Toward a European citizenship based on transnational constitutionalism and solidarity

In this text the author argues that the European Union should undertake a twofold strategy to assure its own survival against the deadly threat of ethno-nationalism. In particular, it should (1) propel a participatory procedure to constitutionalize and to transform how it views itself and (2) enhance social-welfare rights for the benefit of the immense majority of its citizens. These initiatives would inevitably have to take place over an extended period of time and against all odds. Notwithstanding, they appear to offer the Continent its only chance of overcoming its longstanding crisis and resisting its ethnic nationalist temptations

En sueño

Segundo accésit del Certame

Estómago

Quinto accésit del Certame

Variations on a Theme: Corporate Law in Latin America, Continental Europe, and the United States

The regulation of incorporated companies in Latin America and Continental Europe appears to distance itself from that in the United States. It differs in how it structures itself and handles incorporation, incorporators, piercing, governance, discipline, and shareholders. In their regulatory exertions, both regimes rely, certainly, on legislation and adjudication yet do so differently, qualitatively in addition to quantitatively. Apparently, civil and common law continue to specialize respectively though not exclusively in statutes and binding precedents. Still, they ever more frequently intrude into each other’s apparent specialty, while leaving their own imprint on it. The tendency to converge coexists with that to diverge. This general difference, in tandem with the correlative concurrence, has evolved immemorially, growing in nuances and exceptions. Absent unexpected cataclysms, it should persist down this path into the future. So will its more specific counterparts, highlighted throughout the following discussion. They equally insinuate a somewhat tentative, simplistic, distortive picture of contrasts and similarities. So depicted, the Latin American and Continental Europe scheme seems to foment jurisdictional diversity, concentrate on compliance, enthrone an ever-present state, evoke the concept of the collective good, and dedicate itself to stakeholders. On the other hand, the U.S. model appears to compel convergence among competing jurisdictions, focus on flexibility or user-friendliness, kowtow to an all-powerful corporation (or directorate), wave the flag of individualism or efficiency, and consecrate itself to stockholders. Expectedly, this seeming opposition on specifics will likewise endure and modulate alongside any collateral overlap

Civil Law Pulsations Along the Latin American Periphery

The civil law system shows its true face as it travels from the Continental European core to the Latin American periphery. Many of the principal institutions have found a home and thrived in the new and radically different environment. One can best study them there by contemplating how they have preserved some of their most basic features despite having transformed themselves into something else. The notion of the civil law tradition and that of codification have themselves undergone this dialectic of transformation and preservation. So have the traditional approach to contractual interpretation and to third-party agreements and the common proscriptions on retroactivity and punitive damages. In Latin America, as well as in Continental Europe, the intent of the parties typically takes precedence over the text of the contract and an agreement normally may benefit a third party despite the general restriction on extra-party effects. Similarly, a relatively strict ban on the retroactive application of statutes and on the imposition of punitive damages prevails on both sides of the Atlantic

Down the Final Stretch: State Societal Settlements’ Res Judicata Repercussions

Like the chorus in Shakespeare’s Henry the Fifth, those who proceed on behalf of society at large should have both the first and last word. They should possess the capacity to undertake this act of representation, whether in or out of court, with forcefulness and finality. Indeed, a genuine representative should not have to run the risk of others thereafter embarking upon the matter anew and standing in for whomever she is representing, as well as casting aside her effort as irrelevant, insufficient, or illegitimate. Therefore, a societal settlement, particularly when negotiated by the authorities, may have not only contractual but also procedural (or preclusive) implications, which (partly independently of intent) shield the contractors from litigation as well as liability. To that end, it may or may not, depending on the jurisdiction, require the judiciary’s endorsement in order to constitute the functional equivalent of a judgment. U.S. and civil-law principles of preclusion bar a subsequent suit insofar as it involves the same real party in interest (namely, the whole citizenry) and assertion (or cause and object) as its amicably averted antecedent counterpart. Judges and lawmakers in the United States, as well as Latin America, have invariably conceded these actions an erga omnes effect; in other words, against anyone with standing who might try to reignite the controversy. Settlers in these cases normally neither compromise on the underlying entitlements nor contract on the rights of someone else. In fact, they may and should vindicate these entitlements fully and facilitate the collective conciliation of claims based on collectivity’s own rights. The government, for its part, enjoys plenty of legitimacy to play this role and to settle on, as well as prosecute, these entitlements. In these disputes, the settling or suing actor steps into the shoes of the broader community. The latter, as the interested claimant, may not subsequently take another bite at the apple through a different spokesperson. Otherwise, it would unfairly and inefficiently burden, respectively, its opponents and the adjudicating tribunals in its quest for a windfall. Consequently, the trans-individual settlements and suits at stake should strengthen, rather than weaken, from a punctilious adherence to the requirements of res judicata. They should thereby further legitimate themselves and perhaps even solidify the political and social support from which they benefit

The Politicization of Human Rights

After evolving into a quasi-constitutional regime that boasts virtually universal recognition and a respectable compliance record in Latin America,[1] the Inter-American Human Rights System presently faces a life-threatening crisis. Several countries, under the leadership of the self-styled Bolivarian Axis of Venezuela, Ecuador, Bolivia, and Nicaragua,[2] have questioned the legitimacy of the key institutions, i.e., the Commission and Court. Not surprisingly, high-profile actors have intervened in this interfamilial war. Ecuador’s President, Rafael Correa, for instance, has urged the sponsoring Organization of American States, in the face of the ongoing dispute, to “revolutionize itself or disappear.”[3] [1] The only Latin American countries that have neither signed the American Convention for Human Rights nor recognized the binding jurisdiction of the Inter-American Court of Human Rights are Cuba and Puerto Rico, which are not full members of the sponsoring Organization of American States. [2] Nicaragua has played a relatively minor role in the controversy. [3] Mabel Azcui, El presidente Correa dice que la OEA debe “revolucionarse o desaparecer,” El País (Electr. Version), June 5, 2012 (quoting Ecuadorian President Rafael Correa)

Justice for All: Certifying Global Class Actions

A federal court should approach the presence of foreigners in a global class action for monetary relief with an open mind. It should keep them in so long as it can conclude, upon a reflective comparative law analysis, that the judiciary in their nation of origin would uphold the ultimate ruling. For example, Latin American absent class members should normally stay on board inasmuch as virtually every jurisdiction in their region would allow a U.S. adjudicator to arrive at this conclusion. Accordingly, they would fail, on grounds of res judicata, if they ever tried to re-litigate the matter back home upon a defeat on the merits in the United States. In particular, a tribunal from any one of seven representative regional countries (Mexico, Brazil, Venezuela, Colombia, Panama, Peru, and Ecuador) would most probably find such a U.S. judgment consistent with local due process, as well as with the remaining requirements for recognition. In other words, it would hold that absentees stemming from its jurisdictional territory could not legitimately complain about the preclusive effect since they would have free ridden on the efforts of their representatives with a chance at compensation, would have benefited from numerous fairness controls, and could have similarly faced preclusion in their homeland based on a suit prosecuted by someone else without their authorization. Judges in the United States should engage in a similar in-depth deliberation to decide whether to welcome citizens from anywhere else in the world to the litigation

Civil Law Pulsations Along the Latin American Periphery

The civil law system shows its true face as it travels from the Continental European core to the Latin American periphery. Many of the principal institutions have found a home and thrived in the new and radically different environment. One can best study them there by contemplating how they have preserved some of their most basic features despite having transformed themselves into something else. The notion of the civil law tradition and that of codification have themselves undergone this dialectic of transformation and preservation. So have the traditional approach to contractual interpretation and to third-party agreements and the common proscriptions on retroactivity and punitive damages. In Latin America, as well as in Continental Europe, the intent of the parties typically takes precedence over the text of the contract and an agreement normally may benefit a third party despite the general restriction on extra-party effects. Similarly, a relatively strict ban on the retroactive application of statutes and on the imposition of punitive damages prevails on both sides of the Atlantic