http://hdl.handle.net/10993/121 Search this channel search http://orbilu.uni.lu/simple-search http://hdl.handle.net/10993/42989 Title: The Difficult Construction of European Banking Union: Introduction <br/> <br/>Author, co-author: Howarth, David; Schild, Joachim <br/> <br/>Abstract: Banking Union represents one of the most important developments in European integration since the launch of Monetary Union. Furthermore, the design of the Banking Union agreed between 2012 and 2014 was a messy compromise among European Union (EU) member states. It is not surprising then that Banking Union has sparked a lively academic debate and triggered an ever-growing number of publications from different disciplinary backgrounds. This edited volume is located at the intersection of two major waves of academic research on Banking Union. The first wave of academic work focuses upon the economic rationale underpinning the supranationalisation of control over banking—regulation, supervision, support and resolution—and the political dynamics and legal issues that shaped the design of the Banking Union agreed. This literature focuses upon Banking Union’s foundational phase between 2012 and 2014 when the major texts enshrining Banking Union in law were negotiated and adopted. The second stage of academic research analyses the functioning of the different elements of Banking Union. New research questions have been triggered by the—albeit limited—empirical evidence on the operation of the supranational supervision and resolution of banks. Contributions to this second wave of Banking Union-related research attempt to identify potentially dangerous lacunae and contribute to on-going reform debates. This edited volume brings together the work of sixteen scholars focused on the political, legal and economic debates surrounding the construction and operation of Banking Union, and its necessary reform. Mon, 20 Apr 2020 09:21:39 GMT http://hdl.handle.net/10993/42988 Title: The Difficult Construction of European Banking Union <br/> <br/>Editor: Howarth, David; Schild, Joachim <br/> <br/>Abstract: The volume brings together the work of sixteen scholars focused on the diverse debates surrounding the construction and operation of Banking Union (BU), and its necessary reform. BU represents one of the most important developments in European integration since the launch of Monetary Union. Furthermore, the design of the BU agreed between 2012 and 2014 was a messy compromise among EU member states. It is not surprising then that BU has sparked a lively academic debate and triggered an ever-growing number of publications from different disciplinary backgrounds. The first wave of academic work on BU focuses upon the economic rationale underpinning the supranationalisation of control over banking — regulation, supervision, support and resolution — and the political dynamics and legal issues that shaped the design of the Union agreed. This volume is located at the intersection of this first phase of academic research and a second stage which analyses the functioning of the different elements of BU. New research questions are triggered by the albeit limited empirical evidence on BU’s implementation and operation. Contributions to this second wave of research attempt to identify potentially dangerous lacunae and contribute to on-going reform debates. Mon, 20 Apr 2020 08:53:50 GMT http://hdl.handle.net/10993/42987 Title: Theoretical Lessons from EMU and Banking Union: Plus ça change <br/> <br/>Author, co-author: Howarth, David; Quaglia, Lucia <br/> <br/>Abstract: Why did Euro Area member state governments decide to move to Banking Union (BU) — presented by proponents as a crucial move to ‘complete’ Economic and Monetary Union (EMU) — only in 2012, over twenty years after the adoption of the Maastricht Treaty? Why has a certain design for BU been chosen and some elements of this design prioritised over others? This paper interrogates previous academic accounts on the move to and the design of EMU — neofunctionalist, intergovernmentalist and constructivist — evaluating their explanatory power with reference to BU. It is argued that the asymmetrical design of EMU generated a variety of spill-overs and, hence, a neofunctionalist drive to supranationalise control over bank supervision and financial support for banks as part of the so-called ‘completion’ of EMU. However, intergovernmental negotiations informed by moral hazard and domestic political economy concerns explain the asymmetrical design of BU agreed by national governments. Mon, 20 Apr 2020 08:33:41 GMT http://hdl.handle.net/10993/42975 Title: Coronavirus and the Whistleblower: The (Missing) Role of International Law <br/> <br/>Author, co-author: Kafteranis, Dimitrios Wed, 15 Apr 2020 12:25:20 GMT http://hdl.handle.net/10993/42938 Title: A Multilateral Interpretation of the Multilateral Instrument (and Covered Tax Agreements)? <br/> <br/>Author, co-author: Haslehner, Werner <br/> <br/>Abstract: The analysis of the multilateral nature of the interpretation processes created by the MLI shows that very little “true multilateralism” arises from its adoption. At its core, the international tax system remains fragmented and built on bilateral agreements, with only a thin overlay of multilateral agreement on selected issues. The MLI does not set up a multilateral dispute resolution mechanism. The Conference of the Parties as the only true multilateral body created by the MLI plays a very small – if any – role in the interpretation and application of tax treaty rules. Neither has the MLI produced a system where national courts would have a stronger basis to enforce the harmonious interpretation of treaty terms in both contracting states (let alone among all Parties to the MLI) beyond the general appeal of such approach that already exists prior to – and outside the scope of – the MLI. If a coherent interpretation of CTAs with a view to achieve something like the elusive “single tax principle” was indeed a goal behind the project as a whole, the rules on interpretation applicable following the MLI’s adoption do not amount to a codification of that ideal, although the MLI can, in specific circumstances, have an interpretative effect on tax treaties even where it does not result in a modification of the norms in that treaty. Decision harmony among courts in different countries, therefore, remains an ideal that cannot be based in substance on the existence of the MLI. Thu, 09 Apr 2020 07:17:00 GMT http://hdl.handle.net/10993/42892 Title: One money, two markets? EMU at twenty and European financial market integration <br/> <br/>Author, co-author: Howarth, David; Quaglia, Lucia <br/> <br/>Abstract: This contribution combines neo-functionalism and historical institutionalism to understand the implications of differentiated integration in Economic and Monetary Union (EMU) and Banking Union (BU) for the single market in financial services in the European Union (EU). From the 1980s, the relaunch of the Single Market and monetary integration in the EU were presented by the supporters of EMU as mutually reinforcing, as in the logic of the Commission’s Report ‘One Market, One Money’. Initially, EMU appeared to reinforce financial integration, especially in the Euro Area banking sector, even though EMU was a case of differentiated integration in the EU. Subsequently, the incomplete EMU triggered the sovereign debt crisis, which undermined financial market integration and was addressed through the establishment of BU, which reinforced differentiated integration. Both EMU and BU have negative implications for the ‘singleness’ of the single market in financial services, potentially resulting in ‘One Money, Two Markets’. Wed, 01 Apr 2020 10:39:02 GMT http://hdl.handle.net/10993/42891 Title: Introduction to ‘Economic and Monetary Union at Twenty: A Stocktaking of a Tumultuous Second decade’ <br/> <br/>Author, co-author: Howarth, David; Verdun, Amy <br/> <br/>Abstract: This contribution discusses the two main asymmetries of European Economic and Monetary Union (EMU) as they developed over the past two decades since the launch of the Single Currency. From the outset, EMU involved asymmetric degrees of integration in the area of ‘economic’ union (less centralised governance) versus ‘monetary’ union (more supranational governance). With the outbreak of the Sovereign Debt Crisis in 2010, the regime-shaping relevance of a second asymmetry emerged: one roughly between the member states of the Euro Area ‘core’ and those in the ‘periphery’. Each of the two asymmetries have created a range of challenges—institutional, policy and political — that undermine the stability and sustainability of the EMU project. Wed, 01 Apr 2020 10:24:25 GMT http://hdl.handle.net/10993/42884 Title: National Report on Luxembourg: Judicial Cooperation in Criminal Matters and Electronic IT Data in the EU <br/> <br/>Author, co-author: Ligeti, Katalin; Robinson, Gavin Tue, 31 Mar 2020 18:57:53 GMT http://hdl.handle.net/10993/42853 Title: Evoluzioni e involuzioni del diritto del lavoro europeo nel prisma di due trattazioni recenti <br/> <br/>Author, co-author: Ratti, Luca Thu, 26 Mar 2020 16:49:36 GMT http://hdl.handle.net/10993/42845 Title: Book Review: Counter-Terrorism, Constitutionalism and Miscarriages of Justice: A Festschrift for Professor Clive Walker <br/> <br/>Author, co-author: Robinson, Gavin Wed, 25 Mar 2020 19:04:48 GMT http://hdl.handle.net/10993/42820 Title: Mare Nostrum: The Revival of the Maritime Boundary Conflict in the Eastern Region of the Mediterranean Sea <br/> <br/>Author, co-author: Al Hajjaji, Shams Al Din Mon, 23 Mar 2020 00:22:20 GMT http://hdl.handle.net/10993/42819 Title: Islam and Reform of Authoritarianism: The Case of Muslim Majority Government <br/> <br/>Author, co-author: Al Hajjaji, Shams Al Din Mon, 23 Mar 2020 00:17:37 GMT http://hdl.handle.net/10993/42812 Title: Cross-Border Dissemination of Online Content - Current and Possible Future Regulation of the Online Environment with a Focus on the EU E-Commerce Directive <br/> <br/>Author, co-author: Cole, Mark; Etteldorf, Christina; Ullrich, Carsten <br/> <br/>Abstract: Can the rules of the European Union’s E-Commerce Directive, which date back to the year 2000, continue to be valid with regard to the dissemination of content in view of the constantly evolving online environment and the changing role of platforms as a result of new business models? The relevant legal foundations in this respect at EU and national level are complex, and their interplay is often unclear. The resulting uncertainty about who is responsible and therefore liable for certain content requires a critical review of the current legal framework. This study, conducted by the Institute of European Media Law (EMR) on behalf of the State Media Authority NRW, analyses the current legal framework and reveals ways of enforcing the applicable provisions concerning illegal content. It pays special attention to the need for reform of the E-Commerce Directive in light of the changing role of platforms. Wed, 18 Mar 2020 17:50:01 GMT http://hdl.handle.net/10993/42806 Title: Bitcoin Governance as a Decentralized Financial Market Infrastructure <br/> <br/>Author, co-author: Nabilou, Hossein <br/> <br/>Abstract: Bitcoin is the oldest and most widely established cryptocurrency network with the highest market capitalization among all cryptocurrencies. Although bitcoin (with lowercase b) is increasingly viewed as a digital asset belonging to a new asset class, the Bitcoin network (with uppercase B) is a decentralized financial market infrastructure (dFMI) that clears and settles transactions in its native asset without relying on the conventional financial market infrastructures (FMIs). To be a reliable asset class as well as a dFMI, however, Bitcoin needs to have robust governance arrangements; whether such arrangements are built into the protocol (i.e., on-chain governance mechanisms) or relegated to the participants in the Bitcoin network (i.e., off-chain governance mechanisms), or are composed of a combination of both mechanisms (i.e., a hybrid form of governance). This paper studies Bitcoin governance with a focus on its alleged shortcomings. In so doing, after defining Bitcoin governance and its objectives, the paper puts forward an idiosyncratic governance model whose main objective is to preserve and maximize the main value proposition of Bitcoin, i.e., its censorship-resistant property, which allows participants to transact in an environment with minimum social trust. Therefore, Bitcoin governance, including the processes through which Bitcoin governance crises have been resolved and the standards against which the Bitcoin Improvement Proposals (BIPs) are examined, should be analyzed in light of the prevailing narrative of Bitcoin as a censorship-resistant store of value and payment infrastructure. Within such a special governance model, this paper seeks to identify the potential shortcomings in Bitcoin governance by reference to the major governance crises that posed serious threats to Bitcoin in the last decade. It concludes that the existing governance arrangements in the Bitcoin network have been largely successful in dealing with Bitcoin’s major crises that would have otherwise become existential threats to the Bitcoin network. Mon, 16 Mar 2020 14:45:09 GMT http://hdl.handle.net/10993/42795 Title: Crime, Security, and Data Adequacy in the UK: The Next Sting in Brexit’s Tail <br/> <br/>Author, co-author: Robinson, Gavin Thu, 12 Mar 2020 18:34:51 GMT http://hdl.handle.net/10993/42786 Title: The Concept of Liberal Democratic Law <br/> <br/>Author, co-author: Van Der Walt, Johan Willem Gous <br/> <br/>Abstract: This book rereads seven pivotal 20th century jurisprudential and political philosophical positions represented in the work of Herbert Hart, Ronald Dworkin, Duncan Kennedy, John Rawls, Rudolf Smend, Hans Kelsen and Carl Schmitt from the perspective of a concept of liberal democracy that pivots on a stable distinction between the symbolic and real realms of politics envisaged by Claude Lefort. It also articulates this founding distinction of liberal democracy in terms of the instruction to stabilise the relation between potentiality and actuality that can be drawn from the work of Giorgio Agamben, and from Ernst-Wolfgang Böckenförde’s seminal dictum that liberal democracy lives from principles it cannot guarantee. The book assesses the seven jurisprudential and philosophical positions of Hart, Dworkin, Kennedy, Rawls, Smend, Kelsen and Schmitt with regard to their capacity to sustain Lefort’s and Agamben’s respective distinctions between the symbolic and the real, and between potentiality and actuality. It scrutinises the extent to which they heed the instruction that liberal democracy must refrain from realising its founding principles. For purpose of doing so, it also portrays these seven jurisprudential/philosophical endeavours as twentieth century responses to a long history of political theoretical and political institutional endeavours that commenced in fifth century Athens, marked the transition from the republican to imperial Rome, fuelled the conflicts between secular and clerical power during the Middle Ages, and persisted to burden the attempts of the French Revolutionaries to stabilize the unity of the “People” in the years after the revolution. Tue, 10 Mar 2020 15:53:13 GMT http://hdl.handle.net/10993/42785 Title: Law and Deconstruction <br/> <br/>Author, co-author: Van Der Walt, Johan Willem Gous <br/> <br/>Abstract: The explication of "deconstruction" put forward in this short essay seeks to recover the radicality of the idea of deconstruction that Jacques Derrida developed in his writings. It does so by uncoupling “deconstruction” from the law and from any attempt to employ it in the service of better or "more just" law. Although Derrida was undoubtedly committed to any political or epistemological strategy that could lead to improvements of law that would render it "more just" from a by and large social democratic point of view, it would be a mistake to believe that he considered strategies of deconstruction employable or necessary for such purposes. Notwithstanding the fact that he sometimes produced phrases or passages that seem to call for an employment of deconstruction for purposes of making the law more just, he evidently considered the aim of deconstruction, more rigorously understood, an endeavour to precipitate an experience with “an outside” which dominant social and textual discourses programmatically expel from experience. Derrida insisted that it is impossible to know whether this “soliciting” of an experience with the “outside” would be beneficial or useful. The moment that benefit or utility enters any calculation, one can be sure that the “outside” that he contemplated with recourse to key concepts in his work such as “justice”, “event”, “gift” and “hospitality”, has already again disappeared from one’s scope of scrutiny. What legal theory gains from Derrida’s contemplation of deconstruction is therefore not a method with which one can endeavour to make the law more just, more hospitable, readier to take a chance with the event, more orientated to the gift, etc., but a profound and rigorous understanding of how the suppression of justice, hospitality, the event and the gift is constitutive of law. Tue, 10 Mar 2020 15:43:12 GMT http://hdl.handle.net/10993/42784 Title: The Gift of Time and the Hour of Sacrifice: A Philosophical-Anthropological Analysis of the Deep Difference between Political Liberal and Populist Politics <br/> <br/>Author, co-author: Van Der Walt, Johan Willem Gous <br/> <br/>Abstract: George Orwell wrote a review of Adolf Hitler’s Mein Kampf in which he made the following observation: “[H]uman beings don’t only want comfort, safety, short working hours, hygiene, birth control and, in general, common sense; they also, at least intermittently, want struggle and self-sacrifice, not to mention drums, flags and loyalty-parades.” Philip Stephens brought this observation of Orwell’s to my attention in a Financial Times article that sought to make sense of the rise of populist politics in Europe and the United States in our time; a development that came startlingly to a head with the British referendum that triggered Brexit and the election of Donald Trump as President of the United States in October 2016. My paper presented at the January Workshop in Luxembourg engaged with this passage from Orwell’s discussion of Hitler’s Mein Kampf and Stephens’ reading of it in the Financial Times. It described or explained the difference between liberal and populist/fascist responses to times of crisis in terms of the difference between the liberal economy of the gift and the illiberal economy of sacrifice, and scrutinised the possibility of a stable distinction between these two economies with reference to especially Marcel Mauss and Jacques Derrida. Tue, 10 Mar 2020 15:21:00 GMT http://hdl.handle.net/10993/42700 Title: Luxembourg and the European Union <br/> <br/>Author, co-author: Harmsen, Robert; Högenauer, Anna-Lena Mon, 02 Mar 2020 10:42:10 GMT http://hdl.handle.net/10993/42688 Title: Towards an Executable Methodology for the Formalization of Legal Texts <br/> <br/>Author, co-author: Libal, Tomer; Steen, Alexander <br/> <br/>Abstract: A methodology for the formalization of legal texts is presented. This methodology is based on features of the NAI Suite, a recently developed formalization environment for legal texts. The ability of the tool to execute queries is used in order to drive a correct formalization until all queries are validated. The approach is studied on a fragment of the Smoking Prohibition (Children in Motor Vehicles) (Scotland) Act 2016 of the Scottish Parliament. Sun, 01 Mar 2020 21:25:32 GMT