By Vasiliki Verykaki, PhD Researcher at the City Law School

The European Union’s legal and constitutional landscape is undergoing a remarkable transformation, as highlighted by Judge Damjan Kukovec in a thought-provoking lecture on 28 November at City Law School. At the heart of these changes lies the EU’s assertion of autonomy in determining its legal standards and the evolving role of its judicial and regulatory institutions. Judge Kukovec’s insights provided a thorough analysis into the evolving influence of EU agencies and the complex relationship between EU and international law, shedding light on key developments reshaping the EU’s legal framework.

He first asserted that EU law, as a sui generis system, relies on mutual trust among authorities for functionality. Jurisdiction over customs law, VAT, and passenger rights shifted from the European Court of Justice (ECJ) to the General Court (GC) to alleviate ECJ’s caseload and leverage GC’s capacity. Also, traditionally, EU agencies have included independent Boards of Appeal (BoAs) that serve as a preliminary stage before cases are escalated to the GC. This arrangement signifies a shift in the jurisdiction, as the option of an appeal against decisions of several specified BoAs at certain agencies is effectively being reduced. In the future, the GC will regularly be the ‘last resort’ in these matters. This structural evolution highlights the growing importance of EU agencies in resolving significant legal and regulatory matters, shaping a new constitutional order.

Moreover, in the landmark Kadi judgments (C-402/05 P and C-415/05 P), the ECJ emphasised the EU’s autonomy from international law, adding that protecting fundamental rights is central to the EU legal order. Accordingly, all Union measures must align with these fundamental rights. On a similar note, the Judge summarised the Case C-457/18, Slovenia v. Croatia, where the Court ruled that Slovenia’s claim, based on Croatia’s failure to recognise an arbitral award, involved an international law dispute rather than EU law. Despite some links to Croatia, the Court did not consider the issues having a Union dimension to exercise jurisdiction.

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By Dr Dogan Gultutan at the City Law School

Introduction

Moral damages are as real as material damages and, accordingly, must be compensated where appropriate in the particular case. This is not new law. The position as regards moral damages and its recoverability was settled over a century ago. In 1923 in the Opinion in the Lusitania Cases, the tribunal confirmed it in the following terms:

“That one injured is under the rules of international law, entitled to be compensated for an injury inflicted resulting in mental suffering, injury to his feelings, humiliation, shame, degradation, loss of social position or injury to his credit or to his reputation, there can be no doubt, and such compensation should be commensurate to the injury. Such damages are very real, and the mere fact that they are difficult to measure or estimate by money standards makes them none the less real and affords no reason why the injured person should not be compensated therefor as compensatory damages, but not as penalty.”

[Opinion in the Lusitania Cases, 40]

Similarly, the Permanent Court of International Justice enunciated in its decision in the Chorzów case the following principle of international law:

“The essential principle contained in the actual notion of an illegal act – a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals – is that reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed.”

[The Factory at Chorzów (Germany v. Poland)]

These seminal decisions were pivotal in paving the way for moral damages awards to claimant investors in investment arbitrations. The first and foremost example is the Desert Line award, an award delivered under the auspices of the International Centre for Settlement of Investment Disputes (ICSID).

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By Professor David Collins

Maintaining a smooth trading relationship with the European Union (EU) is rightly a top priority for the new Labour government. While there is strong growth in the UK’s trade with other countries around the world, especially in the Asia-Pacific, the EU is still one of the UK’s most important trading partners. Non-tariff barriers in the form of product safety regulations are among the most significant modern impediments to trade, particularly since the EU tends to employ dense and constantly evolving regulations on a wide range of goods and services.

The Product Regulation and Metrology (PRM) Bill reflects the UK government’s concern that it does not currently have sufficient powers to respond to EU regulatory initiatives fast enough that there will not be adverse trade consequences. The EU’s new General Product Safety (GPS) Regulation, which will come into force in mid-December of this year, should entail significant product standard regulatory changes. The GPS will introduce specific safety obligations for economic operators and online marketplaces, reinforced product traceability requirements, as well as specific rules on handling product recalls, including a mandatory recall notice template.

The PRM Bill is intended to allow UK domestic law to be updated to reflect new or revised EU product requirements with a view to minimizing trade frictions. Under clause 2(7) of the PRM, future UK product regulations can provide that a product requirement is to be treated as fulfilled if it meets specified provisions in relevant EU law. This captures the government’s view that any EU regulation is presumptively valid from the standpoint of safety – a reasonable perspective given the EU’s devotion to the precautionary principle of mitigating even the most miniscule of risks. It is odd, though, that only the EU’s standards are granted this status – the Bill does not make reference to any other international standard setting bodies. It says nothing about the costs of these measures as borne by businesses.

It is not quite right, moreover, to term this clause in the PRM Bill as indicative of ‘mutual recognition’ since there is no indication that the deference will work in the opposite direction (e.g. UK standards being presumptively accepted for products entering the EU). The EU remains concerned that the UK will apply product standards in such a way that it will make it more competitive, drawing economic activity away from the continent.

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By Dr Jed Odermatt

Article 3(5) of the Treaty on European Union (TEU) sets out the Union’s obligation to “contribute […] to the strict observance and the development of international law”. The Court of Justice of the European Union (CJEU) has interpreted this to mean that “when [the Union] adopts an act, it is bound to observe international law in its entirety, including customary international law, which is binding upon the institutions of the European Union.” Until now, however, the CJEU had not gone so far as to annul a Union legal act on the basis that it violates international law. On 4 October 2024 the Grand Chamber of the Court of Justice upheld the General Court’s decision to annul two economic agreements concluded between the European Union and the Kingdom of Morocco. The landmark judgment is the first time the CJEU has annulled an EU agreement for violating international law binding on the Union.

The legal and factual background to these cases has been discussed elsewhere on this blog. The cases relate to the former Spanish colony of Western Sahara, which is considered by the United Nations to be a non-self-governing territory. In a 1975 Advisory Opinion, the International Court of Justice (ICJ) recognised the people of Western Sahara have the right to self-determination. The status of the territory continues to be subject to a long-stalled United Nations mediated peace process. France, the only EU Member State with a permanent seat on the UN Security Council, recently backed Morocco’s autonomy plan that would recognise Morocco’s sovereignty over the territory.

The economic agreements between the European Union and the Kingdom of Morocco have been the subject to ongoing litigation before the CJEU and domestic courts in the EU Member States over the last decade. In December 2015, the General Court annulled the Council Decision approving the Euro-Mediterranean Agreement concluded between the EU and Morocco in so far that it applies to the territory of Western Sahara. That decision was reversed on appeal in 2016. In these judgments, the Court highlighted two important factors. First, the territory of Western Sahara is separate and distinct from Morocco. Second, as Western Sahara is considered a ‘third party’ to these agreements, they can only apply with respect to Western Sahara with the consent of the people of Western Sahara.

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By Muhammad Tanvir Hashem Munim

For the last few days, Bangladesh has seceded from the outside world. The government has imposed a communication blackout amid its crackdown on the student protestors demanding quota reforms. It has enforced a nationwide curfew and deployed military forces.

The student protests in Bangladesh demanding quota reforms began in early 2018. The movement was sparked by growing frustration among university students over the existing public sector job quota system, which they felt disproportionately favoured certain groups at the expense of merit-based selection. The quota system in the country reserves 56% of government first-class and second-class jobs for some specific groups. In some job sectors, this quota reservation may reach as many as 96% of the jobs. Such a system caused discontent among the university students.

The discontent led to organised demonstrations, initially gaining momentum at Dhaka University and quickly spreading to other universities across the country. The students’ primary demand was to significantly reduce the quotas and allocate more jobs based on merit, ensuring equal opportunities for all candidates. The movement gained widespread support, highlighting broader issues of fairness and transparency in government recruitment processes.

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By: Sahar T. Sadoughi

“Europe will be forged in crisis and will be the sum of the solutions adopted for those crises”— Jean Monnet.

The last decade has seen great geopolitical challenges, from ‘Brexit’ to the COVID-19 Pandemic to the wholescale Russian invasion of Ukraine and beyond. With these arguably seismic events, the role of states, transnational bodies, and the international order takes centre stage. It is these questions that grounded the City Law School  Institute for the Study of European Law (ISEL) Annual lecture on 10 July entitled ‘The EU and the Current Geopolitical Challenges’. Featuring a lecture by two-term former President of the European Commission and former Portuguese Prime Minister José Manuel Barroso, followed by a panel with Professors Panos Koutrakos and Elaine Fahey, chaired by Christopher Vajda KC, former Judge at the European Court of Justice; the Event aimed to provide insight into the unique role the European Union currently occupies vis-à-vis these ongoing geopolitical challenges and its potential role in a rapidly changing international order.

Barroso’s lecture used insight from his previous role as president of the European Commission and his current role as chair of Global Vaccine alliance ‘GAVI’ to highlight the challenges currently facing the international order and the place that the EU operates and the strength of unity arising from its response to these crises. He presented his thesis behind the lecture, stating that he believes the EU is going to make more progress in its identity insofar is the EU is moving from “geopolitical adolescence” to becoming a “geopolitical adult”.  He began by positing that the power behind the international order was based in the US and Europe after the Second World War, but that this international order is in the process of changing. Barroso cited the invasion of Ukraine by Russia in March 2022 as a historic moment that has turned the tide for the EU, claiming that it is unlikely the world will come to a status quo ante.

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By Enrico Bonadio (City, University of London) – Tanvi Agarwal (West Bengal National University of Juridical Sciences)

The ‘right to repair’ movement is currently gaining momentum, as also confirmed by a directive recently approved by the European Council. Broadly speaking, such a right aims at giving consumers the liberty to enjoy products efficiently for a longer period of time. Every product has indeed a period for which it functions effectively, beyond which it starts becoming obsolete. Here, the divide in the ideology between the manufacturers and the consumers becomes stark.

Manufacturers of products such as consumers’ electronics (e.g. smartphones) often, either directly or indirectly, tend to prevent consumers from repairing or modifying these products on their own. They may deploy strategies like restricting access to the information available to the public regarding the basic blueprint or manuals of the product along with denying access to necessary instruments, tools of repair and essential elements of the product.

But consumers often want the right and freedom to modify and repair these products on their own without which they are forced to endure expenses in buying a new product. While this debate is burgeoning advocating for a change in legislation to allow this right to be made available for consumers, the manufacturers are rigorously trying to stall the process by claiming how the ‘right to repair’ impinges on their intellectual property (IP) rights.

Indeed, such IP rights, especially copyright, can be invoked to control who can repair these goods. For examples, complex products such as those within the information and communication technology sector often incorporate software or other technological device which are protected by IP rights. And pieces of legislation like the US Digital Millennium Copyright Act (DMCA) and the EU Info-Society Directive explicitly prohibit the circumvention of technological protection measures embedded into such copyright-protected products. These rules can be enforced against third parties who are involved in repairing services.

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By Dr Tietie “Frank” Zhang, The City Law School

In an article recently published in the Hong Kong Law Journal, Dr Tietie “Frank” Zhang discusses the appropriate approach that the Supreme People’s Court of China (SPC) should adopt when interpreting the scope of an arbitration agreement.

Arbitration is the preferred method to resolve international commercial disputes in today’s world. The scope of an arbitration agreement is a key issue in the theories and practice of international arbitration, because it directly decides an arbitrator’s jurisdiction. If a dispute falls outside the scope of an arbitration agreement concluded between the two parties, the arbitrator will not have authority to decide the case. This therefore makes scope a crucial factor in the arbitration process.

Courts in many jurisdictions and particularly those that are pro-arbitration, or friendly towards arbitration, have adopted a presumptive rule when determining scope issues. Under this rule, courts interpret the scope of an arbitration agreement broadly to cover all disputes related to the contract between the parties, except for those they have explicitly excluded. As a result, disputes broadly related to a contract, including those arising out of a supplemental agreement or a settlement agreement, are usually deemed as falling within the scope of the arbitration clause in the original contract.

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By Nouf Ali S AlGazlan, PhD Researcher at The City Law School

Law students are always asked to be ‘more critical.’ But what does this really mean? Patrick Goold’s ‘A Critical Introduction to Intellectual Property Law’ is a good example of a book that enables students to deeply engage with philosophical concepts and refine their critical thinking skills. At the book launch last week, on June 11, 2024, a diverse panel of experts engaged in an interesting discussion on the role of interdisciplinary research in Intellectual Property.

The panel consisted of Lord Justice Richard Arnold (Chair), Professor Estelle Derclaye (Nottingham), Professor Justine Pila (Oxford), Professor Martin Kretchmer (Glasgow), Dr Enrico Bonadio (City), and Dr Patrick Goold (City). The panel first introduced their thoughts on the book and then there was an open discussion. A summary of each panel member’s main points is provided below.

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