Volume 16(2) of Theoretical Inquiries in Law (2015) carries the papers presented of the June 2014 conference Continue reading
Appeared in: 107 American Journal of International Law 295 (2013)
The concept of sovereignty crystallized at a time when distances were large and self-sufficiency was the aspiration. Sovereignty coincided with notions of democracy, under the assumption of a perfect fit between the scope of sovereign authority and the affected stakeholders. This traditional view of sovereignty yields inefficient, inequitable and undemocratic consequences. This Article argues that in a densely populated and deeply integrated world, sovereignty should be conceptualized as a trusteeship not only toward a state’s own citizens, but also toward humanity at large. Continue reading
TRIPS established a minimum standard of intellectual property rights to be adopted by the member states along with an obligation that mandates mutual recognition of domestic laws which offer the minimum standards of protection. The evolution of this regime has led to concerns over sovereign discretion in matters of domestic importance such as health, food security and education. In the current framework of IP legal pluralism, States must possess an active regulatory discretion, particularly in ensuing that exclusive monopoly rights are not pursued at the cost of its citizens in matters relating to essential needs of their life. In doing so, States must also give due respect to the concerns of global welfare
Published in Journal of Intellectual Property Law & Practice, 2014
Shai Dothan’s new book argues that national and international courts seek to enhance their reputations through the strategic exercise of judicial power. Courts often cannot enforce their judgments and must rely on reputational sanctions to ensure compliance. One way to do this is for courts to improve their reputation for generating compliance with their judgments. When the court’s reputation is increased, parties will be expected to comply with its judgments, and the reputational sanction on a party that fails to comply will be higher. This strategy allows national and international courts, which cannot enforce their judgments against states and executives, to improve the likelihood that their judgments will be complied with over time. This book describes the judicial tactics that courts use to shape their judgments in ways that maximize their reputational gains.
Dr. Shai Dothan is a senior researcher with the GlobalTrust Project at Tel Aviv University and an adjunct professor in the faculty of law at the Hebrew University of Jerusalem.
Eyal Benvenisti and George W. Downs
Appeared in 46 NYU J Int’l L & Politics 742 (2014)
In this Article we argue that democratic failures at both the national and the international level can be best addressed through greater interaction and coordination between national courts and international tribunals. Such cooperation promises to enhance democracy at both levels by helping to ensure that decisionmakers take account of the interests of a greater proportion of the relevant
stakeholders and that the outcomes are therefore better informed and more balanced. We further argue that “democracy” in this context must also be understood as providing a voice to foreigners, who are often excluded from domestic and global decisionmaking processes.
The book argues that the decision-making processes within international organizations and other global governance bodies ought to be subjected to procedural and substantive legal constraints that are associated domestically with the requirements of the rule of law. The book explains why law — international, regional, domestic, formal or soft — should restrain global actors in the same way that judicial oversight is applied to domestic administrative agencies. It outlines the emerging web of global norms designed to protect the rights and interests of all affected individuals, to enable public deliberation, and to promote the legitimacy of the global bodies. These norms are being shaped by a growing convergence of expectations of global institutions to ensure public participation and representation, impartiality and independence of decision-makers, and accountability of decisions. The book explores these mechanisms as well as the political and social forces that are shaping their development by analysing the emerging judicial practice concerning a variety of institutions, ranging from the UN Security Council and other formal organizations to informal and private standard-setting bodies.
On this book:
Doreen Lustig and Eyal Benvenisti
Appeared in 15 Theoretical Inquiries in Law 125 (2014)
In this Article we revisit John Stuart Mill’s critique of the idea of governance by a Good Despot to problematize the contemporary exercise of authority and influence by multinational companies, especially in foreign countries. We redefine the problem of privatization by shifting attention to the democracy losses associated with the privatized decision-making process. This allows us to offer a critical assessment of the potentials and limitations of contemporary attempts to solve the acute problem of democratic deficit associated with privatization.