Course 2020-2021 a.y.

Part I – Introduction: Public Law in a Globalized Perspective:

• The Globalization of Law. While less recent theories were based on the assumption that law coincides with the State, it is increasingly globalized. As a consequence of this, traditional boundaries tend to blur and new problems arise. Readings include:
  • M. Shapiro, The Globalization of Law, 1 Indiana Journal of Global Legal Studies  (2000).
  • A.M. Slaughter, A Global Community of Courts (1997), Harvard International L.J. (2003).
  • K. Tuori, From a European to a Universal Constitutional Heritage? (Venice Commission, 2016).
• Public Law Beyond the State. Within domestic settings, public law is essentially concerned with democracy, the rule of law, and sound governance. Are these values and principles relevant and significant beyond the State? And which are the “models” of GAL?
  • Materials include:
    • U.S. Supreme Court, Citizens to Preserve Overton Park  v. Volpe (1971).
    • Security Council of United Nations, Resolution 1373 (2001).
  • Readings include:
    • R.B. Stewart, US Administrative Law: a Model for Global Administrative Law? 68 Law and Contemporary Legal Problems 2005.
    • C. Harlow, Global Administrative Law: The Quest for Principles and Values, in European Journal of International Law 17 (2006).
• Relationships between public authorities. Traditionally, the external dimension of public authorities was based on the paradigm of the State-as-a-unit. More recently, a more complex web of relationships has emerged. This provides opportunities for cooperation between public authorities, but raises issues of accountability and transparency.
  • Readings include:
    • A.M. Slaughter, The Real New World Order (1997).
    • S. Cassese, The Globalization of Law, 37 New York J. Int.l L. & Pol. (2005)

Part II – Public Values and General Principles of Law:

• Values: Democracy. Democracy is, with the Rule of law, at the heart of Western constitutionalism. However, beyond the States its contours and its effectiveness raise complex issues. This is not without repercussions on domestic institutional frameworks.
  • Materials include:
    • Treaty on the European Union, Articles 2, 7, and 10-12.
  • Readings include:
    • B. Kingsbury, N. Krisch, R. B. Stewart & J. Weiner, The Emergence of Global Administrative Law, 68 Law and Contemporary Legal Problems 2005.
    • G. della Cananea, Due Process of Law Beyond the State (2016), ch. 1.
• Values: The Rule of Law Under Threat. The Rule of law is a central value of Western legal orders. It is protected by both national constitutions and international treaties. However, its meaning is disputed and its respect is exposed to various threats.
  • Materials include:
    • Venice Commission, Report on the Rule of Law (2011).
    • Council of Europe, New threats to the Rule of law in Council of Europe member States: selected examples (2017).
  • Readings include:
    • J. Waldron, The concept and the Rule of Law, in Georgia Law Review (2008).
    • U. Mattei, A Theory of Imperial Law: A Study on U.S. Hegemony and the Latin Resistance, 17 Indiana Journal of Global Legal Studies (2005).
• Values: Fundamental Rights. Especially after 1945, the protection of fundamental rights is increasingly globalized. Europe provides a particularly interesting legal environment, with its supranational charter and the interaction between the Strasbourg Court and national courts. Professor Stone Sweet recently proposed an innovative reading from a Kantian perspective.
  • Materials include:
    • European Court of Human Rights, Judgment of 28 February 2008, Case Saadi v. Italy (Application no. 37201/06).
  • Readings include:
    • Stone Sweet, A Cosmopolitan legal order: Constitutional pluralism and rights adjudication in Europe, in Global Constitutionalism (2012).
• Public ‘Goods’: Food. Several regulatory regimes, including the EU, the WTO and the Codex Alimentarius Commission, deal with food. Their views, however, differ, for example with regard to the release of genetically modified organisms in the environment. How do such regulatory regimes handle individual and collective interests? Consider, for example, the recent ruling of the European Court of Justice in Fidenato, in the light of the remarks made by scholars such as prof. Stewart of the NYU Law School.
  • Materials include:
    • European Court of Justice, Judgment of 13 September 2017, Fidenato e.a., Case C-111/16
    • Opinion of Advocate General Bobek in Case C-528/16, Conféderation paysanne et Les Amis de la Terre c. Premier Ministre (2018).
  • Readings:
    • Stewart e.a., The International Challenge of Genetically Modified Organisms, NYU Environmental L.J. (2000).
• Public ‘Goods’: Cultural Heritage. One important asset that every generation inerites from previous generations is cultural heritage. It includes both natural heritage and artifacts, such as monuments, landscapes and works of art. It includes, too, intangible culture, such as language and folklore. There are many views about its preservation and many ways to assure it. It can be interesting, therefore, to consider the procedures provided by the World Heritage Convention and its outcome.
  • Materials include:
    • UNESCO, Decision on Garamba National Park (2016).
    • Readings include:
      • S. Battini, The procedural side of legal globalization: the case of the World Heritage Convention, I-Con (2011).
• Principles: Proportionality. When several interests, individual and collective, must be considered and weighed by agencies and courts, the principle of proportionality is increasingly used within national, international and supranational legal orders. Whether it is conceived and used in the same manner is, however, questionable.
  • Materials include:
    • ECJ, Case 11/70, Internationale Handelsgesellschaft (1970).
    • ECJ, Case 5/73, Balkan Import (1973).
  • Readings include:
    • A Stone Sweet & J. Matthwes, Proportionality Balancing and Global Constitutionalism, 47 Columbia J. Transnational Law (2008).
    • M. Andenas & S. Zleptnig, Proportionality: WTO Law in Comparative Perspective, in Texas Law Journal (2007).

III. When Legal Orders Collide:

• Global Security and Due Process. There is a contrast, at least potentially, also between certain collective interests, such as security, and due process of law. The “Kadi” saga, which involves national, EU and UN law, is a good example of this.
  • Materials include:
    • Court of First Instance of the EU, Case T-315/01, Yassin Abdullah Kadi v Council of the EU and the Commission.
    • Advocate General Maduro, Opinion of 16 January 2008, Case C 402/05 P, Yassin Abdullah Kadi v Council of the EU and the Commission of the EC.
    • ECJ, Case C 402/05 P, Yassin Abdullah Kadi v Council of the EU and the Commission of the EC.
  • Readings:
    • G. della Cananea, Global Security and Procedural Due Process of Law between the UN and the EU, 15 Columbia Journal of European Law 511 (2009).
• World Trade and Environment. Protecting the environment is another common goal at global level. But this is not without contrasts with other interests. Moreover, and more interestingly for our purposes here, there are contrasts between norms and governmental practices.
  • Materials:
    • WTO, Appellate Body, Import prohibition of certain shrimp and shrimp products (AB-1998-4)
  • Readings:
    • B.S. Chimni, WTO and Environment: Legitimisation of Unilateral Trade Sanctions , in Economics and Political Weekly (2002).
• Indigenous Groups and Property. A central element of a legal order is its social dimension. In contrast with late nineteenth century ideas and beliefs about the unity of the people, there can be and there are mixed societies. This raises complex and important issues from the viewpoint of legal pluralism, especially when the rights of minorities, such as indigenous peoples, are at stake.
  • Materials include:
    • The Mayagna (Sumo) Community v. Nicaragua, Inter-American Court of Human Rights (Judgment of 31 August 2001): excerpts.
    • Hul’qumi’num Treaty Group v. Canada, Inter-American Court of Human Rights, Petition 592-07.
  • Readings:
    • B. Chimni, Co-option and resistance: two faces of global administratlaw, in NYU Journal of International Law and Politics (2005).
• Art. 6 of the European Convention on Human Rights, Fair Trial and Confiscation of Assets: the European Court of Human Rights case law on Art. 6 ECHR has given new theoretical and practical importance to the well established topics of due process and judicial review. However, said case-law is not always consistent and this raises important issues as to the scope of application of the fair trial guarantees and the intensity of judicial review.
  •    Readings include
    • Paul Craig, The HRA, Article 6 and Procedural Rights, in Public Law, 2003, 753
    • Miriam Allena and Francesco Goisis, ‘Full Jurisdiction’ under Article 6 ECHR: Hans Kelsen v. the Principle of Separation of Powers, European Public Law, 26(2), 2020, 287-306
  •     Materials include:
    • European Court of Human Rights, 8 June 1986, Engel and Others v. The Netherlands
    • European Court of Human Rights, 28 June 2018, G.I.E.M. s.r.l. and Others v. Italy
    • European Court of Human Rights, 5 July 2001, Arcuri and Others v. Italy
• A ‘New Right’: The Protection of Data. Despite the rapidly growing volume and economic importance of data in the digital economy, the legal framework for data ownership, access and trade remains incompletely defined in the EU and elsewhere. This raises complex issues from the perspective of GAL.
  • Materials include:
    • ECJ, 8 April 2014, Joined Cases C-293/12 and C-594/12, Digital Rights Ireland
    • ECJ, 21 December 2016, Joined Cases C-203/15 and C-698/15, Tele2 Sverige
    • ECJ, 16 July 2020, case C-311/18, Schrems II

• Foreign Investment and National Rules. Another terrain of collision between national and international rules concerns direct foreign investment. In this field, disputes between investors and States are not adjudicated by national courts, but by arbitral bodies, in a variety of ways.
  • Materials:
    • ICSID Case ARB/97/1, Metalcad v. Mexico (2000).
    • NAFTA, Methanex v. US (2003).
  • Readings:
    • W.M. Reisman & R.D. Sloane, Indirect Expropriation and its Valuation in the BIT Generation (2004).
    • A. Stone Sweet, Investor-State Arbitration: proportionality’s New Frontier (2010).

• Acquire a better understanding of how public authorities work.
• Be capable to distinguish the pros and cons of various administrative techniques.
• Understand why those techniques are used by global regulatory regimes.

• Given the emphasis that is put on the elaboration and discussion of response papers, one of the main expected outcome of this course is an improvement of students’ abilities to critically examine (legal) documents and to explain and discuss their points of view, also within teamwork (e.g. with regard to judicial decisions).
• All this aims at improving critical thinking.
• Students also have an opportunity to critically confront the conduct of national, European and international public authorities

• Face-to-face lectures
• Online lectures
• Case studies /Incidents (traditional, online)
• Individual assignments

This is an advanced course, based on “law in action”. The class surveys approaches to understanding global law in a range of settings, focusing on “inter-normativity”: the various ways in which autonomous normative orders, including systems of law with fully-fledged courts, interact with one another. A variety of issues concerning legal principles and rules, as well as their underlying values, are thus considered, on the basis of the readings and documents that are available on the Bboard platform of the course.

Attending students are evaluated on the basis of (A) a short (two pages) "response paper" on the weekly readings (50%), (B) a final oral exam  (50%)

Guidelines for writing the response paper are uploaded on the Bboard at the beginning of the course. All the response papers are assessed before the oral exam.

The exam takes place during the exam sessions, and consists of both open knowledge questions and 'cases questions', similar to those discussed during the course.

The elaboration and presentation of the response paper aims at assessing students' ability to critically examine legal documents, as well as to explain and discuss different points of view.

The final exam aims to assess students' ability to analyze and discuss how public authorities work at global level as well as the various administrative techniques which are used by global regulatory regimes.

Students who do not attend the course have to sit a written and oral exam on the same day. The written exam consists of various type of questions (true or false questions and multiple choice questions) and are followed by the oral exam. 

The final exam aims to assess students' ability to recognize basic knowledge regarding how public authorities work at global level as well as to analyze and discuss the various administrative techniques which are used by global regulatory regimes.

Attending students are requested to read all the materials provided during the course and uploaded on blackboard. Additionally, students are requested to read the following two articles:
•       B. Kinsbury, N. Krisch, R. B. Stewart, et al., The Emergence of Global Administrative Law, 68 Law and Contemporary Legal Problems 2005, pp. 15-60.
•       G. della Cananea & A. Stone Sweet, Proportionality, General Principles of Law, and Investor-State Arbitration: A Response to Alvarez, in New York University Journal of International Law and Politics, 2014, n. 1, p. 911-952.

Students could nonetheless study also the following facultative materials:

•       S. Cassese, The Global Polity. Global Dimensions of Democracy and the Rule of Law (Editorial Derecho Global / Global Law Press) 2014, available athttp://es.globallawpress.org/wp-content/uploads/02-TheGlobalPolity.pdf;
•       J. B. Auby, Globalization, Law & the State, Oxford, Hart, 2017;

•       G. Della Cananea, Due Process of Law Beyond the State. Requirements of Administrative Procedure (Oxford University Press, 2016).

For the students who do not attend the course, there will be a written and oral exam, on the same day. Students who do not attend the course will be requested, first, to provide written answers to a questionnaire including both true/false questions and questions with multiple choices and, second, to attend an oral exam.

Not attending students are requested to read all the materials uploaded on blackboard, and in addition the following materials:

Mandatory materials (please choose at least one out of the two)

•       S. Cassese, The Global Polity. Global Dimensions of Democracy and the Rule of Law (Editorial Derecho Global / Global Law Press) 2014, available at http://es.globallawpress.org/wp-content/uploads/02-TheGlobalPolity.pdf;
•       J. B. Auby, Globalization, Law & the State, Oxford, Hart, 2017.

Optional materials

•       B. Kinsbury, N. Krisch, R. B. Stewart, et al., The Emergence of Global Administrative Law, 68 Law and Contemporary Legal Problems 2005, pp. 15-60;
•       G. della Cananea & A. Stone Sweet, Proportionality, General Principles of Law, and Investor-State Arbitration: A Response to Alvarez, in New York University Journal of International Law and Politics, 2014, n. 1, p. 911-952;

•       G. Della Cananea, Due Process of Law Beyond the State. Requirements of Administrative Procedure (Oxford University Press, 2016).