Operating international law in a global context: presentation of a three steps method.
The operation of international law, in the variety of global legal situations, has its own dynamism. It cannot result from the mere application of a method or a legal solution at a given moment, in a predetermined space and on a predetermined level, by a duly identified actor. It must be grasped in one movement. In a single situation, several laws must sometimes be mobilised, alternatively, cumulatively, at the same time or at different moments, in one or several spaces or on one or several levels, by one or by multiple actors. This distinctive dynamic, which the lawyer must be conscious of when passing from one context--national, international or European--to another, has an influence over the law, its uses and, sometimes, its content. This article is a general presentation of a three steps method: comparison, combination and hierarchization of the operations of the law in the national, international and European contexts.
In a globalised environment, the expression 'global legal pluralism' (3) refers to a particular form of legal pluralism brought about by the phenomenon of the globalisation of law and its different forms (transnationalisation, standardisation, fragmentation, regionalisation, etc.). Although this pluralism has not escaped from forms of domination, it describes the multiplication of the sites of the application of international law which appear outside of, or transcend, the strict state model.
International law does not only operate within a single sphere. It results from the particular activity of national, international and regional organisations, notably European, whether they have a state origin (United Nations (UN), World Trade Organisation (WTO), International Labour Organisation (ILO), World Health Organisation (WHO), World Intellectual Property Organisation (WIPO), European Union (EU), International Court of Justice (ICJ), Permanent Court of Arbitration (PCA), International Centre for the Settlement of Investment Disputes (ICSID), the European Court of Human Rights (ECtHR), etc.) or a private origin (non-governmental organisations, multinationals, professional associations, etc.). The national context, which also features forms of legal pluralism, has not disappeared. But it coexists with the legal methods and solutions applied in the international or European context. The process of operating international law in a context of global legal pluralism is distinctive. The law applied develops, in a variety of global legal situations, its own dynamism. It cannot result from the mere operation of a method or a legal solution at a given moment, in a predetermined space and on a predetermined level, by a duly identified actor. It must be grasped in one movement. For one situation, several laws must sometimes be mobilised, alternatively, cumulatively, at the same time or at different moments, in or on one or more spaces or levels, by one actor or by multiple actors.
When approaching the question of how to operate the law in the national, international and European context, the lawyer may choose to place him or herself prior to the application of international law to try to develop legal constructs that may allow them to face the difficulties raised by global legal pluralism. Legitimate and admissible as it may be, this approach is not the one that underpins this article. Two principal reasons motivated this choice. The first reason is particular to the phenomenon studied. The treatment by the lawyer of the, ever more frequent, situations in which several laws formulated in a national, international (UN, WTO, WIPO, ILO, WHO, ICJ, PCA, ICSID, International Criminal Court) or European (EU, ECHR) environment may be applied together to a given case, has developed considerably over the last thirty years. Without being entirely novel, this phenomenon has incontestably attained previously unequalled amplitude. Have we, as lawyers, fully grasped the importance of this development? Do we know, if not all, at least the principal situations that give rise to this applied global legal pluralism? An effort of description is an indispensable prelude to any conceptual analysis of the phenomenon of global legal pluralism. This, in any case, is our hypothesis.
The second reason, which has driven us to prioritise a practical analysis, relates to the observation that, in spite of the considerable efforts deployed by applied global legal thought to address the transformations of the world in which it is evolving, the operation of the (international) law in a global context remains, to this day, unamenable to any general and abstract explanation. Although this may change in the future, we do not see and, to tell the truth, we do not believe in the emergence of any analysis--a theory for example--which will allow all global legal actors to grasp, through the (no doubt limited) methods and solutions already posed, the variety of cases of applied global legal pluralism.
In order to do so, we must tackle the many difficulties the lawyer faces when applying these methods and solutions. This reversal (or to put it more modestly, this shift) can be achieved principally by reference to 'objects of law'. This is clearly the route taken by one research centre (4): global law has the potential to give rise to unidentified legal objects' (ULO) that the lawyer tries to explain by using a 'pragmatic approach' which allows them to grasp them as they are, without passing through the preliminary definitions of the type used by those who use an 'apriori' approach.
We have chosen another manner of taking an 'a posteriori approach' to applied global legal pluralism. We propose to focus on the work of the lawyer when they apply international law in different national, international and European contexts. How does the lawyer use the law when they are confronted with these different contexts? How does this plurality of contexts affect their manner of applying the law?
This lawyer could take a variety of different forms. We could limit our scope to the figure of the judge, master of the interpretation of the law, or think of legal academics, the defenders of scholarly law, or single out, for example, the family of lawyers in a national country, the community of lawyers working within a European institution or, finally, those lawyers who operate within global structures.
All of these definitions are acceptable. What matters is the practice of law by the lawyer, which is to say, their pursuit of a result. Whether they work independently (a barrister, a consultant, a magistrate, a solicitor, a professor) or under the authority of a public institution (administration) or is subordinate to a private body (non-governmental organisation, company, union, association), they are most often (which is not to say always) guided by the pursuit of a goal: the formulation of a rule, a decision, an argument, an analysis and even of a theory (be it the 'purest' or most objective one), etc.
This eternal quest for a result by the lawyer is largely conditioned by the context--national, international or European--in which they apply international law. The expression 'national, international and European context' refers to the legal environment in which the lawyer approaches a case.
This environment may be essentially permeated by national law. This is the lot of the vast majority of lawyers who work in a purely domestic context. But it is also the lot of the international private lawyer when they apply a national law or refer to a state judge designated by a connecting rule. This internal law applied by the lawyer is not only composed of hard law, deliberately formulated, or 'laws' in the legalistic sense of the word. We can also find in it the trace of revelatory law, spontaneous law or soft law, for example. The international context concerns the lawyer's application of legal methods and solutions of an international dimension. This is the lot of international lawyers, public or private, when they put in motion legal mechanisms adapted to international situations. These mechanisms can have a formal international dimension (an international treaty, an international custom, a procedure before an international court). They can also have a material international dimension (for example, a national law destined to apply specifically to international situations: rules of conflicts of law or of jurisdictions, substantially international material rules such as, for example, a French legal rule of international public order, etc.). This applied international law sometimes has a transnational dimension. It is not the fruit of the labour of states but results from the practice of non-state actors in resolving specific situations.
The European context concerns the lawyer's application of a law formulated in a legal environment with a European dimension. Two large European organisations aim to create law in this way: the European Union and the Council of Europe (with, under the auspices of the second organisation, the unique position occupied by the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and its court, the European Court of Human Rights (ECtHR)). The European judge who applies European law every day (which can take the shape of any of the forms of law indicated further above) is thus immersed in the jurisdiction of a law which often asserts itself through its (relative) originality compared to the constructs defined in the national and international context.
These three contexts are evidently not isolated from one another and the lawyer can, through a simple trick of the mind, pass from one context to another, as certain actors occupy wholly ambivalent positions (5). But they do exist in themselves. Each has its own legal language, its rationality, its institutional or material tools.
Now applied global legal pluralism allows us to pose the question of how the lawyer can apply international law, not only in the context that forms his usual sphere of activity, but in other contexts. What tools does the lawyer use when he considers how to apply the law in a legal environment other than his own?
In order to distinguish between these three contexts, national, international and European, it is sometimes useful to speak of the 'level of application of law'. This expression does not have a strong theoretical value. It is not meant, notably, to designate a global legal order in which one level of application of law is placed immutably and definitively under the authority of another. But it is sometimes enlightening. It allows us, in effect, to envisage the hypotheses in which it is possible to approach a case successively at different stages--national, international or European--of law.
This superposition of levels (to which one could add others: local, regional, federated, federal, inter-regional and, perhaps one day, inter-planetary, etc.) takes into account the differences that characterise the manner in which international law is applied in distinct contexts. The legal methods and solutions deployed on a national level to tackle legal cases are not the same as those deployed on an international or European level. It matters little that a legal rule drawn from national law (a piece of internal legislation), international law (an international treaty) or European law (a piece of European secondary legislation) can sometimes apply on these different levels. What matters is the legal environment in which that application is considered by the lawyer. If there are several, the lawyer must show him or herself to be capable of renewing their analysis every time it develops in a new environment.
We have decided to take into account the multiplicity of contexts when applying international law: national, international and European. For that, we propose to develop a three step method : the comparison of the application of international law in the different contexts, to then perhaps (the approach is not inflexible) the combination of these applications, notably if they allow a different result to be attained than that obtained in each of the contexts individually, knowing that the lawyer potentially has the option of deciding, at any moment, to choose the application of the law in one context, rather than another : the hierarchization.
II The comparison step
In a general sense, comparison is thus the first step that the lawyer must overcome in order to attempt to operate the law in the national, international and European contexts. Confined to the mere study of national laws and an exercise of pure knowledge, 'comparative law' deserves to be given a broader meaning in a perspective of applied global legal pluralism. (6)
The comparison of national, international and European law involves, in effect, a potential re-examination of the whole of the methods and solutions that may be called upon when dealing with a case or legal situation. It demands an investigation of the manner in which international law may be applied in a national, international or European environment. This examination is a necessary first step. It, in effect, allows the lawyer to fully grasp the similarities and differences that characterise the application of the law in contexts that are national and international as well as European.
According to the context, law may not necessarily always be interpreted or applied in the same manner. At the stage of multilevel comparison, it is essential to determine the influence exerted by the national, international or European legal environment on the international legal methods or solutions under consideration. This process can reveal many things: exposing strong differences or, on the other hand, the presence of great similarities, bearing in mind that situations sometime change.
In order to illustrate this point, it may be interesting to examine the significance of a given word in the triple national, international or European context. Sometimes we find, in effect, that an expression used very commonly to convey one meaning on one level of application of the law does not have the same meaning at all on another level. We can take one illustration with the term 'constitution. Used in domestic law to refer to the fundamental law, that which establishes the authority of the State (for example, the French Constitution of 4th October 1958 which established the Fifth Republic), the term constitution and its derivatives have gradually gained ground in international and European context in the name of 'constitutional pluralism' (7). The borrowing of a piece of vocabulary specific to the national context by these two levels of law is not uncontroversial. In international context (8) as in European context (9), it gives rise to two types of discussions on the aptitude of the expression to move from one level to another and on the transformations that such movements induce in the true meaning of the word.
The sometimes problematic migration of legal vocabulary and concepts between different levels demonstrates that one must always be very careful when applying a legal method or solution outside the context in which it was developed. A law formulated in a national, international or European context may, when applied in another context, be confronted with a different legal environment. This difference in context must be taken into account at the stage of comparison. To apply a law on another level is to be obliged to compare potentially different contexts. European law is particularly favourable to this type of analysis.
Thus one may envisage two cases representing a European law approach out of its usual context. The first one is taken in the manner by which a European regulation could be projected on to private law constructs of an essentially national origin. (10) An European Research Council programme, (11) among other things, highlighted the necessity of mastering the legal context of a European legal text before attempting to extrapolate it to another level, in this case domestic private law. In effect, every provision of European secondary law must conform to the Treaties (Treaty on the European Union--TEU--and Treaty on the Functioning of European Union--TFEU) which constitute their legal basis.
If, for example, a law infringes the free movement of goods within the European economic area, it must be justified by the pursuit of an objective in the general interest allowed by the treaty (12) as interpreted by the Court of Justice in its case law. (13) The regulation mentioned above is not exempt from this rule, and this is why it must first be understood as having the aim of reconciling the principle of freedom of movement with the imperative of the protection of public health. Situating the text in the context of the European internal market also helps us to understand why the consumer is considered in a process of market regulation. If the regulation does not distinguish, for example, between a contracting consumer and a non-contracting consumer, if it seems to state that once the consumer has been informed, he or she becomes responsible, this is because European law is trying to define the status of the European consumer as an independent economic agent, the same as a professional operator. But the analysis must be pushed even further. Two important observations must be made in this regard. First, the material and spatial scope of application of the law is extremely wide. The regulation appears to establish a legal framework, it establishes general principles and seems to be a 'basic law' upon which more developed texts depend.
Moreover, although it is not of universal application, we observe that the regulation does not concentrate only on the internal market and that it creates effects both within and beyond the European Union. Now, the extent of its scope of application is not without effect on its normative force. Generally, we observe that the wider the scope of application of a law, the less restrictive it is and, inversely, the more restrictive the law is, the narrower its scope of application is likely to be. (14) Second, it seems clear that the regulation does not aim to construct a private law system for governing food as such. It is too general for this to be its objective. Thus, one must not commit the error of taking European law for something it is not and to apply it, in the national legal order, as if it dealt with the same subject as national legal institutions do. As a law of the European internal market, regulations are different from national law. They coexist with each other. The relationship between regulations and the private law of each Member State is measured less in terms of the influence of European law on national law than in terms of the articulation between European law and national law. This is not the same thing.
The second case concerned the European internal market compared with international rules on free trade. The regional law of the European Union is in part modelled on pre-existing international rules. For example, it is common for European primary or secondary legal texts to take inspiration from older international legal texts. The most remarkable case, without doubt, is that of the provisions of the EEC Treaty of 1957 relating to freedom of movement compared with the, sometimes very similar, provisions of the GATT of 1947 relating to global free trade. (15) These textual similarities must not erase the specificities of each of these legal systems, however. For example, there is an undeniable difference between the legal nature of the case law of the ECJ applying Article 36 TFEU and that of the decisions of the DSB applying Article XX of the GATT. The first is part of a process of legal integration that aims to create a legal community. Thus, it has a strong normative value. (16) The second relates more modestly to the resolution of commercial disputes. The objective is not so much to bring the laws of Member States closer together but to facilitate exchanges between State Parties. (17)
But international law can also be interpreted differently when it is implemented in a different context. To illustrate it, we can take the example of international public order. International lawyers handle the distinction between domestic public order and international public order with great dexterity. Although we may observe the development of a public order of a truly international or regional source, the latter often emanates from the former: a rule of domestic public order, (18) due to its essential character, applies to international situations and thus transforms into a rule of international law. This international public order may be applied in a given national context (19) or European context. (20) This double national or European projection of an international rule puts the plurality of contexts of application that impact on the very definition of public order into perspective. The latter may, in effect, vary depending on what is envisaged in a national, international or European legal framework. Thus, the reference to the operation of a domestic rule of public order (that international private lawyers call a 'publicorder exception) may, according to the context in which the rule in question is applied, refer to a rule defined by the law of the country in which the judge sits (lex fori), to a European legal rule or to a legal rule with a truly international dimension (21).
III The combination step
The step of combining national, international and European laws, for its part, requires the lawyer to assemble the methods and solutions identified by the operation of comparison in order to construct his or her legal reasoning. It may notably be undertaken in the situations in which the circulation of situations from one level of law to another can be observed.
The circulation of situations between the different contexts of application of international law encompasses a range of extremely heterogeneous scenarios. Two types of approaches can usefully complement each other: the intervention of courts on different levels or the application of the law on several levels.
Considered in relation to the application of the law in different contexts (national, international and European), the first and principal vector of the circulation of situations is the mode of intervention of the international and regional courts that coexist with national courts. The circulation of situations is effectively part of the very process through which access may be gained to the majority of supranational courts, which is dominated by the rule of the prior exercise or exhaustion of domestic remedies. Thus, as one author has observed, in certain cases 'the internal judge and the international judge have been known to rule upon the same complaint'. (22) The legal situation is successively analysed by courts located on different levels. The phenomenon of circulation may also be observed on the European level. The preliminary reference procedure of the ECJ and the right of request to the ECtHR allow, according to very different procedures, a legal situation to move from one court to another. Conversely, the phenomenon of circulation between the international and European levels is much rarer. The ECJ jealously defends the principle of its exclusive competence, (23) such that a Member State may not, when the application of European Union law is in question, alternatively summon the ICJ or the European Court of Justice for example. But cases may exceptionally arise in which one situation is presented successively to a national court, then to the ECtHR and, finally, to the ICJ.
In order to illustrate the phenomenon of circulation between the national judge and the ICJ, one may envisage the case, for example, of a State that intends to exercise diplomatic protection over one of its citizens after the exhaustion of domestic legal remedies. This diplomatic protection allows a domestic situation (for example, the recourse of the citizen to the authorities of the foreign State which has taken a measure against them) to be elevated to the status of a truly international situation (for example, an interstate dispute brought before the ICJ). In a scenario of this kind, it is useful to speak of circulation, insofar as the legality of the situation may be successively disputed, notably by reference to national law, before a national court and an international court. (24)
This type of circulation of situations is perfectly common in. the European context in which situations of domestic law are frequently considered successively by the national judge and then by the European judge. This is the case for the great majority of situations brought before the ECtHR after domestic remedies have been exhausted. The same is also true each time a national judge makes a preliminary reference to the ECJ. In these different scenarios, the application of the law is successively considered by the domestic court and then by the European court, and is sometimes referred back to the national court, as in the case of a preliminary reference to the European court or in the case of a re-examination of the situation by a domestic court when such a procedure is exceptionally in place at the national level (25). The concept of circulation thus helps us to understand that situations may be presented successively before different judges, of national or European rank.
The case of a national decision nullifying a European intellectual property right provides an example of circulation from the national level to the European level. The EU created the community trade mark, (26) which constitutes a unique and unitary right to protection in the whole of the European Union. This trade mark is granted by a European agency: the Office for Harmonization in the Internal Market located in Alicante (OHIM). A national court notably has the power to nullify a community trade mark judged to be invalid. (27) A decision to nullify a trade mark taken by a national court affects the whole of the EU. It is publicised at a European level. The legal circulation of the national decision is regulated by European law to avoid the delivery of contradictory national decisions on the validity of a European intellectual property right.
A decision of the ICJ offers, another illustration of the scenario in which a situation has been successively presented to a national court and then, on appeal, to the ECtHR and, finally, to the ICJ, in the context of an interstate conflict. In a case relating to the immunity from jurisdiction and execution enjoyed by Germany, on the subject of actions for compensation and recovery by the next of kin of the victims of massacres perpetrated by the German army in foreign territories during the Second World War, different proceedings were taken at the national (actions by the victims' next of kin before Italian, Greek and German Courts), European (a case taken to the ECtHR by some of the victims' next of kin whose cases had been rejected by the Greek and German courts on the grounds of the immunity of the German State and which was found inadmissible). (28) Even though the situation presented before these three courts (29) was one element among several others of the dispute presented in the case before the ICJ and even though the whole of the proceedings were not considered on the three national, international and European levels, the fact is that it very much illustrates a phenomenon of circulation between the different levels of application of the law and that the actors in question, notably judges, are becoming increasingly conscious of this. This is why the ICJ decided in this case for the second time in its history to refer to the case law of the ECtHR. (30)
The scenario of the circulation of situations between an alternative method of resolving disputes and a state method must be considered separately. The most remarkable case is that of the relationship between international arbitration and State justice. In the international commercial context, arbitration is a form of private justice with its own particular features. It has even been suggested that it constitutes its own legal world. (31) Whether or not one adheres to this theory, the fact is that international arbitration takes place largely outside any State court. This specificity is usually justified by the needs of international commercial law or of international investment law, which calls for less State intervention in economic activities in the national environment, in this context, than is traditionally the case, whether or not the State is a direct party to the operations. This international private justice is regularly confronted with State justice. Encounters between these two forms of justice are regulated by rules established, notably at the national level. In the French context, the Code of Civil Procedure dedicates a whole title to the question. (32) The incorporation of sentences of international arbitration into the French legal order is strictly regulated by the Code. This incorporation operates via circulation: the arbitration decision, exterior to the French legal order, penetrates it via an institutional means and a question may arise as to its recognition by a judge from this national legal order.
The jurisdictional and therefore institutionalised method of circulation of situations between the national, international and European contexts of application of the law is not the only one that must be envisaged. Other, more diffuse, methods can exist. These methods have a very abstract dimension. They represent the mental process through which the lawyer may shift the examination of a case from one national, international or European level to another, without the need for an institutional vector facilitating the move from one level to the other such as those that featured in the previous range of scenarios.
This intellectual shift by the lawyer takes place, most often, through the question of how a legal method or solution conceived in one context may be applied at another level. Circulation here is synonymous with application. It refers to the situation in which a law stipulated in one context is implemented at another level. The nature of this situation differs from the phenomena of the application of laws within each level. In order to describe the application of the foreign law, or the relationships of application between international or European norms, the lawyer does not need to refer to the figure of circulation, apart from in the concrete cases of circulation we have identified above. To the extent that the lawyer remains enclosed within one level of the application of law, we have seen, in effect, that their legal environment does not change. It is always a question of applying a law established at one and the same level: national, international or European. The situation is different in those cases of the inter-level application of law which interest us here, where the lawyer is led to move from one legal environment to another, or to circulate from one environment to the other.
For the purposes of the presentation, we may distinguish two general types of scenario. The first involves the issues of the application of international or European law in the national context and the second, inversely, involves the issue of the application of national law in the international or European context.
The issue of the incorporation of international and European law into national legal orders is perfectly well-known and identified. It has been the subject of conflict between two major theories, the monist theory, which militates in favour of the immediate incorporation of international and European law into domestic law, and the dualist theory, which requires the formal adoption of a statute on the national level allowing for the application of international and European law. These two theories coexist in the legal world, including within countries belonging to the same regional legal space such as those we are familiar with in Europe (the European Union or, more modestly, the Council of Europe). The conflict between these two approaches must not be overstated, however. (33)
These discussions are not irrelevant to the theme of circulation. Whatever the method of reasoning adopted, whether monist or dualist (with their numerous variants), the lawyer cannot ignore the division between the legal systems in question: one at the international or European level, the other at the national level. In order to take this division into account, the intellectual concept of circulation is sometimes useful. International and European laws are meant to be applied by the legal systems from which they originate. They remain 'foreign' laws in the national context. The hypothesis of circulation raises the question of whether the application of international and European law in the national context is dependent on its application in the international or European system. If the answer is yes, the concept of circulation is useful. If the answer is no, it is useless.
Circulation does not only take place in one direction. Although it has not been presented from this angle much before, circulation may be observed from the national level towards the international or European level. The phenomenon is particularly marked in those areas in which an international or European court is called upon to consider the compatibility between the application of a domestic law and the solutions of international and European law. In this case, we are concerned with the issue of the operation of a national law in a context of international or European law. The judge is then led to examine the manner in which the national law disturbs the solutions established in the international or European legal order.
The area in which this circulation is undoubtedly most visible is that of economic rights. The international legal order has created a vast space of free trade endowed with its own rules and institutions (the WTO agreements and the dispute settlement body : DSB). The same is true a fortiori for the legal order of the EU and its institutions (notably the Commission and the Court of Justice) which, for more than sixty years, have pushed the principle of integration towards the construction of a European internal market.
These two legal spaces each function on their own level. It is possible to consider them in themselves, which is to say leaving aside the issue referred to above of their incorporation into national legal orders. This is not to say that national law does not have a place within them. In effect, each time a national law establishes legal solutions that are potentially incompatible with the international or European levels, an international or European institution may be led to consider the impact of the application of a 'foreign' law on its own level, in this case the national law of a Member State. In order to describe the process at work here, the concept of legal circulation is sometimes useful. The application of the national law is examined in light of the constructs of international and European law in order to determine whether it may be tolerated or, on the contrary, judged to be incompatible. The question may thus arise whether the application of the national law is a barrier to global or regional exchanges, incompatible with the rules of global commerce or the European internal market (34).
Another example exists: global circulation and contractual models inspired by the practice of international lawyers and their application in different national contexts. An international programme of research, led by Professor G. Cordero-Moss of the University of Oslo, undertook an analysis of the global circulation of model clauses drawn from the practice of international lawyers. The processes employed and, above all, the effects produced by the circulation of these models, notably when they are confronted by European or national courts, were reviewed. These reveal a great range of solutions, thus destabilising the myth that one contractual model, albeit dominant in the world of international business, can have exactly the same effects in different legal environments (notably in Common Law and Romano-Germanic systems). (35)
The second scenario, more recently studied by lawyers, is that of circulation between the international and European levels. We have already remarked several times that the methods and solutions of international law are increasingly penetrating the European level of the application of law. The reverse is less common. Two major phenomena, already invoked and to which we will return, characterise the propensity of the methods and solutions of international law to circulate in the European context (EU and Council of Europe). The first is the phenomenon of overlap between the different sources of law. The second relates to the case of the mimicry of the methods and solutions present.
These two phenomena interest us insofar as they illustrate well the concept of legal circulation. Overlapping implies, as we have seen, that a law formulated on one level is associated in its implementation with a law formulated at another level to produce a potentially different effect to that which pre-existed on each level. As for cases of mimicry, these reveal a very strong porosity between the different laws and, in particular, the aptitude for European law to be applied with reference to the tools and interpretations of international law by which it has largely been inspired. The relationship between the two legal systems is often complex, as European law willingly marks its independence from international law. But the influence exerted by international law on European law is no less real, thus illustrating a form of circulation between normative spaces.
The activity of the two great European courts yields examples. Focusing only on decisions made between 2007 and 2009 by the two great European courts (CJEU and ECtHR), (36) we have observed that cases of the legal circulation of international law in the European law context proliferate. (37)
The opposite scenario of the application of European law in the international context remains exceptional. International law resists the incorporation of European law, which is doubly marked by its regional and Western dimensions, into the general and global legal space it governs. But sometimes cases arise. We will give the example of legal circulation from the European level to the international level: the participation of the European Union in the work of the United Nations. The General Assembly of the United Nations adopted resolution 65/276 on the 'Participation of the European Union in the work of the United Nations' on 10 May 2011. This resolution takes cognisance of the modifications brought by the Treaty of Lisbon of 13 December 2007 to the European treaties in force regarding, notably, the external representation of the European Union (Article 21 et seq. of the Treaty on European Union). Although we cannot speak of the 'international transposition of a European provision, the idea that motivated the UN General Assembly was to allow for a certain implementation of the institutional modifications brought about at the European level in the international framework of the United Nations. The concept of circulation may again be mobilised to explain this type of intellectual approach. European law is foreign to UN law but this does not forbid the latter from considering the institutional presence of a EU which presents itself--which is to say circulates--in its international legal space.
IV The hierarchization step
The process of the hierarchization of laws enables, finally, every legal system, present at the national, international or European level, to specify which rules have a place in its legal order. This process does not merely have a static value in that it should be considered in an enclosed manner in a national, international or European context. It also has a dynamic dimension in which the application of the methods and solutions derived from national, international or European law leads to interactions. On this point, one scenario must be carefully highlighted when the lawyer aspires to apply the law at another level, which leads them to look for evidence of the materialisation of hierarchical applied law.
In order to solve their case with the help of a hierarchy of norms, the lawyer has made the more or less free choice to place him or herself on one level of the application of law rather than another. This positioning is confronted with the reality of a global legal pluralism that demands that other methods and solutions operate at other levels. Now, these methods and solutions may also participate in a process of the hierarchization of laws. The lawyer must therefore master the passageways from one hierarchy established on one level to another hierarchy established on another level.
The identification of the passageways from one hierarchy established on one level to another hierarchy established on another level borrows from the theme of the circulation of situations that was tackled in the phase of the combination of laws. In the configuration that principally interests us in this work, which is to say the circulation of situations between the national, international or European levels, three scenarios may be envisaged: passageways between the national and international levels, between the national and European levels and between the international and European levels.
Movement from a national level to an international level and vice versa may operate through different passageways. In order to illustrate the phenomenon of circulation between national courts and the ICJ, we can take the example of the 'Diallo' case. (38) This decision illustrates the case in which a State exercises diplomatic protection over one of its citizens, after the exhaustion of domestic legal remedies. This diplomatic protection allows a national situation (here the recourse by the citizen to the authorities of the foreign State that had taken measures of dispossession and expulsion against him) to be elevated to the international level (an interstate conflict brought before the ICJ).
In a case of this kind, the hierarchical structures of national law that allow the legality of the dispossession and expulsion measure to be evaluated, in the national context, determine in the international legal order whether a State has violated an obligation of international law by adopting the dispossession and expulsion measure in question. The hierarchical structures established on a national level thus find a certain echo on the international level.
An opposite example can be taken with an international arbitration proceedings that is incorporated into a national legal order: it is the case of an arbitration decision confronted by a French mandatory rule. Say that an international arbitration tribunal has delivered a decision. The question may arise as to how this decision will be incorporated into the legal order of a State (recognition or an action in annulment), for example the French legal order. Pursuant to this incorporation, the domestic judge may examine whether the decision is 'manifestly contrary to international public policy'. (39) This international public policy is French international public policy. (40) Even though this public policy is meant to be specific to international relations, it proceeds from a hierarchization that is potentially unique to the French legal system. This hierarchization may not be the same as that which the arbiter may have considered in international public policy ('truly international public policy). It may be, therefore, that two hierarchies coexist and interact, as the case may be, with each other.
But this type of institutional movement is not always possible or fully achieved. In such cases, it is the movement from the application of the law in the national context to the application of the law in the international context and vice versa that allows us to understand movement from one hierarchy established on one level to another hierarchy established on another level.
The handling of violations of the rules of international trade established by the WTO by the legislation of State parties to the organisation constitutes, as we have seen, a case of circulation. A law formulated in a national context is evaluated, through the making of a complaint, in an international context. This confrontation generally takes an abstract form. The DSB confronts the national regulation and seeks to confirm or disprove a conflict with the terms of one of the WTO agreements. (41) This abstract approach sometimes gives way to a more concrete analysis. This is the case, for example, in situations in which it is the absence of effective implementation of the national law that constitutes a violation of international obligations. (42) In both cases, we cannot exclude, for example, a discussion on what type of domestic dysfunction reveals the disrespect of international obligations by the defendant State. Potential dysfunctions may include, for example, a failure to apply a domestic hierarchy of norms: a national administrative practice that conflicts with national legislative prescriptions, a conflict that therefore constitutes a violation of the international agreement on free trade.
The institutional passageways that allow us to pass from the national level to the European level and vice versa are well known. They illustrate the potential movement from a hierarchy established on one level to a hierarchy established on another level. The example of the application made to the ECtHR after the exhaustion of domestic legal remedies is very usual. In effect, very frequent is the strategy of the plaintiff who, not having (totally) won their case following a priority question of constitutionality procedure (either because the question was not transmitted to the French Constitutional Council, or because the response of the French Constitutional Council did not completely satisfy the plaintiff) decides, in the same case or in a similar one, to bring the question to the ECtHR after exhausting domestic remedies. In situations such as these, two successive hierarchization procedures are put to the test: the constitutionality of national law and its conformity with the demands of the ECtHR. This double-review inevitably leads to comparative exercises that will not fail to inform the plaintiffs of the best strategy to follow between the two hierarchization procedures.
In this manner, the passageways from one hierarchy to another are clearly marked.
Before even considering making a preliminary reference to the ECJ or making an application to the ECtHR, a lawyer may anticipate movement from one hierarchy defined on one level to another hierarchy defined on another level by comparing the application of the law in the national context with its application in the European context. The working hypothesis is as follows. Following the national priority question of constitutionality procedure (as we have in France), the supreme court pronounces on the conformity of a law with the constitution. It is for a national lower court to draw the consequences from this decision of the supreme court.
A question arises concerning the interpretation of the exact meaning of the decision of the supreme court. Rather than contemplating posing a second priority question of constitutionality, the ordinary court may be tempted to read the national decision as having been implicitly or explicitly inspired by a decision of the ECtHR. The result of this move by the lower court is the coexistence of two hierarchization processes for one situation: the first participates in a review of the constitutionality of the national law and the second undertakes a review of the conformity of the law with the ECtHR with reference to the analysis undertaken at the European level by a European court. (43)
Cases of circulation between the international and European levels and their translation in terms of the hierarchization of laws are doubtlessly more difficult to identify. There are two main reasons for this. First, international law is, as we have seen, a weakly hierarchized law, such that the case of movement from a European legal hierarchy to a purported international legal hierarchy appears to be purely academic. Second, cases of conflict between international and European law are so few that recourse to a hierarchy, conceived as a tool for resolving conflicts, is seldom useful. Nonetheless, a few cases do exist. The 'Kadi' case (44) illustrates, to the highest degree, the review of the legality of a European secondary law text that finds its source in a UN resolution introducing individual sanctions (notably the freezing of assets) against individuals suspected of being in league with terrorist movements.
But if we consider the situation in its totality, we observe that it circulates through different decision-makers ('legislator', 'executive' and 'judiciary' understood in the broad sense) from the international to the European level. This institutional movement from one level to another can bring together different processes of the hierarchization of laws: an international process, at the centre of which a place would be, for example, occupied by jus cogens, and a European process, which notably rests on the affirmation of a community of law and the protection of fundamental rights.
In the Kadi case, the European Court of First Instance (CFI) was tempted, as we have indicated, to refer to an international process of the hierarchization of law presented as a rival to the European process. (45) The Court of Justice firmly closed off this route. (46) The CFI clearly did not (fully) hear it: 'the institutions and intervening governments have, moreover, forcefully reiterated in these proceedings the concerns--already expressed by them in the case culminating in the judgment of the Court of Justice in Kadi--regarding the risk that the system of sanctions put in place by the UN in the context of the fight against international terrorism would be disrupted if judicial review of the kind advocated by the applicant in the light of the judgment of the Court of Justice in Kadi were instituted at national or regional level. It is true that, once it is accepted that the Security Council has inherent competence to adopt sanctions targeted at individuals rather than at States or their governments (smart sanctions), such judicial review is liable to encroach on the Security Council's prerogatives, in particular with regard to determining who or what constitutes a threat to international peace or security, to finding that such a threat exists and to determining the measures necessary to put an end to it.
More fundamentally, certain doubts may have been voiced in legal circles as to whether the judgment of the Court of Justice in Kadi is wholly consistent with, on the one hand, international law and, more particularly, Articles 25 and 103 of the UN Charter and, on the other hand, the EC and EU Treaties, and more particularly Article 177(3) EC, Articles 297 EC and 307 EC, Article 11(1) EU and Article 19(2) EU (see, also Article 3(5) TEU and Article 21(1) and (2) TEU, as well as declaration No 13 of the Conference of the Representatives of the Governments of the Member States concerning the common foreign and security policy annexed to the Treaty of Lisbon, which stresses that 'the [EU] and its Member States will remain bound by the provisions of the Charter of the United Nations and, in particular, by the primary responsibility of the Security council and of its members for the maintenance of international peace and security'.
In that regard, it has been asserted that, even though the Court of Justice stated at paragraph 287 of Kadi that it was not for the Community judicature, under the exclusive jurisdiction provided for by Article 220 EC, to review the legality of a resolution adopted by the Security Council under Chapter VII of the UN Charter, the fact remains that a review of the legality of a Community act which merely implements, at Community level, a resolution affording no latitude in that respect necessarily amounts to a review, in the light of the rules and principles of the Community legal order, of the 'legality of the resolution thereby implemented'. This particularly convoluted reasoning by the European Court of First Instance reveals difficulties for judges in organising a hierarchization process that operates in parallel on two different levels--here international and European, although in the final analysis, it is the European process of the hierarchization of laws that is preferred here by the European judge. The passageways between one hierarchy and another have not been mastered here.
It is also possible to envisage a further case with the example of the international arbitration decision confronted with a European legal order. International arbitration law could not remain indifferent to the emergence of European law, particularly in its public policy dimension. Thus, in one still famous case, (47) the Court of Justice notably declared: 'a national court to which application is made for annulment of an arbitration award must grant that application if it considers that the award in question is in fact contrary to Article 85 of the Treaty [now Article 101 TFEU], where its domestic rules of procedure require it to grant an application for annulment founded on failure to observe national rules of public policy'. (48) Having regard to the consequences flowing from the disrespect of a European police law, the international arbiter, if he does not wish his decision to be annulled by a national judge in a EU Member State, is invited to incorporate into his reasoning the hierarchical structures of European law. The difficult question of the method of this integration is therefore posed.
The example of a solution of European law (EU) evaluated in an international context can also be taken. As the EU, along with its Member States, is a party to the WTO, European regulation may be evaluated in light of the demands of international trade rules before the DSB. Incidentally, this scenario is common. The EU has thus participated, as a defendant, in more than 70 sets of proceedings. That which has already been said in relation to national law may also be true for European law. For an illustration, concerning a moratorium practice that consisted, by the admission of the European administration, in refusing, for more than five years, to approve new biotechnical products 'without scientific or legal justification', (49)
Lawyers cannot do what they like when they like in a context of global legal pluralism. But they may--and often they must when their own liability is in the balance--learn to explore the mysteries of a plurality of laws: several national, international and European laws applying to the same situation, and several national, international and European contexts in which these laws may be implemented.
In order to attempt to present and to illustrate the many ways in which the law operates, it is necessary to look at it from a different perspective. Rather than considering this operation upstream, through the structure of the methods and solutions capable of grasping global legal pluralism, we must tackle, downstream of these methods and solutions, the resolution of the numerous difficulties with which the lawyer is confronted when called upon to apply the law. As was said in the introduction, it is less the definition of the law that is at the heart of this work and more the explanation of the work of the lawyer in a context of global legal pluralism.
This change of perspective has important implications. In order to compare and, as the case may be, combine and hierarchize the laws present and the contexts in which they are implemented, it is necessary to break out of the existing categories. The methods and solutions of national law, of international law and of European law (which may be articulated, notably, around the public-private distinction and numerous legal specialties) are no longer understood separately. They are envisaged together, on a single plane, having regard to the effects they are capable of producing when they are found to coexist on the occasion of the treatment of a situation.
But the objective is not to abuse them. National law, international law (transnational, public and private) and European law (EU and ECHR), notably, expand through this operation, insofar as they all potentially occupy a place in the process of the application of law in the national, international and European context.
This open process of the treatment of legal cases and situations, of which the lawyer must be conscious, in passing from one context--national, international or European--to another, exerts in spite of all an influence on the uses of the law and, sometimes, on its content.
Three main operations have thus successively been undertaken in this work that culminate in the affirmation of an applied and hierarchized law: (1) a multilevel comparison in which the search for applied legal methods and solutions takes place in a national, international and European context, (2) the identification of restrictions on circulation that demand that a situation pass from one level to another and, finally, (3) the materialisation of a law applied on another level, which is to say, in its most complete form, the affirmation of a hierarchized law.
The goal of these operations and, definitively, of this applied global legal pluralism is to clarify and orientate the analysis of the lawyer whenever the legal case or situation he or she has to resolve involves several laws applied in the national, international and European context.
JEAN-SYLVESTRE BERGE (1) AND GENEVIEVE HELLERINGER (2)
(1) Jean-Sylvestre Berge is a law professor at University Jean Moulin--Lyon 3, member of the International, European and Comparative Law Research Centre (EDIEC, EA, No. 4185) and Co-Director of the European University Network << European Area of Freedom, Security and Justice >> (GDR CNRS AFSJ, No. 3452). email@example.com
(2) Genevieve Helleringer is a Law professor at Essec Business School Paris-Singapore and Fellow of the Institute of European and Comparative Law, Oxford University, firstname.lastname@example.org
(3) The expression 'Global Legal Pluralism' has regularly been used since the end of the 1990s by one author: E Snyder, Governing Economic Globalisation Global Legal Pluralism and European Law, Eur. Law Rev. 1999, p. 334. It has had great success, especially in legal literature in English. See, for example: O. Perez, Ecological Sensivity and Global Legal Pluralism: Rethinking the Trade and Environment Conflict, Hart, 2004; P. S. Berman, Global Legal Pluralism, South. Calif. Law Rev. 2007, p. 1155; R. Michaels, Global Legal Pluralism, Annual Review of Law & Social Science, 2009, p. 45.
(4) The Perelman Centre of Legal Philosophy (Free University of Brussels: http://www.philodroit.be/) directed by B. Frydman. For a presentation and justification of this method, see B. Frydman Comment penser le droit global?, in J.-Y. Cherot and B. Frydman (dir.), La science du droit dans la globalisation, Bruylant, 2012, p. 17.
== (5) This is the very common case, for example, of the national judge who presents himself as a European common law judge. This is also the case of the European (ECJ) judge charged with applying national law to a contract concluded by the EU under the terms of an arbitration clause (Article 272 TFEU).
(6) M. Reimann, 'Beyond National Systems: a Comparative Law for the International Age' (2001) 75 Tulane Law Rev. 1103. H. Muir Watt, 'Globalization and Comparative Law' in M. Reimann and R. Zimmermann (ed.), Comparative Law (Oxford University Press, 2006) 579 ; W. Twining, 'Globalisation and Comparative Law' in E. Oriicii and D. Nelken (ed.), Comparative Law (Hart, 2007) 69.
(7) On the origins of this doctrine and the reflections it inspires in modern law, see M. Avbelj, J. Komarek (ed.), Constitutional Pluralism in the European Union and Beyond, Hart, 2012.
(8) See for an historical and critical approach to this phenomenon, H. Ruiz-Fabri, Les contaminations' disciplinaires, in J. Bois de Gaudusson and F. Ferrand, La concurrence des systemes juridiques, PUAM 2008, p. 123; see also the different in-depth analyses offered in L. Klabbers, A. Peters, G. Ulfstein, The Constitutionalization of International Law, Oxford University Press, 2009; H. Ruiz Fabri and M. Rosenfeld (dir.), Repenser le constitutionnalisme a l'age de la mondialisation et de la privatisation, Ed. Societe de Legislation Comparee, Paris, 2011.
(9) In European law, see: Opinion 1/91  ECR 1-6079: 'the EEC Treaty, albeit concluded in the form of an international agreement, none the less constitutes the constitutional charter of a Community based on the rule of law.' Comp. Kadi and Al Barakaat v Council (C-402/05 and C-415/05)  ECR 1-6351: 'In this connection it is to be borne in mind that the Community is based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid review of the conformity of their acts with the basic constitutional charter, the EC Treaty' (para. 281).
(10) Regulation (EC) n[degrees] 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety.
(11) 'ERC programme, directed by F. Collart-Dutilleul (http://www.droit-aliments-terre.eu/).
(12) For example, art 36 FEU.
(13) For example CJEC, 20 February 1979, Rewe-Zentral, case 120/78.
(14) See for an often misunderstood example, CJEC, 4 June 2009, Leroy Somer, case C-285/08.
(15) See, in particular, the present art 36 FUE and art XX of the GATT which, using very similar formulations, define justifications for the restrictions.
(16) For a comprehensive presentation of the process of integration under way in the EU on the grounds of freedom of movement, see J.-S Berge and S. Robin-Olivier, Droit europeen (Union europeenne--Conseil de l'Europe), PUF, 2nd ed. 2011, n[degrees] 129 et seq ; K. Lenaerts, P. van Nuffel, European Union Law, Sweet & Maxwell 2011, Chapter 9.
(17) For a systematic comparison, see L. Bartels and F. Ortino (dir.), Regional Trade Agreements and the WTO Legal System, Oxford University Press, 2006.
(18) For example, in French law, the principle of the nullity of contracts involving surrogate procreation or gestation: Article 16-7 of the French Civil Code.
(19) For example, to foreign situations of surrogacy presented to French judges.
(20) For example, the same rule of French international public order could defeat a European mechanism allowing for the recognition and execution of a legal decision delivered in another EU Member State.
(21) For a an in-depth and illustrated analysis of the phenomenon of the three-way split between public order from a national, international and European source, see, with the references cited: M.-N. Jobard-Bachellier and F.-X. Train, Juris-classeur Droit international, fase. 334-1 and 534-2.
(22) M. Forteau, Le juge CIRDI envisage du point de vue de son office: juge interne, juge international, ou l'un et l'autre a la fois?, cited above, spec. p. 101.
(23) Among other illustrations, see ECJ, 30 May 2006, Commission v. Ireland ('mox'), case C-459/03. See more recently: ECJ, 8 March 2011, on the compatibility of the envisaged agreement on the European and EU Patent Court with the EU Treaties, opinion 1/2009 ; ECJ, 18 December 2014, on the compatibility of the envisaged adhesion of the EU to the ECHR, opinion 2/2013.
(24) For an illustration of a case taken before the International Court of Justice relating to the legality of a national measure of expulsion and dispossession: ICJ, 30 November 2010, Ahmadou Sadio Diallo case--Republic of Guinea v. the Democratic Republic of Congo.
(25) See, in criminal matters: Article 626-1 et seq. of the French Code of Criminal Procedure relating to the 'reconsideration of a criminal ruling as a result of a decision of the European Court of Human Rights'.
(26) Regulation (EC) no. 40/94 of the Council, 20 December 1993 on the community trade mark, replaced by Regulation (EC) no. 207/2009 of the Council of 26 February 2009.
(27) Articles 95 et seq. of Regulation no. 207/2009 cited above.
(28) ECtHR, 12 December 2002, App. No. 59021/00, Kalogeropoulou and others v. Greece and Germany) and international levels (a conflict between Italy, plaintiff, and Germany, defendant, with Greece intervening: ICJ 3 February 2012 Jurisdictional Immunities of the State--Germany v. Italy; Greece (intervening).
(29) In this case, the massacre of 10 June 1944 which took place in the village of Distomo in Greece, see [section] 30 to 36 of the judgment.
(30) For the first case in this sense: ICJ 20 November 2010, the Ahmadou Sadio Diallo case--Republic of Guinea v. Democratic Republic of the Congo, cited above.
(31) An arbitrational legal order (ordre juridique arbitral'), to use the expression of one author: E. Gaillard in (notably): Aspects philosophiques du droit de l'arbitrage international, Pocketbooks of The Hague Academy of International Law, 2008, p. 60 et seq.
(32) (Book IV--Title II: Chapter 1: The international arbitration agreement (Articles 1507 to 1508)--Chapter II: The court and the arbitration sentence (Articles 1509 to 1513)--Chapter III: The recognition and the execution of arbitration sentences delivered abroad or in matters of international arbitration (Articles 1514 to 1517)--Chapter IV: Remedies--Section 1: Sentences delivered in France (Articles 1518 to 1524)--Section 2: Sentences delivered abroad (Article 1525)--Section 3: Common provisions for sentences delivered in France or abroad (Articles 1526 to 1527) (author's translation).
(33) See in the French context: M. Virally, 'Sur un pont aux anes: les rapports entre droit international et droits internes', Melanges Rolin, Pedone 1964, 488; see more recendy, arguing in favour of an implacably dualist conception of the French system, which is usually presented as monist: A. Pellet, Vous avez dit 'monisme'? Quelques banalites de bon sens sur l'impossibilite du pretendu monisme constitutionnel a la francaise, in: L'architecture du droit, Melanges en l'honneur de Michel Troper, Economica, 2006, 827; M. Troper, Le pouvoir constituant et le droit international, Recueil des cours de l'Academie de droit constitutionnel, 2007, vol. XVI, 357) particularly given that it has been demonstrated that neither theory is capable of explaining all the relationships that exist between legal systems (D. Boden, Le pluralisme juridique en droit international prive, Arch, de Philo du droit 2006, t. 49, Le pluralisme, 275. Compare, in the US context: C. A. Bradley, International Law in the U.S. Legal System, OUP, 2nd ed., 2015, 103.
(34) See, for an in-depth study centred on this question of the application of national law in the international or European context: S. Bhuiyan, National Law in WTO Law--Effectiveness and Good Governance in the World Trading System (Cambridge University Press, 2007); L. Azoulai (ed.), L'entrave dans le droit du marche interieur (Bruylant, 2011).
(35) For the published result of this research: G. Cordero-Moss (ed.), Boilerplate Clauses, International Commercial Contracts and the Applicable Law: Common Law Contract Models and Commercial Transactions Subject to Civilian Governing Laws, Cambridge University Press, 2011, 403 p.
(36) List extracted from the Chronique on the interactions of international and European law, JDI 2009, 903: see, for example, regarding UN law (ECtHR, 31 May 2007, n 71412/01, Behrami and Behrami v. France and n 78166/01, Saramati v. France, Germany and Norway.--ECJ, 3 Sept. 2008, cases C-402/05 and C-415/05, Kadi and Al Barakaat), WTO law (ECtHR, 2 August 2006, n 8112/02, de Luca v. France.--ECJ, 9 Sept. 2008, case C-120/06 P and C-121/06 P, F LAMM), UNESCO law (ECtHR, 13 Nov. 2007, n 37323/00, D. H. and others v. the Czech Republic.--ECJ, 5 March 2009, case C-222/07, UTECA), the law of the ILO (ECJ, 11 Dec. 2007, case C-438/05, Viking and 18 Dec. 2007, case C-341/05, Laval.--ECtHR, 12 Nov. 2008, n 34503/97, Demir and Baykara v. Turquie, cited above) or the law of the WIPO (ECtHR, 11 Jan. 2007, n 73049/01, Anheuser-Busch v. Portugal.--ECJ, 17 April 2008, case C-456/06, Peek & Cloppenburg.
(37) For a comprehensive approach to the phenomenon, see notably: J. Wouters, A. Nollkaemper, E. de Wet (eds.), The Europeanisation of International Law, TMC Asser Press, 2008.
(38) ICJ 30 November 2010, Ahmadou Sadio Diallo--Republic of Guinea v. Democratic Republic of Congo, cited above.
(39) On the basis, for example, of Articles 1514, 1520 or 1525 of the Code of Civil Procedure.
(40) For an illustration, in a case of the disrespect by an international arbiter of the principle of the suspension of individual bankruptcy proceedings notably stipulated on the French level, Cour de cassation, lere civ., 8 mars 1988, pourvoi n 86-12015.
(41) See in this sense, S. Bhuiyan, National Law in WTO Law--Effectiveness and Good Governance in the World Trading System: Cambridge University Press, 2007, spec. p. 37; for an illustration in matters of intellectual property: China --Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WTO, Report of the Panel, 26 January 2009, United States v. China, WT/DS362.
(42) For an example, from a conflict between Argentina and the European Communities, WTO, Report of the Panel, 29 September 2006, Argentina v. EC, WT/DS293, see the explanations below.
(43) For an illustration of this scenario, in a case of merely implicit reference to the case law of the ECHR, see the analysis offered by N. Maziau, Constitutionnalite et conventionnalite au regard des motifs de la decision n 2010-2 QPC du Conseil constitutionnel (a propos d'un arret rendu par la Cour de cassation, Ire ch. civ, le 15 decembre 2011 sur dispositif transitoire de la legislation anti-Perruche'), D. 2012, 297.
(44) CFI, 21 Sept. 2005, Yusuf, case T-306/01, overturned by: ECJ, 3 sept. 2008, Kadi and Al Barakaat, joint cases C-402/05 and C-415/05; see also Kadi II (annulling a new European regulation, introduced in the interim), CFI, 30 September 2010, caseT-85/09 ; ECJ, 18 jul. 2013, joint cases C-584/10 P, C-593/10 P and C-595/10 P).
(45) CFI, 21 Sept. 2005, Yusuf, case T-306/01: paras. 334 et seq.
(46) ECJ, 3 Sept. 2008, Kadi and Al Barakaat, joint cases C-402/05 and C-415/05: notably paras. 290 and 327.
(47) ECJ, 1er juin 1999, Eco Swiss, aff. C-126/97.
(48) para. 41.
(49) See Report of the Panel, 29 September 2006, Argentina v. EC, WT/DS293.
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|Author:||Berge, Jean-Sylvestre; Helleringer, Genevieve|
|Publication:||Australian International Law Journal|
|Date:||Jan 1, 2014|
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