning and content of the law), signaled via citation practices, validates those judicial decisions as legally correct statements of the law. This explains why some judicial decisions became reference points in the adjudication of international criminal law while others have not.