The development of modern corporate law can be located in four “origin” legal systems: France, England, Germany and the United States (specifically in leading State Jurisdictions such as New York, New Jersey and Delaware). These systems are often segregated between an Anglo-American “outsider” system of corporate law and governance and the Continental “insider” system. This has its political economy parallel in the “Varieties of Capitalism” literature, which separates the major capitalist economies into “Liberal Market Economies”, such as the UK and the USA, and “Co-ordinated Market Economies”, such as Germany. These distinctions concentrate, in particular, on whether the system of corporate finance is based on open stock markets and widely dispersed “outsider” shareholding, as in the Anglo-American model, or on finance carried out by “insider” universal investment banks with places on the supervisory organs of corporations as is often claimed to be the case for the German system.

By October 2013, the German Law Journal, published monthly and available at no cost on the Internet – www.germanlawjournal.com – counted approximately 1593 publications, authored by approximately 1.450-1.500 authors. A journal project of such magnitude in itself could certainly not have been expected by its founders. Just as unlikely it would have seemed to them or anyone else, for that matter, that their little, bi-monthly email newsletter, originally entitled “Momentaufnahme” (Engl.: snapshot; French: glimpse d'oueil), would grow into a web-based, peer-reviewed legal periodical with more than 13.000 registered subscribers worldwide and a sizable journal ranking among existing international law reviews. If I only had a moment to express my thoughts on leaving the Journal, I would use it to express my immense gratitude to those whom I can never thank enough. My colleagues in this project, present and former members on the editorial board, and the authors, from near and far, many of whom we never had the fortune to meet in person despite an often vivid exchange of thoughts and ideas, as well as, of course, our readers throughout the years – it is to all of them that I owe thanks too comprehensive to measure. It is one thing to launch a journal, it is another for it to be read, sustained, shaped and encouraged over the span of almost fifteen years. The GLJ is what it is today because of the input it has received over all this time, and for that I am immensely grateful.

Over the summer of 2012, the pending verdict of the German Federal Constitutional Court (FCC) was a topic of much speculation not only in Germany and in the European Union (EU), but also on the international level. Christine Lagarde, the managing director of the International Monetary Fund (IMF) was quoted as threatening to leave a meeting, were she to hear again “Bundesverfassungsgericht.” That decisions of a German non-majoritarian institution have such transnational repercussions while being guided by German laws and national considerations is nothing new. The Bundesbank's D-Mark rule was comparable and effectively pushed the introduction of the euro along. But also previous landmark rulings of the FCC on European integration raised cross-border attention, given that the Constitutional Court has the final say on German politics, and the biggest member state and economy of the EU can hardly be ignored. Moreover, being one of the most powerful constitutional courts in Europe, and certainly the one whose judgments receive most attention, rulings of the FCC are not only often cited but may also serve as a role model for other constitutional courts. Protest coming from this angle may therefore multiply.

In March 2000, the Lisbon European Council agreed upon a new strategic goal for the European Union: to become the “most competitive and dynamic knowledge-based economy in the world, capable of sustainable economic growth with more and better jobs and greater social cohesion.” One decade and the sobering experience of a global economic crisis later, the European Commission's new 2020 Strategy sets out a vision of Europe's social market economy for the 21st century that “shows how the EU can emerge stronger from the economic crisis and how it can be turned into a smart, sustainable and inclusive economy delivering high levels of employment, productivity and social cohesion.” If somewhat more modest in its targets, Europe 2020 reiterates the guiding ambition to enhance the EU's economic performance in the internal and global market that already dominated the Lisbon strategy. The lesson learned from Europe's “lost decade” is that the EU needs to replace the “slow and largely uncoordinated pace of reforms” with a “sustainable recovery” in order to regain its competitiveness, boost its productivity, and put it on “an upward path of prosperity.” This is, then, the EU's first “Lisbon” agenda that heavily relies on the internal market and that depicts social inclusion and political stability as conditioned upon further European economic integration. The recipe to defy what has grown from a “merely” economic crisis into a social and political crisis of the Union and its Member States is a combination of “smart,” “sustainable,” and “inclusive” growth.

This special issue of the German Law Journal is devoted to the ideas of regeneration Europe, an initiative that calls for a new normative paradigm for the European Union. At its very core, regeneration Europe argues that the European Union should be more European and that it should more firmly reflect the European modus operandi of society. While it is unmistakable that the European Union is experiencing a crisis of identity—among the many other types of crisis that the contributions to this special issue highlight—it is hardly controversial to state that Europe is more than a market, more than an incipient political community or fiscal union. To its citizens, Europe is, first and foremost, a tangible reality. The difficulty in describing the Union's normative texture, or the “nature of the beast,” as legal scholars particularly enjoy doing, does not reduce its tangible reality. Cultural diversity, political pluralism and individualism do not necessarily presume self-referential indecision. As Jonathan Franzen wrote on the indeterminacy of the US cultural framework:

It is commonplace in current legal scholarship that pay packages for executives that were not tied to the impact of these executives' policies on shareholder wealth maximization often caused harm to shareholder interests and their companies, especially in the long term. The no-pay-without-performance postulate is as old as the first global economic crisis of the 20th century – the deep depression. Since then, this postulate has been repeated and substantiated innumerous times by the majority of experts in corporate law and business economics, but without real success. There are, however, commentators who deny the existence of a link between skewed incentive pay, excessive risk-taking, and financial losses. They instead insist on the superiority of the traditional director-centric model of corporate governance, which would allegedly preserve the balance that has generally worked well between the limited role and limited liability of shareholders and the active role, fiduciary duties, and potential liability of managers, which allegedly renders additional executive pay regulation unnecessary.

The shortcomings identified in German bribery law—such as the limited criminalization of bribery of parliamentarians and other members of domestic assemblies, coupled with the absence of trading in influence offenses, and furthermore, certain limits in the criminalization of bribery of foreign and international officials and of private sector bribery—represent significant lacunae in the law.

The revival of the political constitution has come about in parallel with two developments, one in constitutional practice and the other in political theory. With regard to the former, the political constitution has been seen as something of a bulwark against the rise of legal (or judicial, or common law) constitutionalism. The seeming hegemony of this latter model of constitutionalism among contemporary lawyers and political scientists has produced from (so-called) political constitutionalists a reaction against the delegation of important decisions to non-political institutions and an obsessively court-centered scholarship. Perceiving this shift in focus from political to legal institutions to be the very antithesis of the traditional Commonwealth (more particularly, of the United Kingdom's parliamentary) model of constitutionalism, and, more broadly, to be an affront to democratic sensibilities, the notion of the political constitution was retrieved and defended in a seminal article in the 1979 edition of the Modern Law Review, written (though first delivered in his Chorley Lecture the previous year) by the late John Griffith. More recently, in the work of Adam Tomkins, Richard Bellamy, and Grégoire Webber and Graham Gee, a normative interpretation has been lent to Griffith's thesis so as to provide a full-fledged constitutional theory capable of standing as an alternative to the liberal-legal paradigm—a turn, one might say, from the political constitution to political constitutionalism.

A shareholder vote on executive compensation, the so-called “say on pay”, has become one of the most prominent corporate governance tools for regulators in their urge to tackle excessive executive remuneration. Its implementation in the United Kingdom in August 2002 has triggered–not least because of a Recommendation of 2004 by the European Commission–a broader discussion of this instrument which gradually led to the adoption of related rules throughout Europe. In Germany, a “say on pay” was enacted by the German Parliament (Deutscher Bundestag) as part of the Act on the Appropriateness of Management Board Compensation (Gesetz zur Angemessenheit der Vorstandsvergütung–VorstAG) on 18 June 2009, it passed the second chamber of the German Parliament (Deutscher Bundesrat) on 5 July 2009 and was promulgated in the legal gazette (Bundesgesetzblatt) on 31 July 2009. The new law became effective on 5 August 2009. In the meantime, the United States also enacted provisions with respect to a shareholder vote on executive compensation. The Dodd-Frank Wall Street Reform and Consumer Protection Act, often only referred to as the “Dodd-Frank-Act”, introduced a mandatory, non-binding “say on pay”, as well as a more specific shareholder vote on payments in the context of a change of control (“golden parachutes”). The SEC recently adopted rules in order to implement these provisions.

This article explores the most recent practice, as exemplified by the case of Kosovo, concerning succession to treaties in international law. In doing so, it examines the precise meaning and legal effects under international law of relevant provisions of the Declaration of Independence (DoI) of Kosovo with respect to international treaties concluded by the United Nations Interim Administration Mission in Kosovo (UNMIK) and the former Socialist Federal Republic of Yugoslavia (SFRY) or, as applicable, any other predecessor entity. More specifically, the aim is to identify and comprehend the fundamental principles underlying the existing or developing practice of treaty succession, and to situate it within a broader framework of succession in international law. Kosovo's absence from key multilateral regimes, in particular the United Nations, dictates a focus on succession to bilateral treaties. Kosovo is in the process of establishing with its partners the status of its bilateral treaties undertaken by way of succession.

In Greek mythology, King Sisyphus becomes a prisoner of inevitability, existentially condemned to roll a boulder up a hill for the sake of seeing it roll back down immediately. His sense of desperation and futility is reminiscent of Europe today. It has become a prisoner of the circularity of stabilizing inherently unstable markets. And each cycle exacerbates the dominance of the economic over the political, the erosion of democratic paradigms, the indifference of citizens, and the divorce between social reality and its political translation. Political discourse is suspended while “technocrats” redistribute societal resources and aspirations in the name of economic necessity. And we, the Europeans, are sidelined and numbed by the repetitive talk of austerity and economic stability, EFSF and ESM, financial leverage and institutional reforms. All presented as inevitable for the health of the market, as a bitter medicine required to cease the pain. Needless to say, it will not; the pain is systemic.

Some years back, Philip Alston argued that processes of globalization, such as the privatization of state functions and the deregulation of private power, while purportedly value-neutral, have “acquired the status of values in and of themselves.” The market is increasingly seen as “the most efficient and appropriate value-allocating mechanism.” As a consequence, human rights become subjected to a litmus test of their “market-friendliness.” As Alston puts it:

The European Council of Lisbon (December 2000) formally adopted the Open Method of Coordination (OMC) as a means to implement the Lisbon Strategy, a package of policies aimed at promoting economic and social innovations in the member states. The Open Method of Coordination is a means of governance based on the cooperation of member states. The formal introduction of the OMC, based on policy coordination at European level in order to induce change in national policies, triggered a lively scholarly debate on the role of new modes of governance in the EU. New modes of governance are roughly defined as non-hierarchical forms of political steering that rely on policy coordination among a multitude of institutional actors and across government levels. Scholars have coined a variety of terms to capture the characteristics of these governance modes, such as soft modes of governance, network governance, multilevel governance, experimental governance or, as we call it here and elsewhere, innovative governance. Despite the wide variety of terms, scholars hold several assumptions in common. Thus, most scholars assume that new modes of governance have only recently emerged. Furthermore, they assume that such modes of governance particularly emerge in policy areas where the Union lacks competences, while some form of common action is needed. Finally, many scholars take it for granted that non–hierarchical modes of governance result in weak impacts.

Sometimes less is more. Hence, it is not necessarily bad news if a judgment on a matter of fundamental public interest does not meet public expectations. And it certainly was not bad news that the judgment of the German Federal Constitutional Court of 12 September 2012 on the European Stability Mechanism (ESM) and the Fiscal Treaty did not meet the exaggerated public expectations that had been fuelled by an unprecedented media-hype.

Why do fundamental rights and market freedoms attract and repel each other? Why can they neither be together nor remain separate? This paper argues that at least part of the explanation is that they are each governed by different types of “logic.” They are at the fault-lines of different discourses. Market freedoms are promoted in a technological discourse, fundamental rights in a teleological discourse. The former are expressed in an observational view from above, while the latter embody the view of a first-person agent. Travelling back and forth between these two discourses, as legal authorities like the European legislator and the Court of Justice of the European Union (CJEU) often have to do, is an ambiguous enterprise. It may create opacity, but it may also bring clarity to the otherwise muddy waters of a “common” (now: “internal”) EU market under capitalist conditions. Much is dependent on their ability to orientate themselves on a map that recognizes the poles of these discourses, technology and teleology. This paper contributes to drawing that map through analysis of a case study in patent law involving the concept of an embryo. Construed as “an autonomous concept of European law” the notion of an embryo will appear to be paradigmatic of alternative ways in which the two discourses may relate to each other.

The first part of this paper examines the nature and form of the political constitution, and argues that traditional approaches to its scope and purpose are too narrow in focus: The political constitution is about enabling and empowering government, as well as containing and constraining it; it is also predicated upon a body of core and indeterminate political freedoms (albeit frequently submerged and often displaced). The second part of the paper examines three contestable assumptions about what some claim to be a move from a political to a legal constitution. The first relates to the widespread (but flawed) ideological understanding of the political constitution; the second relates to the capacity of the “legal” to resist capture by the “political;” and the third relates to the effectiveness of the legal to protect political freedom. An attempt is made throughout unusually to illustrate argument with evidence, in this instance about the resilient political constitution.

In this paper, I put forward four theses and one coda. The theses can be summarized as follows:

The law is a living organism, which is reflected by the ever-evolving landscape of international criminal law. Time and again, conflicts demonstrate the many ways in which human beings can hurt each other. The law must be able to anticipate and react to these cruelties. On the one hand, the law must be specific enough to assure legal certainty and prevent arbitrary convictions; on the other hand, it must be broad and general enough to keep up with developments in real life and cover previously unimagined behavior. Forced marriage is an example of such a criminal phenomenon, which, even though the taking of brides by the victor has for centuries been a common occurrence during conflict situations, has only recently appeared in the international limelight. When the international community is confronted with criminal practices that are not codified in the Rome Statute of the International Criminal Court, it is faced with the daunting task of legally characterizing this conduct: can the act in question be brought within the ambit of the core crimes of the Rome Statute? And if so, how is it best criminalized: as a war crime, a form of genocide, or a crime against humanity?