"Courts applying the law : perspectives from Europe and Asia", a new book I edited just appeared at Peter Lang

 

I had the privilege of editing this bilingual volume, published in English and French, which brings together contributions from ten participants, including me.

The volume illuminates judicial practice through three compelling perspectives, each forming a distinct Title. The first examines interpretative methods in civil and criminal law, opening with Germany's Interessenjurisprudenz and its application in German courts, then turning to the French judicial approach to statutory interpretation, before concluding with an analysis of how Kazakhstan's Supreme Court handles normative interpretation.

The second perspective explores constitutional control mechanisms, tracing the French Constitutional Council's use of transitional interpretative reservations, the UK's constitutional evolution following the Human Rights Act, and the emergence of constitutional review within Kazakhstan's legal framework.

The third perspective investigates how domestic courts engage with international conventions, focusing on the Convention on the Contract for the International Carriage of Goods by Road (CMR) and examining judicial treatment of double taxation treaties in Kazakhstan and Russia.

Beyond my editorial role and writing the volume's introduction, I contributed two chapters devoted to my longstanding scholarly focus: German Interessenjurisprudenz. 

My first chapter articulates the mechanism and nuances of this sophisticated methodological doctrine, while the second offers concrete case law demonstrating Interessenjurisprudenz in action.

In this second chapter, I analyze a 1917 Reichsgericht decision concerning a contract favoring a third party with a mortis causa clause, alongside Heck's critique—Heck being the architect of Interessenjurisprudenz. I then examine the Reichsgericht's landmark 1923 decision and Heck's response, before turning to two related 1932 patent cases analyzed by Berlin attorney Norbert Sohn. These cases reveal how German patent offices had tacitly embraced Interessenjurisprudenz in their reasoning during the 30s, even without explicitly acknowledging the methodology.

The book is visible and can be bought at:https://www.amazon.fr/-/en/Remus-Titiriga/dp/3034355556

Supranationalism in Investor-State Dispute Settlement (ISDS) Tribunals vs European Court of Human Rights (ECtHR)

I have just published a paper presented in French at the International Conference held at the University of Le Havre Normandy, in Le Havre, France, on 6-7 November 2024. 

That conference was about "Les activités économiques à l'aune des droits fondamentaux" and was recently published in a very nice 476-page volume with the same title by Legitech. 

The book addresses the challenges in reconciling economic activities with fundamental rights and freedoms. The contributions are from four continents: Europe (France, Romania, Italy, Switzerland), North America (Canada), Africa (Togo, Gabon, Morocco, Mauritania), and Central Asia (Kazakhstan).

As for my paper in the volume, "Supranationalism in International Courts: ECtHR vs. ISDS Tribunals, " it examines two fundamentally different models of supranational adjudication: the European Court of Human Rights (ECtHR) and the Investor-State Dispute Settlement (ISDS) Tribunals. The supranationality of the second type of Tribunals was never considered in the legal literature.

While both allow private parties to challenge state actions before international bodies, they embody distinct conceptions of supranationalism. The ECtHR represents 'structural-systematic' supranationalism—building permanent institutions that progressively integrate national legal systems. ISDS represents 'case-specific' supranationalism—providing powerful dispute resolution for individual cases without creating broader legal integration.

The analysis develops a multidimensional framework that builds on the scholarship of Schmerz, Pollack, Helfer, Slaughter, and Alter. 

Supranationalism is assessed across six key dimensions:- Independence from States: How judges are selected, their tenure, financial independence, and protection from removal; -Nature of Jurisdiction: Whether permanent or ad hoc, compulsory or optional, and possibilities for state withdrawal; --Access to the Tribunal: Who can bring cases, admissibility requirements, and breadth of standing; -Scope of Jurisdiction: The breadth of subject matter over which the tribunal has authority; -Interpretative Authority: Whether rulings create binding or persuasive precedent and influence national law; -Enforcement Mechanisms: How effectively tribunal decisions are implemented and what consequences follow non-compliance.

The comparison between the two demonstrates that supranationalism is multidimensional and context-dependent. The ECtHR's structural-systematic approach suits deep integration among states sharing common values. ISDS's case-specific approach suits the protection of economic interests without broader political integration. 

Neither model is inherently superior—each serves distinct purposes effectively. Understanding these variations requires examining specific institutional features rather than applying a single template. Future international tribunal design should consciously choose which type of supranationalism—systematic integration, episodic remediation, or hybrid approaches—best matches institutional purposes and contexts.

The volume can be found and bought online at:https://www.amazon.com/s?k=9782919826407&i=stripbooks&linkCode=qs

When Interessenjurisprudenz distanced itself from a decision of the Supreme Court (answering the catastrophe of Weimar's Germany hyperinflation )

 In November 1923, Germany's Supreme Court (Reichsgericht) faced an impossible choice. The nation's hyperinflation had just ended, but it left behind a legal catastrophe. Emergency laws passed in 1914 to finance World War I by borrowing had established a "forced exchange rate" requiring creditors to accept paper marks at face value, regardless of devaluation. Between 1914 and 1923, the German mark collapsed from a stable currency to worthless paper, with 4.2 trillion marks per US dollar by the end. A loaf of bread cost 160 marks in late 1922 but 200 billion marks a year later. The middle class was destroyed.  Creditors who had lent in good faith faced total ruin.

On November 28, 1923, the Reichsgericht ruled that mortgage creditors were entitled to "revaluation"—payment calculated in gold mark values rather than worthless paper. The Court based its decision on Article 242 of the German Civil Code, which requires good faith (Treu und Glauben). The Court argued that, correctly interpreted, the 1914 monetary laws never intended such extreme consequences and that good-faith principles prevented debtors from exploiting devaluation to evade absolute obligations.

Philipp Heck, founder of the doctrine of interests (Interessenjurisprudenz), offered his own variant of a decision after a devastating critique. While acknowledging revaluation as "an ethical imperative," Heck argued the Court's decision rested on erroneous historical interpretation, misapplied good faith principles, and exceeded judicial authority. 

This controversy raised fundamental questions about legal method still relevant today: Can courts use general principles to override clear legislative commands? Should changed circumstances trigger judicial reinterpretation or require legislative reform? What are the limits of judicial power during crises?

Based on a presentation I gave at a Conference held on 24-25 October in Craiova, Romania, I developed a paper that addresses all the above problems. The English variant of the paper is under the title: "The German Supreme Court Confronts Catastrophe and the Limits of Judicial Power: Analyzing the 1923 Reichsgericht Revaluation Decision, the Doctrinal Arguments, and Philipp Heck's Critique". The paper is visible at:https://dx.doi.org/10.2139/ssrn.5907123