Tuesday, June 29, 2010

Law Overlapping at Its Edges--Views From the University of Barcelona

It was my privilege to help organize a recently concluded round-table held at the University of Barcelona in conjunction with its excellent faculty of law.   This Academic-Civil Society Round table was held on June 10, 2010 at the Faculty of Law of the University of Barcelona.

The object of the round table was to bring together faculty from a variety of institutions to share their work across disciplines in ways that highlight overlap--that is that focus on the ways in which what appear to be unrelated fields within distinct national legal orders actually reflect common approaches, trends and policy discussions.   For that purpose, the roundtable brought together scholars and civil society actors from diverse places to share their views and perspectives so that debates that have often been national or regional can be linked. To make things a little more interesting, each willing participant was asked to provide a position statement of a sentence or two summarizing their own work or vision for  the future of their field or  to make another contribution that might be of interest to others.  

Conference participants included members of the faculties of the following institutions:

University of Barcelona
         Cristina González Beilfuss
         Eva Andrés Aucejo
         Andreu Olesti Rayo
         Jaume Saura Estapà

Pennsylvania State University,
         Larry Catá Backer

Loyola Law School Los Angeles,
          Lary Lawrence

University of Pittsburgh
          Jules Lobel

University of Louisville.
          Manning Warren III

Civil society representatives included  those drawn from the following organizations:
International Chamber of Commerce--Spain,
          Jordi Sellares

Palou-Rognoni Advocats (Barcelona)
          Jordi Palau

U.S. federal court system.
          Karen Engro

(Conference participants)
After my introduction, Vice Dean Cristina González Beilfuss of the University of Barcelona  opened the session, welcoming the participants and emphasizing its broad outline of the conference.

 (Vice Dean González Beilfuss, Jules Lobel and Karen Engro).

 I started off the discussion with a short analysis of the evolution of legal harmonization and its challenges in the 21st century, looking especially to the challenge of vertical and horizontal convergence of public and Private law.  Harmonization and convergence of traditionally incompatible systems--law and governance, contract and statute, public and private will dominate structural issues of institutional development of emerging governance organs. 

(Larry Catá Backer and Eva Andrés)

Andreu Olesti described the role of the courts in multi judicial systems.  The focus was on the European Union in which distinct but overlapping court systems with non-contiguous  jurisdiction semi hierarchical relations operated within the territories of the adhering states.  Issues of jurisdiction and the extent of the binding nature of decisions tend to complicate issues of convergence within the European Union system.  Yet they serve as a template for judicial convergence at the international level.

Manning Warren moved from the issue of courts to that of the regulation of economic enterprises.  He suggested  the ways in which issues of the regulation of economic actors have escaped the boundaries of territorially based states.  He examined some of the issues that have emerged in corporate governance as global corporate operations have effectively transformed domestic issues of governance into matters of cross border concern.  Issues of jurisdictional overlap, of convergence and of hierarchy of regulation dominate this field in ways that parallel to some extent those that affect the construction of multi-level court systems.

(Manning Warren makes a point with Andreu Olesti (left) and Lary Lawrence (right))

Jordi Palou added another layer to the analysis by focusing on the rise of international courts for the enforcement of global criminal law. The focus was on the creation of the International Criminal Court and its predecessor special courts for Yugoslavia and Rwanda.  The difficulties of constructing a judicial system in the absence of a state apparatus to enforce laws that are not the product of a single demos but enforced through a cooperative framework involving state and international organizations presents a series of problems that implicate law, politics, organizational theory, rule of law and democratic accountability issues.

Cristina González then turned to structural issues of law.  She explained the nature and tensions in the movement of private international law from the domain of the domestic legal orders of the Member States to its reconstitution as a part of the legal order of the European Union.  That reorganization has paralleled an equally important development, the construciton of a regulatory framework  for the easier recognition and enforcement of jusgments.  The principal focus of that inquiry was on the harmonization of family law within Europe.  She provided a valuable substantive discussion of the application of issues of multi-jurisdictionality, convergence and cooperation within multi-state supra national systems with wider implications for the harmonization of rules across borders generally.

Jules Lobel focused on an issue implied in the remarks of earlier presenters--the issue of extraterritoriality.  Specifically he first considered globalization in the context of the application of domestic constitutional law to an alien for actions abroad.  This problem raises a variety of issues that remain substantially unresolved but point to  the difficulties of systemic convergence under a framework in whcih the conventional state system rules still dominate but where the state system is functionally undermined by the reality of human activity across borders.  These problems are not merely ones of substance or theory, but also one of approaches to legal education,  Professor Lobel posed the question of the comparative value of legal education in Europe and in the United States.  He contrasted the principal American method of training in thinking (rather than on substantive rules) with that of Europe in which substantive rule training is privileged over analytical method.  A lively debate on this point followed.

Eva Andrés focused on another substantive issue--that of international tax policy.  Tax policy harmonization exhibited the same pattern problems as those identified in other substantive areas.  Tax advantage tourism, tax haven arbitrage and a host of related issues of contests for authority, extraterritorial legislation as a method for control, resistance to such projections of power and coordinated reform are at the heart of efforts to coordinate tax policy.  Those efforts have implications for other substanive areas--from the incentive effects on corporate governance, to the migration effects with implications for family law, to the effects on the structuring of access to judicial venues in the structuring of multi-jurisdictional remedial structures.

(left to right--Larry Catá Backer, Eva Andrés, Andreu Olesti and Manning Warren) )

Karen Engro focused on the courts themselves.  Not only do courts face issues of jurisdiction and hierarchy, but their internal procedures has been undergoing a revolution as a consequence of technological changes.  Electronic discovery is overburdening courts faced with substantial shrinkage of state financial support.  The financial burdens of trying complex cases, especially those with transnational elements involving multinational corporations has grown substantially.  In addition, judicial resolution has become more complex as alternative dispute resolution systems continue to grow as part of the judicial architecture.   All of this has put a strain on conventional approaches to legal education as well.

(left to right--Lary Lawrence, Cristina González Beilfuss, Jules Lobel, Karen Engro, Jordi Palau)

Lary Lawrence ended the session with a sustained focus on commercial law.  He noted emerging issues as commercial transaction law and policy has shifted focus from the local to the transnational.  Convergence issues here highlight the still sometimes potent differences among legal systems.  It has raised issues ranging from the appropriate form of governance (principles based versus rules based governance) to the relationship between commercial custom and regulatory authority of states.

The written position statement of several of the conference participants follows:

Palau-Rognoni Advocates
Jordi Palau

Abstract. Even though one cannot deny that tensions exist between the paths of justice and those of international peace-building, a global approach to violent conflicts is becoming increasingly necessary. Within this context, we must take into account that victims and civil society are beginning to play an important role in achieving a peaceful solution to violent conflict; in participating, to a greater or lesser degree, in the process called for by the path of justice, - whether international or transitional justice during or after the conflict – as well as by international mediation and dialogue. This paper presents the experience obtained from the specific approaches to peace and justice in Central Africa featuring the involvement of civil society and truth as cornerstone of all action. To conclude, the paper argues that it is necessary to make a strong and ample financial investment in global peace processes and in the creation of a Global Center for Peace and International Conflict Mediation.


Undoubtedly, civil society at large, and victims in particular, have gone from being mere spectators falling prey to violent and/or armed conflict to getting actively involved at varying lengths in processes of justice and/or peace. Their participation has also extended to exerting an increasing influence on political and democratic processes related to armed or diplomatic intervention in armed or violent conflicts, both at the national and international levels. Many governmental players, formal diplomacies, as well as national and international organizations have not concealed their misgivings as they watched these developments, often perceiving them as invasive of a turf which ‘does not belong’ to victims or civil society, but rather only to those “with the knowledge and expertise” and those “who count.” On the other hand, many other governmental players, formal diplomacies, as well as national and international organizations follow this process with careful attention and even foster this development within the periods of time and frameworks that institutions and civil society have agreed on.

It is not my intent to be exhaustive, but with regard to Spain[1] and other countries with Roman-Germanic or continental justice systems which to varying degrees allow for victims to participate and be legally represented in processes of justice, it is worth highlighting the decisive involvement and intervention shown by Argentina’s ‘Madres y Abuelas de la Plaza de Mayo’; by Spanish, Argentine and Chilean victims; Spanish and Guatemalan Maya victims; Catalonian, Spanish, Rwandan and Congolese victims; Tibetan victims; Palestinian victims, etc – all of them with regard to their roles in articulating, presenting, investigating – and even filing formal charges – in processes of universal justice in application of current international law. In turn, given the practices of the Nuremberg and Tokyo Trials, or of ad-hoc Courts for the former Yugoslavia and Rwanda, or of other mixed courts, most of which were inspired on the Anglo-Saxon system of justice where the intervention or legal representation of victims is deemed unthinkable, the new International Criminal Court has created a new system of justice. A hybrid between the Continental and Anglo-Saxon systems, this new system marks the first time ever that an international court offers victims[2] the real possibility of participating and having legal representation –albeit in a more restricted way than in continental national systems of justice.

[1] .- See Articles 101 and 270 of the Criminal Procedures Act in agreement with Article 23,4 of Spain’s Organic Law of the Judiciary (L.O.P.J.) concerning international crimes mentioned there. For a more detailed analysis of the established rule and of universal justice trials featuring the involvement of victims in different countries; see Martínez, 2008, Pages 10-11; as well as Palou-Loverdos, 2007, Pages 60- 63.
[2] .- See Articles 68, 69 and concordant articles of the Statute of Rome of the International Criminal Court and Rules 63, 85 and concordant rules of the Rules of Procedure and Evidence of the ICC, as well as Article 42 and concordants of the Regulation of the Trust Fund for Victims (http://www2.icc-cpi.int/NR/rdonlyres/0CE5967F-EADC-44C9-8CCA-A7E9AC89C30/140126/ICCASP432Res3_English.pdf)
(June 4 2009 search). 108 countries have signed the ICC’s Statute of Rome, 30 of them are African nations, 14 are from Asia, 16 from eastern Europe, 23 nations are from Latin America and the Caribbean, and 25 nations are from Western Europe and elsewhere.

Pennsylvania State University
Larry Catá Backer

At the start of the 21st century, harmonization has become a more complicated enterprise. Harmonization is currently proceeding simultaneously along a number of different lines—horizontal, vertical and inter-systemic. Horizontal harmonization occurs between state entities roughly similarly situated within hierarchies of authorities—for example between the states of the United States, between the Member States of the European Union, and between states in the global community. This describes the great project of comparative law with its origins in European 19th century notions of the state. Vertical harmonization, harmonization between superior and inferior political entities—is less well developed and there is no real consensus about its utility or legitimacy. This describes the great 20th project of legal internationalization—and of the fundamental change in the understanding of the state—now deeply embedded within an increasingly managed community of states. The move toward internationalization of standards and certain behaviors—corruption, human rights, war—has become an important element of global and transnational governance. Transnational constitutionalism represents a form of customary practice vertical harmonization—the recent constitutional crisis in Honduras provides a recent example of the development and growth of this form of harmonization. The most controversial form of harmonization is the most interesting and potentially far reaching—harmonization public and private governance systems. States operating as private enterprises in economic markets, economic entities serving as substitutes for the state in weak governance zones suggest the context in which public and private governance systems remain autonomous but communicate and converge. The management of that convergence, communication and interaction will serve as one of the great challenges for governance in this century. The construction and management of inter-relations between public and private governance communities and the move from law to extra-legal systems of behavior control will serve as the great project of the 21st century. As a consequence, the greatest challenge for law in the 21st century is to avoid becoming irrelevant in an emerging global governance order in which corporations use contracts to regulate their supply chains, states reconstitute themselves as private market actors, and private enterprises assert regulatory control of markets through authoritative systems of assessment and rating.

University of Barcelona
Eva Andrés Aucejo



La ofensiva más fuerte contra los paraísos fiscales la puso en marcha el G-20 el año 2009 ante la evidencia de que los llamados “tax heavens” habían desempeñado un papel fundamental en la financiación, preparación y posterior ejecución de los actos del 11.S y también en el estallido de la última crisis financiera.

Por ello , la OCDE puso en práctica importanes medidas para combatir las prácticas fiscales perjudiciales. Entre ellas, se estableció que la falta de intercambio de información tributaria entre los Estados era uno de los criterios básicos que podía conducir a prácticas fiscales prejudiciales.

En épocas recientes (2009-2010) muchos Estados considerados como paraisos fiscales están firmando acuerdos bilaterales denominados “tax information exchange agreements (TIEAs).

Dichos acuerdos son un instrumento muy importante para conseguir cooperación en cuestiones fiscales a través del intercambio de información entre estados que históricamente han sido considerados como tax havens o secrecy jurisdictions.

Dichos acuerdos se realizan siguiendo el Modelo de Convenio de la OCDE: Model Agreement on Exchange of Information in Tax Matters (TIEA)

The OECD Model TIEA was developed by an OECD Working Group consisting of the OECD Members and delegates from Aruba, Bermuda, Bahrain, Cayman Islands, Cyprus, Isle of Man, Malta, Mauritius, the Netherlands Antilles, the Seychelles and San Marino.

The Model TIEA provides that the Parties shall give “information that is foreseeably relevant to the determination, assessment and collection of such taxes, the recovery and enforcement of tax claims, or the investigation or prosecution of tax matters.”

Los últimos acuerdos firmados en el mundo han sido:
- Germany- Turks and Caicos Islands (4 June 2010)
- Germany- Caymand Islands (27 May 2010)
- Netherlands – Liberia (27 May 2010)
- Norway – Antigua and Barbuda (19 May 2010)
- Norway – Dominica (19 May 2010)
- …
- Sweden – Dominica (19 May 2010)
- Sweden – Saint Lucia (19 May 2010)
- etc

The stronger offensive against “tax heavens” put up the G-20 in 2009, to the evidence that so-called "tax heavens" had played a key role in the financing, preparation and subsequent execution of acts of 11.S and also in the outbreak of the financial crisis.

Therefore, the OECD implemented significant measures to combat harmful tax practices. Among them, it was established that the lack of exchange of tax information between the States was one of the basic criteria that could lead to tax practices referred.

In recent times (2009-2010) many Countries considered as “Tax havens” are signing bilateral agreements called "Tax Information Exchange Agreements (TIEAs).

These agreements are an important tool to get cooperation in tax matters through exchange of information between states that have historically been regarded as tax heavens or secrecy juridictions.

Such agreements are made according to the Model Convention OECD: “Model Agreement on Exchange of Information in Tax Matters” (TIEA).

The OECD Model TIEA was developed by an OECD Working Group consisting of the OECD Members and Delegates from Aruba, Bermuda, Bahrain, Cayman Islands, Cyprus, Isle of Man, Malta, Mauritius, the Netherlands Antilles, the Seychelles and San Marino.

The Model TIEA provides that the parties shall give “That information is foreseeably relevant to the determination, assessment and collection of such taxes, the tax recovery and enforcement of Claims, or the investigation or prosecution of tax matters".

The recent agreements signed in the world have been: - Germany-Turks and Caicos Islands (4 June 2010) ; - Germany-Caymand Islands (27 May 2010): - Netherlands - Liberia (27 May 2010): - Norway - Antigua and Barbuda (19 May 2010) ; - Norway - Dominica (19 May 2010): - ... : - Sweden - Dominica (19 May 2010): - Sweden - Saint Lucia (19 May 2010): - Etc.

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