European Union Law and International Arbitration at a Crossroads

It is no exaggeration to describe the relationship between the European Union and international arbitration as the most dramatic confrontation between two international legal regimes seen in a great many years. International law scholars commonly lament the fragmentation of international law, i.e., the co-existence of multiple international legal regimes whose competences overlap and whose policies may differ, resulting in a degree of regulatory disorder. However, seldom do these regimes actually collide. By contrast, the two international regimes in which we are interested this evening international arbitration and the European Union may be described, without hyperbole, as on a collision course. Arguably, the collision has already occurred. The emergence of hostilities on this scale in recent years came about as something of a surprise to me. At Columbia and elsewhere, I have taught EU law and international arbitration law concurrently in different courses, of course for more decades than I care to count. Over that period, I have written and spoken about the EU and international arbitration as separate and distinct enterprises. Rarely did teaching, writing or speaking of one necessitate, or even prompt, discussion of the other

New Frontiers in the Relationship Between National and European Courts

The central question pervading this discussion is simply stated: whether and to what extent the European Court of Justice (“Court of Justice” or “Court”) (and the European institutions more generally) can count on the courts of the Member States to perform their judicial tasks in ways that are faithful to the ground rules of European Union (“EU”) law, be those rules substantive or procedural in character. Looking back over the past five decades, I am struck by the succession of different forms this question of national court “fidelity” to Community law, for lack of a better term, has taken. (The quoted term is meant to evoke precisely the general duty of loyal cooperation *526 imposed on Member States under Article 10 of the current EC Treaty.) I would suggest that we have witnessed essentially three generations of such “fidelity challenges.” In the early years, the fidelity challenge--or “infidelity risk,” if you prefer--ran something like this: Will national courts accept and conform to the Grundnorms of European constitutional law, that is to say, the principles of supremacy and direct effect expounded by the Court of Justice? Or, to take a second example, will national courts genuinely make preliminary references to the Court of Justice in accordance with the criteria for the making of preliminary references that have been established in the Treaty and in the case law of the Court? Considering the indispensable role that preliminary references and preliminary rulings play in the development of EU law, the importance of these ground rules should not be underestimated

Dispute Resolution in Pandemic Circumstances

The peaceful resolution of disputes is among the most important earmarks of a regime attached to the rule of law. Even in countries in which, for one reason or another, courts do not work especially well, civil peace is of paramount importance. The absence of effective institutions for the administration of justice between and among private parties would spell a high degree of social disorder. Even in the absence of a crisis such as we are experiencing, justice systems face a number of challenges in this day and age. Does a jurisdiction have a sufficient number of persons qualified to administer justice, and what are the consequences of a shortfall? In the same vein, is civil justice operating under formalities that generate delays disproportionate to the purposes they serve? Do the procedures that are in place sufficiently allow parties to adequately present their case and adequately rebut their adversary’s? Is access to justice prohibitively expensive, most likely due less to court costs than to costs of representation by counsel? Are there safeguards in place to ensure the independence and impartiality of decisionmakers, and do they work? Is institutional bias or corruption a problem? Overall, does a justice system exhibit the qualities widely viewed as essential: procedural fairness, accuracy, and efficiency

Federal Tort Claims at the Agency Level: The FTCA Administrative Process

Tort actions against the federal government and its agencies are currently governed by the FTCA and various other statutes, agency rules and procedures. Claims against the government are increasing rapidly, and the agencies enjoy broad settlement authority, often at the expense of coordination among the appropriate statutes. This Article examines the various procedures allowed and those that are actually practiced by the agencies. The author points out that, though claims officers are supposed to be fair-minded, the process can take on an adversarial nature, often a prelude to litigation rather than settlement. He proposes that the current processes be made fairer for claimants. He advocates, among other things, liberalizing the rules dealing with bringing the claim, giving notice of reasons for denying a claim and the reconsideration process as means of removing obstructions to agency-level settlements

In Memoriam: Emmanuel Gaillard

It is difficult to add meaningfully to all that has been said and written about the extraordinary Emmanuel Gaillard who left us far too soon. But I shall try. Emmanuel has been described lately as a “titan” and a “giant.” Though he was those things, they fail to capture the humility and humanity that marked Emmanuel for the length of his career. Notwithstanding the monumental achievements he made, and the recognition he so richly deserved, Emmanuel remained throughout a modest, loyal and supportive member of the international arbitration community

The Scope of Judicial Review in French Administrative Law

The arguments that may be raised in support of a claim of abuse of discretion must go to the legality, not just the wisdom or advisability, of administrative action. Though the judge is responsible for seeing to it that the government acts in conformity with law, he may not put himself in its place or interfere in its functioning. His job is not to determine whether in a given case a certain administrative official ought to have acted and, if so, in one particular way. He has neither the means nor the materials for judgments of this sort, nor does he have responsibility for administrative action. Should he undertake to control its wisdom or advisability, he would risk impairing the normal flow of government. These are nearly the words an American court might use in declining to rule on the merits of administrative action. To be more exact, the language has the ring of a dissenting opinion in which a judge accuses his brethren of venturing beyond the domain of the law into that of policy, where they have no business being. The words actually come from three members of the Conseil d\u27Etat, France\u27s closest analogy to a supreme administrative court, attempting to describe one aspect of that institution\u27s important, yet delicate, role in French public life

Introduction to Sandra Day O\u27Connor

There are many, many reasons to honor Justice Sandra Day O\u27Connor-and during the course of her brief but rich stay with us here at Columbia Law School, we have touched on only some of those many reasons. There remains this afternoon one more occasion to honor Justice O\u27Connor-an honor that has a very special resonance at this law school. It is the conferral of the Wolfgang Friedmann Memorial Award by the Columbia Journal of Transnational Law, a recognition of contributions to international law that is deeply meaningful not only at Columbia Law School, but in international law circles generally

Columbia University and a New European Law Chair

As we move toward the end of the century, we become increasingly aware of the importance of enriching the law school\u27s opportunities for study and research in the international and comparative law fields. While we have always taken a geographically broad view of the foreign systems worthy of study and research, and have the most distinguished international and foreign curriculum in the country, we regard European law and legal institutions as of unequaled importance at this stage of the Law School\u27s academic development. The rise of the European Community, of a still larger European economic arena, and of new legal institutions in Central and Eastern Europe are all prominent parts, but only parts, of the whole. Enrichment of our European law program in all its aspects became one of the school\u27s very top priorities. To this purpose, in April 1992, Columbia University School of Law established a permanent Chair in European Law to be held each year by a visiting professor from Europe

Taking Subsidiarity Seriously: Federalism in the European Community and the United States

For a principle that has dominated discussions of European federalism for over five years, subsidiarity has received surprisingly poor academic mention. Subsidiarity has been criticized as inelegant . . .Eurospeak, the epitome of confusion, and simple gobbledegook. It has been described by some as nothing new and by others as quite novel and actually quite dangerous. The President of the Commission of the European Communities, said to be an enthusiast of subsidiarity, finds it used at times as an alibi, and more specifically as a fig leaf ... to conceal [an] unwillingness to honour the commitments which have already been endorsed. Despite subsidiarity\u27s apparent difficulties, the drafters of the Maastricht Treaty on European Union (TEU) nevertheless chose to make the principle a central tenet of the Community\u27s latest constitutional reform. As set out in the TEU, subsidiarity enjoins the institutions of the Community to act in areas of concurrent competence only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States. According to the principle, the Community institutions should refrain from acting, even when constitutionally permitted to do so, if their objectives could effectively be served by action taken at or below the Member State level. The drafters\u27 apparent purpose was to reassure Member State populations, and subcommunities within those populations, that the Community\u27s seemingly inexorable march toward greater legal and political integration would not needlessly trample their legitimate claims to democratic self-governance and cultural diversity. In this Article, I seek to understand the apparent contradiction between subsidiarity\u27s high claims and its relatively low esteem. The Article consists of four parts. Part I offers a largely historical explanation for the importance that Community leaders have apparently ceded to subsidiarity, while Part II confronts the realities of making subsidiarity in Europe more than a purely rhetorical device. In Part III, I conduct a search for subsidiarity as a principle and practice of U.S. federalism, in the belief that the exercise may instruct us about the utility for the Community of an instrument as seemingly problematic as subsidiarity, as well as about the relationship between subsidiarity and federalism more generally. Part IV sets out the results of this comparison