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- Human rights of women in the Islamic Republic of Iran and international law: a conceptual comparisonPublication . Abbasi, SalarThis article seeks to analyze the conceptual frameworks of the human rights of women outlined in international law with those delineated in the legal structure of the Islamic Republic of Iran. The article delves into the conceptual congruence or incongruence between these two diverse spectrums of jurisprudential agendas regarding the human rights of women. The comparison is composed of an analysis into the conservative protectionist and reformist dichotomy in shaping the principles based upon which the human rights of women in the I.R. of Iran is formulated, through a theoretical juxtaposition with the grounding theories that have shaped the human rights of women in international law. The Woman-Life-Freedom protests in Iran highlighted the urgent need to address ideological and systemic violations of women's human rights, and advocate for gender equality in the I. R. of Iran and worldwide. The article is a contribution to such a pressing inquiry.
- Remuneration of content creation in the digital space: challenges, obstacles and a common language to foster economic sustainability and cultural diversityPublication . Mazziotti, GiuseppeWhat is the role of remuneration to ensure diversity of cultural creation at a time when access to knowledge, culture, news and entertainment occurs through a great variety of sources, media, technologies and devices? Diverse cultural expressions in musical, cinematographic and other audiovisual works as well as journalism, photography and video games presuppose economic sustainability, at least when it comes to professionally created works. Content creators would not be able to author new works without relying on adequate economic incentives and rewards. Copyright is the area of law and policy where these incentives and financial rewards have been built, traditionally. However, copyright protection is not, as such, sufficient to guarantee economic sustainability and support to diverse cultural creation. Firstly, copyright has become difficult to enforce and monetize, especially by individual creators, in the context of on-demand streaming services and content-sharing platforms and even more so in decentralised forms of content distribution such as peer to peer networking. Secondly, the rights granted under copyright law and the way these rights are exercised via contract tend to protect more corporate interests than individual creators’ remuneration opportunities. Cultural industries gather as many copyright interests as possible, taking advantage of freedom of contract and of their bargaining positions and market power. In addition to that, as the paper shows, the potential ineffectiveness of copyright for the purpose of guaranteeing remuneration to creators and enhancing cultural diversity is related to how today’s online platforms have been desig ned and to the transition from markets based on permanent acquisition of copies by customers to web-based services giving access to repertoires and/or vast collection of creative works for free (as content-sharing or social media platforms do) or a monthly flat fee basis (as in the case of streaming services). In particular, social media and user-generated content platforms have blurred the distinction between professional and nonprofessional works and have significantly weakened creators’ bargaining power.
- Financing the costs of tackling climate change: the financial transaction tax at the COP 30Publication . Correia, MiguelAdapting to climate change and mitigating its effects will require a major global financial effort. One of the financial instruments that has been discussed over the past two decades to finance this effort, without ever achieving visible success, is the Financial Transaction Tax (FTT). More recently, at the COP 28, the tax was given new impetus with the creation of the Global Solidarity Levies Task Force, led by France, Kenya and Barbados and supported by several other countries and a wide range of international organisations (including the IMF, the World Bank, the UN, the OECD and the G20), with the aim of identifying sources of financing for the global effort. The Task Force has identified the FTT as one of the levies that merits further research. It is hoped that at the forthcoming COP 30, to be held in Brazil in November 2025, the Task Force will present final technical proposals for the introduction of new levies at the global level, including an FTT. The aim of this study is to contribute to this endeavour by evaluating the FTT proposal recently released by the Task Force for public consultation and, where relevant, making policy suggestions for consideration.
- Business law in Europe after Brexit. The need for legal transnationalisation in the international market place. The example of international assignmentsPublication . Dalhuisen, Jan HendrikAfter Brexit, legislators, practitioners, and legal scholars in the EU have to reconsider what may be legally needed to support business increasingly conducted in or from the EU rather than from London. Practically, practitioners and legal scholars will have to ask whether and to what extent a contractual choice of English or alternatively New York law is or remains sufficiently effective and enforceable especially in proprietary and regulatory matters to overcome the basic conflicts of law approach still cutting up transactions in the international business flows into local parts depending on closest connections in the hope that these legal pieces together still present an adequate legal framework for the business as a whole. The true question is then to what extent common law can remain dominant through a party choice of law. More fundamentally, in all international commerce and finance, therefore in international professional dealings, not only this approach but substantive key building blocks of private law may need reconsideration, especially new financial structures and funding mechanisms, to operate and find more universal legal support. This goes well beyond the EU or a party choice of law and affects all national legal systems connected with the international market place and its operation, therefore also the U.S, South America, Japan, China, South Korea, Singapore, India, Indonesia, and many others. The question then is what the alternatives are. It is submitted that transnationalisation of private law is here the more ready and efficient tool and way forward especially in trans-border manufacturing, supply, and distribution chains by accepting, on the one hand, the legal unity of international business transactions and, on the other, the direct application of international fundamental and general principle, custom and market practices, and a strong form of party autonomy subject to transnational minimum standards of behaviour in the international market place. Although the common law is closer, which derives in contract and moveable property law from its origin in commerce, it needs to respect the rules of the international markets and its legal structures just as much to remain truly relevant and move forward. It means that these are issues no less relevant to international business when connected with or operating from the US, the UK, Canada, or Australia or made subject to a contractual choice of their laws. This article attempts to meet this challenge for international assignments of portfolios of monetary claims with assignees in other countries and debtors in many. It is a vital part of the international financial infrastructure. The solution is found in the approximation of monetary claims to, and treatment like, promissory notes, which developed similarly as negotiable instruments under the older law merchant, the applicable law and relevant sources to be found in the manner of public international law pursuant to Art. 38(1) of the Statute of the ICJ, as it was for all law before the 19th Century when nationalisation set in. Assuming globalisation holds, it is submitted that in international commercial and financial dealings we are returning to this earlier model which, in the Grotian manner, in terms of methodology reunites all law formation and application at the international level at least for professional participants.
- The constitutional right to an effective remedy in the digital age: a perspective from EuropePublication . Gregorio, Giovanni De; Demková, SimonaThe consolidation of the digital age has expanded the demand for justice. The challenges characterising digital relationships have led European policy makers to wonder about the opportunity to introduce new safeguards to ensure the right to effective remedies as enshrined in the EU Charter of Fundamental Rights. On the one hand, this approach has triggered the proliferation of new procedures, thus expanding potential remedies. On the other hand, the introduction of new remedies increases fragmentation and uncertainty about their access and functioning. This work examines the challenges for the right to an effective remedy raised by the proliferation of intertwined remedies in three key pieces of European digital regulation – the General Data Protection Regulation, the Digital Services Act, and the Artificial Intelligence Act. Particularly, we assess the three key avenues for remedies, namely internal complaints, independent supervision and judicial remedies. Based on this assessment, we underline the need for further clarity in the interplay between the remedial designs, central to which will be the focus on institutional collaboration across the emerging remedial frameworks.
- Legality of UEFA’s prior authorisation system in C-333/21 European Super LeaguePublication . Pijetlovic, KatarinaThe organisational market for cross-border football competitions is dominated by UEFA as a sole commercial operator. Because UEFA also occupies a regulatory monopoly on all European football matters enabling it to control the access to the organisational market via prior authorisation system, UEFA is in a conflict of interest situation. With reference to the Court of Justice decision in the European Super League (ESL) case, this article addresses the legality of the prior authorisation system ran by UEFA. In particular, the article makes a difference between the Court’s emphasis on the lack of formal procedural framework within which UEFA’s decision on prior authorisation of ESL took place, and the substance of UEFA’s decision had it been adopted within proper procedural framework. The article will also address the issues of both the new UEFA Authorisation Rules Governing International Club Competitions and a new proposed format for the ESL competition under the guidelines issued by the Court.
- A constitutional judge at workPublication . Ribeiro, Gonçalo de AlmeidaThis is a short essay written for a collection of papers paying tribute to the work of Harvard Law School’s legal theorist Duncan Kennedy. It is a first-person or introspective interpretation of the double experience of freedom and constraint of a constitutional judge working on the relevant materials to craft a particular legal object – in this case, a defensible conception of constitutional democracy −, in the vein of Kennedy’s critical phenomenology of adjudication.
- A revisit to Islamic inter-polity legal theoryPublication . Abbasi, SalarThis article delves into the jurisprudential and legal theory aspects of the religion of Islam in regard to inter-polity laws and relations. The conceptualisation of Islamic inter-polity commands and laws follows a bright line criterion, for it clearly defines non-Muslim polities and people, categorises them, and commands Islamic polity’s approach in regard to non-Muslims in unequivocal terms. The approach of this article is neither polemic nor protectionist; though it indeed is critical. To recognise veneration of an ideology is not tantamount to discrediting or hampering critical explorations about it, and Islam is not an exception. The concern of this article is to shed light on fundamental pillars upon which Islam’s inter-polity commands are formed and textually reinforced as being legally unquestionable and intrinsically legitimate. The discourses through which the Islamic inter-polity legal theory is scrutinised; in this piece, are the following: intrinsic legitimacy of the territorial and ideological expansionism of Islam, and Islam’s ‘group identity’ politics in its private and public laws under the notion of ‘Ummah’ or Islamic community.
- Opinion statement ECJ-TF 4/2022 on the ECJ decision of 22 September 2022 in case C-538/20, W AG, on the deductibility of foreign final lossesPublication . Nogueira, João Félix Pinto; Prats, Francisco Alfredo Garcia; Haslehner, Werner C.; Heydt, Volker; Kemmeren, Eric; Kofler, Georg; Lang, Michael; Panayi, Christiana HJI; Blétière, Emmanuel Raingeard de la; Raventos-Calvo, Stella; Richelle, Isabelle; Rust, Alexander; Shiers, RupertIn this CFE Opinion Statement, submitted to the EU Institutions in November 2022, the CFE ECJ Task Force comments on the ECJ decision of 22 September 2022 in W AG (Case C-538/20), on the deductibility of foreign final losses. The W AG decision makes it clear that comparability should be examined differently depending on whether the exemption is granted by domestic or tax treaty law. The CFE ECJ Task Force has reservations regarding this distinction. For the taxpayer, an exemption has the same economic effects regardless of whether it is adopted through domestic law or tax treaty law. Moreover, W AG departs from the Court’s reasoning and thinking in Lidl Belgium, which also concerned Germany and the same rules. Ideally, the Court should have made this explicit. Finally, it remains to be seen whether Marks and Spencer (Case C-446/03) is still “good law” or if W AG was one of the final nails in the coffin of the “final loss” doctrine.
- Opinion statement ECJ-TF 3/2022 on the EFTA court decision of 1 June 2022 in Case E-3/21, PRA Group Europe, on the discriminatory interaction between the "interest barrier" and group contributionsPublication . Kemmeren, Eric; Prats, Alfredo; Haslehner, Werner; Heydt, Volker; Kofler, Georg; Nogueira, João; Lang, Michael; Panayi, Christiana HJI; Blétière, Emmanuel Raingeard de la; Raventos-Calvo, Stella; Richelle, Isabelle; Rust, Alexander; Shiers, RupertThis is an Opinion Statement prepared by the CFE ECJ Task Force on the PRA Group Europe case, in which the EFTA Court delivered its decision on 1 June 2022. At issue in PRA Group Europe was the interaction of the Norwegian "interest barrier rule" ("interest limitation rule"), which generally limit the deductibility of interest payments to affiliated resident and non-resident entities to 30% of EBITDA, and the group contribution rules, which permit tax effective transfers between group members, but are limited to Norwegian entities. As group contributions also increase the EBITDA of the recipient Norwegian entity (and decrease it at the level of the paying Norwegian entity), companies in the Norwegian tax group can achieve interest deductions under the interest barrier rules where profits ("tax EBITDA") and interest expenses are distributed unevenly between the companies in the group, while a similar opportunity to escape (or lessen the impact of) the interest barrier rules is not available to cross-border groups. The EFTA Court took a combined perspective on the interaction of those rules and found them to constitute an unjustified restriction of the freedom of establishment under Articles 31 and 34 of the EEA Agreement. The EFTA Court's decision is particularly interesting from an EU law perspective, as the interest barrier rule of Article 4 of the Anti-Tax Avoidance Directive (ATAD) similarly foresees the option for Member States to introduce a domestically-limited "interest barrier group" to permit a calculation of exceeding borrowing costs and the EBITD at the local group level. The CFE ECJ Task Force welcomes the EFTA Court's progressive impetus on fundamental freedoms doctrine: PRA Group Europe AS makes it clear that for purposes of identifying a restriction, for establishing comparability and for justification, a combined perspective on the interaction of two sets of rules – here the interest barrier on the one hand and the group contribution regime on the other – is necessary. From that perspective, the interaction of the Norwegian rules on the "interest barrier" and on group contributions leads to unjustified discrimination in cross-border situations. However, if asked to decide on a similar case, the CJEU might take a different approach. First, the CJEU could take a different perspective on the available grounds of justifications and, e.g., accept the coherence of the tax system as such ground. Second, Article 4 ATAD gives the Member States the option to treat an "interest barrier group" as a single taxpayer and to limit the group perspective to domestic settings. Even if such an option in the ATAD is not viewed as "exhaustive harmonization", one could wonder if the mere existence of the ATAD and the value judgments made by the EU legislature therein could lead to a different outcome in the EU (CJEU) vis-à-vis the EEA (EFTA Court).