Charles Zhen Qu* and Björn Ahl**
(2008) Oxford U Comparative L Forum 4 at ouclf.iuscomp.org | How to cite this article
In the recent Trihotel case, the German Federal Court of Justice has substantially modified its previous position on lifting the corporate veil, by which shareholders can become liable towards company creditors. The present case note argues that the tort-based new approach will not only afford company creditors with adequate protection but also direct German company law jurisprudence towards a greater regard for fundamental principles of company and insolvency law.
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Mathias M. Siems*
(2007) Oxford U Comparative L Forum 4 at ouclf.iuscomp.org | How to cite this article
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Guy E. Carmi*
(2007) Oxford U Comparative L Forum 2 at ouclf.iuscomp.org | How to cite this article
This Article challenges the use of human dignity as an independent free speech justification. The articulation of free speech in human dignity terms carries unwarranted potential consequences that may result in limiting free speech rather than protecting it. This possible outcome makes human dignity inadequate as a free speech justification.
This Article also demonstrates why articulations of the rationales behind the argument from dignity are either superfluous, since they are aptly covered by the argument from autonomy, or simply too broad and speech-restrictive to be considered free speech justifications. As a matter of principle, the nexus between freedom of speech and human dignity should be construed as inherently contentious.
This Article combines theoretical and comparative analyses to demonstrate why European and other Western democracies are more susceptible to the use of human dignity, both in their constitutional doctrines and as a speech-restrictive term. Current American scholarship regarding dignity as a free speech justification neglects to recognize the harms of such discourse in a non-American setting, as well as in the United States. Thus, unintentionally, advocates of free speech may actually promote a justification that eventually will lead to speech restriction. For these reasons, the Article warns that inserting human dignity into the realm of free speech justifications may be analogous to inserting a “Trojan Horse,” with human dignity as “the enemy from within.”
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(2007) Oxford U Comparative L Forum 1 at ouclf.iuscomp.org | How to cite this article
This article discusses, by reference to Scotland, the problems of codifying a mixed system of private law, presenting an outline of some parts in a draft civil code. A civil code must resolve divergence between Civil Law and Common Law concepts. Such divergence is demonstrated here by reference to the conceptual conflict between the Scots (Civil) law of error and the English (Common) Law of misrepresentation. The article outlines how codified provisions in this area might be drafted. It discusses the German, French, Swiss and Austrian rules (the last being remarkably similar to Scots law), and offers possible Common Law and Civil Law-style codifications of the Scots law of error. As Scots statutes follow the Common Law drafting style, it is argued that they are unsuitable for comprehensive codification. A code in a Civilian style, on the other hand, requires the adoption of Civilian statutory interpretation, but as this is inconsistent with Scots legal culture, the final question raised is whether codification of Scots private law is desirable at all.
(2006) Oxford U Comparative L Forum 4 at ouclf.iuscomp.org | How to cite this article
(2006) Oxford U Comparative L Forum 3 at ouclf.iuscomp.org | How to cite this article
The protection of the rule of law requires that the international criminal justice system focus on two key elements: (i) the substantive objective of ending impunity by bringing war criminals to justice, and (ii) the procedural objective of ensuring a fair trial. The prosecutorial bias inherent in the institutional designs of the international criminal tribunals for the former Yugoslavia and for Rwanda, and the International Criminal Court (ICC), poses a serious challenge to the individual’s right to a fair trial. In addition to an independent judiciary and prosecution, the international criminal justice system requires an independent legal profession (including both defence and victims’ counsel). The incorporation of a “third pillar” will help to legitimize the new justice system and strengthen the rule of law by providing a formal voice for lawyers and enabling the protection of individual rights. In the same vein, the international community’s commitment to democracy in post-conflict states should include strong measures to protect the institutional, legal and political independence of lawyers.
(2006) Oxford U Comparative L Forum 2 at ouclf.iuscomp.org | How to cite this article
(2006) Oxford U Comparative L Forum 1 at ouclf.iuscomp.org | How to cite this article
Mohammed Saif-Alden Wattad**
(2005) Oxford U Comparative L Forum 5 at ouclf.iuscomp.org | How to cite this article
You may freely eat of every tree of the garden; but of the tree of the knowledge of good and evil you shall not eat, for in the day that you eat of it you shall die.***