Volume 18, Issue 2 -

While agencies have an important role in the interplay between central government and states, their functioning impacts both separation of powers and cooperative federalism. Unorthodoxy in rule-making process serves as an example for the ways agencies can further exploit their privileged position in the frame of government. A reaction to an expansion of the weight and centrality of agencies’ decisions consisted in introducing pieces of legislation substantially downsizing agencies’ rulemaking, and in reconsidering judicial deference towards agencies’ determinations. The paper central claim is that all the three branches of government are showing to some extent a willingness to crack down on agencies: the judiciary through employing preliminary injunctions and reshaping the deference doctrine, the President and the Congress through reforms reducing the space of agencies’ actions.

The newest and gradually evolving trends in global law-making have been defined by an ever increasing interplay between rules and principles of different legal orders and between national legal orders and international legal order. References in national constitutions to the binding force of international law within the domestic sphere and sometimes the primacy of such internationally-made law over national laws are now a widespread and unsurprising phenomenon. Clauses referring to international human rights, including direct applicability of specific international human rights instruments, also to international organizations such as the UN, or accession to new international organizations, including transfer of sovereignty, can also be found in a significant variety of cases. The most unique feature of these trends could, however, be the establishment of national constitutional and legal order based on, or modeled after, international law and comparative law. At a broader constitutional level, for example, the international community has played a pivotal role in the style and substance of the constitutions of a number of post-conflict, newly-formed or transformed societies (e. g., Constitutions of Cambodia, Bosnia and Herzegovina, South Africa, East Timor, Afghanistan, Iraq, Kosovo, Libya, and South Sudan). This process of constitution-making influenced by, based on, or modeled after, international law, has unique features that resonate with a cosmopolitan constitutional law-making. This paper seeks to understand the contours of this phenomenon, ascribe the proper value, and identify the degree to which contemporary constitution-making conforms to the original ideals of cosmopolitanism.

The current crisis in the supply of traditional energies, the rising trend of the price of fossil fuels, the degradation of the environment, the effects of climate change and the geopolitical reazons have set the promotion of alternative energies, among which agrofuels stand out, as a priority for international and national policies. They represent a potential source of energy, but it is necessary to debate and carefully evaluate the economic, environmental and social effects before undertaking large-scale programs. This article exposes the main edges of the political-economic, scientific-technological and ethical debate, arising from the global controversy generated by the boom in the production and use of agrofuels, which took place at the beginning of the world crisis that reached public repercussion from August 2007. Although the international debate had its apogee between 2007 and 2008, it is a controversy that has spread over time to the present, but with a lower profile.

This article revisits the response of the European Union (EU) to the challenges posed by anti-terrorist smart sanctions regimes to fundamental rights, vis-à-vis recent legal developments. Following the Kadi saga, many authors defined the EU judicature as the bastion of the rule of law against executive powers. From the perspective of the Council of the EU, instead, Kadi caused a tremor. The EU courts did not only declare that anti-terrorist sanctions could be reviewed: they also affirmed that such review is in principle full, thus extended to all information substantiating sanctions, irrespective of whether covered by secrecy. In this respect, the European Court of Justice established that it is a task of the judiciary to accommodate security considerations militating against the disclosure of intelligence in court and the right to a fair trial. However, through legal instruments adopted in late 2016, the EU seems to be backing off from these settled principles. To test such assumption, the article proceeds in three steps. Firstly, it outlines the contours of the UN Security Council anti-terrorist sanctions regime, pinpointing the characteristics that make such regime problematic with respect to fair trial rights. Secondly, it surveys the development of EU courts’ case-law on secret evidence. Thirdly, it investigates whether the new legal instruments adopted by EU institutions adhere to the principles enshrined in said EU courts’ decisions, or rather represent a departure from consolidated due process rights.

One of the recent developments in comprehending the effects and complexities of environmental regulations are by building environmental models. These models play various functional roles in environmental regulations ranging from assisting in policy making, in formulating new laws and resolving legal disputes to being used as a tool for collaborative negotiations between multiple set of parties. One such methodology for developing models in the context of environmental regulations is the economic analysis of law (EAL). This paper looks into how the EAL could be used in formulating environmental regulation models. This paper is an attempt to help policy makers, lawyers and environmental professionals, in general to understand how EAL could be used as an empirical tool to identify how regulatory quality could reduce pollution levels successfully and also how other variables (such as public participation, Ngo′s etc) could help reinforce the existing regulatory quality. In addition, to understand how this methodology can aid in devising models for examining the effectiveness of the regulatory quality, it also looks at EAL′s historical origins and how it has developed over time and its use (both advantages and disadvantages) in understanding regulation.

Why might one argue that the arbitral tribunal should have the “competence” to rule, as of right, upon its own jurisdiction? Is this natural power consistent with the legitimacy of arbitration? Can it unquestionably achieve the greatest level of efficiency for the parties? Although a considerable body of literature has attempted to answer these questions, this article aims to address (and partially reframe) the core issues relating to arbitral jurisdiction by comparing different legal systems and operative solutions in order to search for new and valuable insights on the topic . There is no doubt, in fact, that the orthodox position traditionally starts from the assumption that access to the courts within parallel proceedings, which (also) questions the allocation of jurisdiction, is problematic also due to the risk of delaying tactics by one party. According to this line of reasoning, when the authority of the arbitrators is challenged, the balance between the legitimacy and the efficiency of the arbitration process could be conditioned by prejudices relating to the (necessary) interference of the courts with the power of the arbitral tribunal to determine its own potestas judicandi (or its lack thereof) on the merits. In an attempt to move on from the classical framing of this issue and towards a comparative evaluation of the rationales and values underlying domestic legislation on arbitral jurisdiction, considered also with reference to the provisions of the UNCITRAL Model Law, this article will seek to provide a solution that is rooted in the complementary role of the courts and of arbitral tribunals. The complementarity between arbitral tribunals and the courts will be shown to be key in securing the legitimacy of arbitration and the actual pre-eminence of this source of alternative private justice and, accordingly, also as a way of striking the optimum balance with the efficiency of the arbitration process.

Citizen science is an emerging trend with an ever greater number of adherents. It involves the collection and contribution of large amounts of data by private individuals for scientific research. Often such data will concern the individuals themselves and will be collected through processes of self monitoring. This phenomenon has been greatly influenced by the Internet of Things (IoT) and the connectivity of a wide range monitoring devices through the internet. In collecting such data use will often be made of the services of various commercial organisations, for example that offer cloud storage services. The possibility of data portability is extremely important in citizen science as it allows individuals (or data subjects) to be able move their data from one source to another (i. e. to new areas of scientific research). This article explores the limits and possibilities that legal rights to data portability offer, in particular the new right as outlined by the European Union’s General Data Protection Regulation. In doing so this article will look at where this right (and how it operates in the international legal context) is able to facilitate the phenomenon of citizen science.

Indigenous title is a unique form of land ownership whereby settlers who occupy land previously inhabited by Indigenous people recognize within their set of laws a legal right possessed by Indigenous people to own their ancestral land. In this paper I examine three jurisprudential criteria by which Indigenous title can be identified: the first based on traditional law or custom, the second on exclusive occupation of the land, and the third on intensive use of the land. Finding flaws with the first two criteria, I argue for a juridical approach to Indigenous title that emphasizes intensive use.