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Questions of Trust

Neil MacCormick

in Practical Reason in Law and Morality

This chapter considers the place of mutual trust in human engagements, both in relation to honesty and truthfulness in communication and in relation to good faith in contracts, promises, and the like.

Freedom of Speech and The Contract of Employment: The Concept of the Public Interest

Lucy Vickers

in Freedom of Speech and Employment

This chapter considers the contract of employment and the various duties owed by employees that may restrict the right to freedom of speech to be enjoyed by those who work. The main contractual ... More

This chapter considers the contract of employment and the various duties owed by employees that may restrict the right to freedom of speech to be enjoyed by those who work. The main contractual duties which will have an impact on freedom of speech for employees are the duty of mutual trust and confidence; of co-operation and fidelity; and duties in relation to confidential information. These duties may be contained in express terms of the employment contract, or may be implied into the contract by the common law. Whether express or implied, they will be subject to an exception where the speech serves the public interest. This means that the question of whether the public interest is served by speech is of pivotal importance in assessing the contractual duties of the employee.Less

The Content and Performance of Contracts of Employment

Mark R. Freedland and Nicola Kountouris

in The Legal Construction of Personal Work Relations

This chapter analyses the doctrines and regulatory techniques which have evolved to ascertain the content of contracts of employment in relation to their performance. It begins by identifying the way ... More

This chapter analyses the doctrines and regulatory techniques which have evolved to ascertain the content of contracts of employment in relation to their performance. It begins by identifying the way in which a whole body of doctrine has evolved with regard to the ‘implied terms’ of contracts of employment. It continues by discussing some specific areas in which the law of contracts of employment interprets, and assigns effects or outcomes to, the eventualities which present themselves or the steps which the parties take in the course or conduct of personal work relations; the areas or locations in question are those of performance of contracts and the regulation of the wage-work bargain, variation of contracts or of their terms, and suspension of contracts.Less

Executive Relationships in a ‘Normalized’ EU Commission

Anchrit Wille

in The Normalization of the European Commission: Politics and Bureaucracy in the EU Executive

What model is an adequate approximation of the executive relationship in today’s Commission? This chapter aims to arrive at a systematic assessment of the normalization of the political–bureaucratic ... More

What model is an adequate approximation of the executive relationship in today’s Commission? This chapter aims to arrive at a systematic assessment of the normalization of the political–bureaucratic relationship among the triads working at the Commission’s apex. Despite a clearer differentiation of the respective roles—linked to the normalization of the EU Commission— commissioners, their heads of cabinet, and their top officials stress the pre-eminence of interdependency, complementarity and teamwork. Their view of the political–bureaucratic relationship is one of a pragmatic-professional transaction. Both sides have the space to be strong, provided that there is mutual trust and respect, which are crucial in an environment where accountability pressures on both politicians and bureaucrats have increased.Less

A Silk Road for Professional Qualifications?: EU Models of Integration and their Potential in Sino–EU Relations

Ton van den Brink and Sybe A. de Vries

in China and Europe on the New Silk Road: Connecting Universities Across Eurasia

The tension between the public interest to regulate professions, and the economic rationales to open up markets has long since been an issue within the EU. This chapter explores how these competing ... More

The tension between the public interest to regulate professions, and the economic rationales to open up markets has long since been an issue within the EU. This chapter explores how these competing interests have shaped the EU’s legal frameworks for the recognition of professional qualifications. We will see that a range of regulatory strategies have been applied to design such frameworks. The next element of the analysis is based on the assumption that we may be able to draw lessons from the EU’s internal regulatory strategies to deal with national differences in regulating professions. Thus, the chapter will examine to what extent, and under which circumstances, such regulatory strategies may offer viable perspectives for Sino–EU relations; a crucially important question considering the implications of the New Silk Road for higher education on the trade of goods and services between China and Europe.Less

Decision Making in Chains and Networks of Contracts

Stefan Grundmann

in Theories of Choice: The Social Science and the Law of Decision Making

Networks of contracts serve mainly as a long-term form of organisation, both features being typically combined. This combination—the so-called organisational contract—is seen as a hybrid between ... More

Networks of contracts serve mainly as a long-term form of organisation, both features being typically combined. This combination—the so-called organisational contract—is seen as a hybrid between market and firm. There are different explanations for its existence and two are particularly prominent. Williamson sees them as a governance device to cope with the problem of uncertainty of future events, namely in situations where one party has invested in a particular relationship more than the other and therefore is ‘more dependent’ on its continuance. Conversely, Powell sees them as a scenario where neither command nor anonymous exchange dominate, but mutual (often personalised) trust and reciprocity based on strong mutual knowledge of the partners are marked. These two explanations imply how fascinating the organisational contract may be for decision theory and the law. This chapter addresses the phenotype of (long-term) networks of contacts and sees a large variety of them ranging from rather standardised to highly tailor-made arrangements, which implies a heterogeneous basis for decision-making theories and their application. With respect to decision-making theories that are considered in the second section, the chapter takes a broad perspective. While it may be attractive to apply mainly one decision theory to the phenomenon, the chapter asks which decision theories might have particular explanatory value. Thus, a broader survey on a multifaceted compound of theories might be particularly suitable for the heterogeneous aspects of the phenomenon. The chapter also addresses the question of which repercussions the discussed decision theories might have in law.Less

A Deliberative Approach to the Tibet Autonomy Issue

Baogang He

in Governing Taiwan and Tibet: Democratic Approaches

Chapter 10 reviews and compares three deliberative approaches to conflict, and applies the deliberative approach to the Tibet autonomy issue. It examines the case of a deliberative workshop, ... More

Chapter 10 reviews and compares three deliberative approaches to conflict, and applies the deliberative approach to the Tibet autonomy issue. It examines the case of a deliberative workshop, including its achievements and limitations. This chapter demonstrates that this deliberative dialogue has improved knowledge and mutual understanding, enhanced mutual trust and deliberative capacities, and produced moderating effects.Less

Trust between Adversaries and Allies: President George H. W. Bush, Trust, and the End of the Cold War

J. Simon Rofe

in Trust, but Verify: The Politics of Uncertainty and the Transformation of the Cold War Order, 1969-1991

This chapter investigates the central role of trust-building for the George H. W. Bush administration and its crucial significance in navigating the political transformations of 1990–91. Portraying ... More

This chapter investigates the central role of trust-building for the George H. W. Bush administration and its crucial significance in navigating the political transformations of 1990–91. Portraying Bush's foreign policy as driven by an effort to establish trust among adversaries to minimize risk and maintain order, this chapter shows how Bush and his key advisers, Secretary of State James A. Baker III and National Security Advisor Brent Scowcroft, crafted a strategy of personal diplomacy and caution. Analyzing in particular the demise of the Soviet Union in late 1991 as well as the 1990–91 Kuwait crisis, the chapter highlights the Bush administration's prioritization of reliability, steadfastness, and personal relationships in fostering a culture of mutual trust as key assets for U.S. foreign policy before.Less

The EU Legal Framework for the Protection of Fundamental Rights

Jan Wouters and Michal Ovádek

in The European Union and Human Rights: Analysis, Cases, and Materials

This chapter offers a global view of the EU legal framework for the protection of fundamental rights and the basic functioning of its key constituents, most notably the Charter of Fundamental Rights. ... More

This chapter offers a global view of the EU legal framework for the protection of fundamental rights and the basic functioning of its key constituents, most notably the Charter of Fundamental Rights. The EU Charter of Fundamental Rights was originally devised in 2000 by the so-called European Convention consisting of representatives of the European Parliament, national parliaments, the European Commission, and national governments. The Charter today is the centrepiece of EU fundamental rights law and policy. It is a separate document from the Treaties but holding the same legal value. It consists of a preamble and seven titles, the first six of which contain substantive rights and principles on dignity, freedoms, equality, solidarity, citizens' rights, and justice. The last title covers general provisions on the field of application of the Charter, its scope and interpretation, level of protection, and a prohibition of the abuse of rights. The chapter then considers EU secondary law; the principle of mutual trust; and the protection of EU values through Article 2 and 7 TEU.Less

A Normative Framework for Promoting Compliance

Irit Mevorach

in The Future of Cross-Border Insolvency: Overcoming Biases and Closing Gaps

This chapter completes the proposed normative framework for cross-border insolvency. It considers the problem of compliance with a cross-border insolvency system by countries and implementing ... More

This chapter completes the proposed normative framework for cross-border insolvency. It considers the problem of compliance with a cross-border insolvency system by countries and implementing institutions. The previous chapters have shown how the choice and use of certain international legal sources, such as customary international law (CIL), can strengthen the system, close gaps, and address biases that may otherwise impede the choices of optimal solutions. Yet, notwithstanding the pervasiveness and behavioural force of CIL, the observance of the norms is not guaranteed. Written instruments, even if precise and comprehensive, and designed effectively, do not assure compliance either. Even where so-called soft law is in fact hard in important ways, countries might still underperform. This chapter suggests how compliance can be induced, and discusses which measures can be more, or less effective in that regard, including in view of decision-making constraints.Less

Implied Terms in the Contract of Employment

Hugh Collins

in The Contract of Employment

Having established a binary classification of implied terms, the chapter argues that terms implied in fact into contracts of employment typically are needed to prevent reliance upon a possible ... More

Having established a binary classification of implied terms, the chapter argues that terms implied in fact into contracts of employment typically are needed to prevent reliance upon a possible construction of the express terms that would permit unfair treatment, exploitation, or what might be described as a bad faith interpretation of the contract; and that terms implied by law into contracts of employment provide standard incidents of the contract that will be selected primarily on the basis of efficiency and a fair balance of obligations. The chapter considers whether the structural legal principles found in terms implied in law, such as the employee’s duty of obedience and the reciprocal duty of mutual trust and confidence or good faith, can in practice or theory be excluded by the express terms of the contract of employment.Less

Civil Justice Extending its Tentacles

Eva Storskrubb

in The Evolution of EU Law

‘Civil Justice Extending its Tentacles’ deals with the constitutional and regulatory challenges shaping EU civil justice including the challenges of multi-level regulation and pressures towards ... More

‘Civil Justice Extending its Tentacles’ deals with the constitutional and regulatory challenges shaping EU civil justice including the challenges of multi-level regulation and pressures towards further harmonization. It presents the full strands of civil justice evolution, from primary rules and case law principles, to secondary rules and non-binding mechanisms. It shows how the tentacles of EU procedural law extend gradually into domestic law, triggered by the need to both enforce substance EU rights and support the fundamental EU market freedoms. Finally, it raises the EU internal and external forces shaping the future of civil justice evolution including the rule of law and mutual trust debates as well as the digitalization of justice.Less

Conclusions

Bettina Westle and Paolo Segatti

in European Identity in the Context of National Identity: Questions of Identity in Sixteen European Countries in the Wake of the Financial Crisis

At present, European identity is unlikely to be a source of political integration and political legitimacy such as national identities have been in past and are today. Europeans primarily feel as ... More

At present, European identity is unlikely to be a source of political integration and political legitimacy such as national identities have been in past and are today. Europeans primarily feel as nationals, not as a European peoplehood. Mutual trust between European peoples exists, but is somewhat fragile. Yet, European identity is intertwined with the national identities in manifold ways. Thus, the imagined communities on national and on European level show individually strong similarities—criteria for being a European are deduced from the criteria one believes to make somebody belonging to one’s nation. All these complex links seem to manifest themselves also in citizens’ feelings of interdependence between the nations in the European Union—which at least helps coping with crises.Less

Article 4 TEU

Marcus Klamert

in The EU Treaties and the Charter of Fundamental Rights: A Commentary

The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of ... More

The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. Less

Article 82 TFEU

Wolfgang Bogensberger

in The EU Treaties and the Charter of Fundamental Rights: A Commentary

Article 31 TEU Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of ... More

Article 31 TEU Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article 83. Less

The legal basis for preventing and resolving conflicts of criminal jurisdiction in the TFEU

Martin Wasmeier

in Preventing and Resolving Conflicts of Jurisdiction in Eu Criminal Law: A European Law Institute Instrument

Since the European Union (EU) has received powers to adopt legally binding acts in the area of judicial cooperation in criminal matters, the Treaties expressly referred to conflicts of jurisdiction ... More

Since the European Union (EU) has received powers to adopt legally binding acts in the area of judicial cooperation in criminal matters, the Treaties expressly referred to conflicts of jurisdiction as one of the issues to be tackled. Under the Amsterdam Treaty, the Union could adopt decisions and framework decisions with the aim of ‘preventing conflicts of jurisdiction between Member States’ (ex-​Article 31(d) of the Treaty on European Union (TEU)). The Treaty of Nice (26 February 2001) added the coordination of prosecutions through Eurojust. Less

Recognition and Enforcement

Reinhard Bork and Renato Mangano

in European Cross-Border Insolvency Law

Automatic recognition of judgments rendered within the course of insolvency proceedings constitutes one of the fundamental principles of the EIR, as recognition is based on mutual trust and is ... More

Automatic recognition of judgments rendered within the course of insolvency proceedings constitutes one of the fundamental principles of the EIR, as recognition is based on mutual trust and is crucial regarding maintenance of the universality of (main) insolvency proceedings. This chapter scrutinizes the mechanism through which recognition operates pursuant to the EIR. Recognition applies only to certain judgments handed down during insolvency proceedings; therefore, we must determine which types of judgment enjoy recognition pursuant to the EIR. Discussion then focuses on the impact of recognizing foreign judgments before exploring the public policy exception, this being the only ground upon which refusal of recognition may be based. As enforcement of judgments in foreign Member States may be necessary, the manner in which the EIR ensures the enforceability of judgments handed down during insolvency proceedings will also be observed. Less

Article 2 TEU

Marcus Klamert and Dimitry Kochenov

in The EU Treaties and the Charter of Fundamental Rights: A Commentary

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. ... More

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. Less