Max Planck Institute Luxembourg for Procedural Law. Max Planck Institute Luxembourg for Procedural Law 1

Transcription

1 A L O O K I N S I D E Max Planck Institute Luxembourg for Procedural Law 4 Max Planck Institute Luxembourg for Procedural Law Max Planck Institute Luxembourg for Procedural Law 1

2 Editorial The Max Planck Institute for International, European and Regulatory Procedural Law was founded in fall 2012, at the Kirchberg in Luxembourg. Today, its 90 researchers and staff who come from all over the world investigate all forms of dispute resolution. Within the Max Planck Society, it is the fifth Max Planck Institute established outside Germany, and the first of these focusing on law. This brochure will give you an idea about the Institute and its research profile. This in turn attracts scientists from many different countries. Researchers and guests at the Max Planck Institute bring together insights from different cultural and legal backgrounds. The Institute s atmosphere is characterised by the exchange of expertise and mutual scientific inspiration. Luxembourg was a wise choice of location for strategic reasons: the center of the Grand Duchy is essentially the judicial capital of Europe. Situated close to the Max Planck Institute is the European Court of Justice, the pivotal institution with comprehensive influence on European law. This gives the researchers and guests of the Institute the opportunity to maintain a continuous dialogue with the members of the Court and to gain a direct insight into the workings of the European judiciary. Observing the practice of courts is a crucial success factor for studying European, comparative and international procedural law. The Institute also provides optimal conditions guaranteeing that its work leads to visible results. For example, only a few years after its founding, a large library has already been built that covers its key scientific areas. These excellent working conditions, combined with the dedication of the scientists at the Max Planck Institute Luxembourg, are yielding the first successes: we have initiated and implemented projects that have arisen great international interest be it the comparative study on insolvency procedure or the Max Planck Encyclopedia of International Procedural Law. This project attracts much attention for integrating both legal and sociological research approaches. All this shows that the Max Planck Institute Luxembourg has become an important place of research on European, comparative and international procedural law, and we hope you enjoy reading all about it in the following pages. Yours sincerely Director Professor Hélène Ruiz Fabri Director Professor Burkhard Hess 2 Max Planck Institute Luxembourg for Procedural Law Max Planck Institute Luxembourg for Procedural Law 3

3 What is Procedural Law? T h e M a x P l a n c k I n s t i t u t e L u x e m b o u r g, t h e p l a c e f o r a c r i t i c a l a s s e s s m e n t o f t h e p o s s i b i l i t i e s a n d l i m i t s o f p r o c e d u r a l r a t i o n a l i t y! Surely the evaluation of such unwillingness or inability involves material considerations. What is more, because procedure is integral to every dispute, more often than not procedural issues become intermingled with substantive issues. Should the jurisdictional immunity of heads of states take precedence over the prohibition of torture? Conversely, courts may deem the rules that seem procedural to be of substantive importance. What do the following have in common? A domestic judge, the UN Security Council, the European Court of Justice, and the Financial Stability Forum? They are all institutions adopting regulations and making decisions affecting our lives. To study such decisionmaking processes is to study procedural law. Procedural law is an important part of law In all such cases, how a rule is characterised will be of crucial importance: it will affect the question whether it is to be treated as a preliminary objection (if it is procedural) or considered as part of the merits (if it is substantive). that governs the machinery of dispute resolution and the processes by which individuals, corporations, and states enforce their rights in national, regional, and international fora. Procedural law can also be defined negatively, as Rules of procedure are also the means by which we all rules that do not bear directly upon the question can make substantive law. And yet, the door can of whether or not a particular conduct is lawful or remain shut, thus making substantive law unusable unlawful. In that sense, procedural law is defined in or biasing its implementation. opposition to substantive law, which is the part of law that creates and defines rights and obligations. However, it is not always easy to distinguish substantive law from procedural law. Many rules seem Procedural law sets forth the rules that prescribe the steps for having a right or an obligation judicially to straddle the divide and, depending on the circumstances, may be seen as either substantive enforced, as opposed to the law that defines the specific rights and obligations themselves. In other or procedural in nature. One example is the complementarity principle of the Rome Statute, which words, procedural law governs the putting into practice of substantive rules. stipulates that the International Criminal Court is a court of last resort, and will step in only where national courts are unwilling or unable to address Hence the importance of procedural law: it is central to the proper administration of justice, even international crimes. though it may not, at first glance, have the drama or the intrigue of substantive law. As Karl Llewellyn, a prominent American scholar, once put it: procedural regulations are the door, and the only door, to making real what is laid down by substantive law. Procedural regulations are the door, and the only door, to making real what is laid down by substantive law This suggests that it may be difficult and even, at times, counterproductive to separate completely procedure from substance. Take the submissions that NGOs can now make in international investment disputes (amicus curiae), thus allowing people who are not allowed to introduce a claim to let nevertheless know their interest and point of view in the proceedings. While this procedural rule has been seen positively, as a mean to correct the system s democratic deficit and lack of openness to public scrutiny, it does not ensure, in and of itself, that the decision will take account of broader social interests. In order to assess whether amicus curiae affects, substantively speaking, the judicial outcomes, we still need to be attentive to the rationale of such procedural rule. In other words, the impetus for more legitimacy and accountability in decision-making can only ever be properly understood against a backdrop of material values. Because procedure is not only technical, but is supposedly based on values like fairness, equal treatment of parties, impartiality of the judge, adversarial debate, public hearings, which ought to guarantee a fair (and acceptable) result of the proceedings. But do they? This is the locus of the Institute s cutting-edge research: to critically assess the possibilities and limits of procedural rationality. 4 Max Planck Institute Luxembourg for Procedural Law Max Planck Institute Luxembourg for Procedural Law 5

4 Procedural law tells us a lot about the basic logic of a society Cross-border disputes entail not only technical questions but also cultural issues of international law (environment, human rights, Prof. Hess, your main research area is comparative etc.). Today trade courts are numerous, be they glo- procedural law. What makes that field interesting bal such as at the WTO, or regional. There is also an for you? increasing volume of arbitration related to foreign The procedural laws and court systems in Europe direct investment. Most people are not even aware work quite differently. In the courts of some EU- of its existence although it deals with huge econo- member states you get a judgment within a few mic interests. months, even weeks; in others, you may have to wait for years. We compare the various adjudicative What is the role of procedural law? systems by modern methods: for many years com- Substantive law concerns the merits of a case. Pro- parative research was mainly based on published cedural law describes how things should be done: law reports. Today, information technology permits Prof. Ruiz Fabri, what is international law about? how to implement a right or obtain damages when the use of real, up-to-date information about the I understand that your Institute is also dedicated to I like to compare international law with an archipe- that right is infringed. My stance is that procedural performance of courts. These new tools can be research on cross-border litigation lago, in which islands represent the diverse subsys- law tells us even more about the basic logic of a combined with the traditional methods of compara- This is one of its main areas. When parties come tems of international law. Each island has specific society or a social group than substantive law. tive research in order to get a better picture of the from different jurisdictions, many questions arise, legal issues and courts to fix them. We have to functioning of judicial systems. such as where the case should be heard and whe- gather and compare knowledge from all of these What are your plans for research at the Max Planck re the judgment should be enforced. Our Institute islands and about their interconnections. Under- Institute Luxembourg? Can you give us an example? investigates the various jurisdictions, looks for best standing international legal systems thus requires Beyond the launch of the Max Planck Encyclopedia One major project was a comparative study on insol- practices and tries to develop possible avenues for an analysis of the influences on each island, that is, of International Procedural Law, I am also initiating vency proceedings in Europe. It had been reques- the future. The aim is to adapt the existing systems within each system. an interdisciplinary programme, since I am con- ted by the European Commission. With partners to new challenges and to provide valuable advice to vinced that procedural law should be investigated from Heidelberg and Vienna we set up a network legal practice. What makes international law important? combining legal as well as other social sciences ap- of national reporters who collected data and other International law is important to avoid or settle dis- proaches. empirical information in order to find out whether a Why is Luxembourg so attractive for you? putes, and international courts contribute to their European Regulation which coordinates insolvency Luxembourg is the seat of the European Court of peaceful settlement. One of its most visible aspects Why should other scientists come here for their proceedings is efficiently applied. We were able to Justice, the highest Court of the European Union. is international criminal justice: individuals judged in research? provide data on the number of cases, the outcome Talking to the judges and other stakeholders, un- international courts in cases of crimes against hu- Through scientific events as well as invitations for of the proceedings and we conducted interviews derstanding how the court functions, attending manity. Alternatively, through international human research stays, we provide the opportunity to meet with stakeholders (insolvency administrators, jud- hearings and using the infrastructure of the court rights law, guarantees can be put in place for indi- other researchers as well extensive research faci- ges, lawyers, creditors) on practical impediments, and its very attractive library these things are all viduals beyond the jurisdiction of the state. Interna- lities, including access to the unique collection of best practices and possible reforms. As a result of possible if you are based in Luxembourg. The Max tional law is thus necessary when domestic justice our library. the conclusions of this study the European law ma- Planck Institute is an excellent place for procedu- is, for example, unable to function properly or pro- ker recently recast the Insolvency Regulation. ral law. The collaborators are international, the di- tect the rights of the individual. What is your vision for this Max Planck Institute? rectors come from different jurisdictions and the I would like this MPI to become the prominent working conditions are very good. We would like to The economy is becoming increasingly globalised. place for the study of procedural law, attracting peo- invite researchers from all over the world to come How does this affect international law? ple working in the field around the world. to the MPI and to join us! International economic law burgeoned alongside issues related to its interaction with other branches 6 Max Planck Institute Luxembourg for Procedural Law Max Planck Institute Luxembourg for Procedural Law 7

5 A Max Planck Institute in Luxembourg T h e I n s t i t u t e i n i t s e n v i r o n m e n t The location in Luxembourg is ideal for a Max Planck Institute focusing on procedural law: Luxembourg has become a synonym for the constant development of the European Union Member States legal systems, triggered by European law and the jurisprudence of the Court of Justice of the European Union. Furthermore, the research environment together with the University of Luxembourg and the National Research Fund provide an ideal setting for mutual co-operation in research and for related funding. Among the judicial institutions, the Court of Justice of the European Union is a very important cooperation partner for the Max Planck Institute: an exchange of young researchers of the Institute who are given the opportunity to work at the Court for several months is ongoing, and its Judges and Advocates-General regularly participate in the conferences of the Institute as speakers or moderators. The close co-operation with the Faculty of Law, Economics and Finance of the University of Luxembourg, where both directors of the Max Planck Institute, Professor Hess and Professor Ruiz Fabri, have been appointed Honorary Professors, includes some promising joint projects and conferences as well as joint applications for external funding. Both institutions maintain a close scientific exchange by mutual participation in lectures and conferences. The Law Faculty is also a partner in the International Max Planck Research School for Successful Dispute Resolution and directors and researchers of the Institute lecture at the Law Faculty. The National Research Fund Luxembourg (FNR) as the main national funder of research activities is another cooperation partner of great importance. The FNR offers a variety of programmes and funding instruments which are of vital interest to the Institute, including both funding opportunities for the Institute s research and events and the support of young researchers at the MPI, e.g. for a research stay abroad. In addition to that, the Institute has established contacts and initiated cooperation with other major European and international institutions located in Luxembourg such as the Court of Justice of the European Free Trade Association States - which is responsible for interpreting the Agreement on the European Economic Area - or the European Stability Mechanism functioning as an instrument for crisis resolution in the euro zone. The Institute s other partners include Luxembourgish institutions, such as the Central Bank of Luxembourg or the various courts seated in the capital. P a r v a t h i M e n o n After receiving a Bachelor s from Symbiosis Law School, India, and two Master s of Law from the London School of Economics and Harvard Law School, my academic career began with a lectureship in India, then West Africa and a research assignment in Helsinki. I m interested in the study of liberation movements from a postcolonial perspective; though the site of analysis for my research is the Third World, the genealogies of the legal concepts I use bear the burden of European thought and history. Apart from the exposure the MPI Luxembourg provides me to European traditions, it also seeks to engage us researchers with the procedural realities of our substantive legal questions like few other research institutes do. Under the supervision of Professor Ruiz Fabri, the journey here promises enriching intellectual interactions through the cosmopolitanism of the team she recruited, especially with regard to our fields of expertise. The Department of International Law and Dispute Resolution is a melting pot of cultures and legal approaches, which allows us to carve our own niche in the erudite company of others. 8 Max Planck Institute Luxembourg for Procedural Law Max Planck Institute Luxembourg for Procedural Law 9

6 The Department of European and Comparative Civil Procedural Law A d e d i c a t i o n t o t h e p r e s e n t a n d f u t u r e a r c h i t e c t u r e o f j u d i c i a l s y s t e m s a n d d i s p u t e r e s o l u t i o n Under the leadership of Professor Burkhard Hess, the Department investigates the many different ways of resolving disputes in private and commercial law. Accordingly, it explores adjudicatory procedures as well as alternative dispute resolution (out of court systems). Its researchers address different levels of national and of supranational procedural law and especially their interaction in cross-border litigation. The Department is marked by its intercultural perspective as it is composed of a team of five senior research fellows and fifteen research fellows who come from Austria, Bulgaria, China, France, Germany, Greece, Italy, Poland, Serbia and Spain and from corresponding different academic backgrounds. This variety and legal cultural richness makes the Department the perfect environment for a fruitful investigation of comparative civil procedure. A special focus is given to the development of European procedural law aiming to understand and anticipate the present and future architecture of the European court system. In this respect, procedural law is always seen in its cultural and social connotations. In this research field, the different regulatory approaches of the European and national lawmakers are scrutinised; the relationship between private and public enforcement, individual and collective redress, the financing of litigation to the privatisation of dispute resolution by quasi-judicial bodies in the area of consumer dispute resolution, are all specific areas of analysis. The structure of the adjudicatory bodies (especially questions related to institutional aspects of courts and to professional regulation of legal services) constitutes a further major research area of the Department. In this respect the procedural law of the European Court of Justice and of the European Court of Human Rights is of particular importance, especially with regard to the dialogue between the national and the international judges and among different international adjudicative bodies. Recently, the development of court systems and dispute resolution in Asia, especially in China and in Singapore, has become an additional area of research. Since its creation, the Department has evolved in a very dynamic way, developing intensive research activities that have culminated in lectures and conferences, collective books, and many articles and presentations by the individual members in different fora in Europe and the United States. The team of researchers constitute a joint task force where individual research interests perfectly fit the common overarching interests of the Department as a whole. Already by 2015, several former members of the Department have completed their PhD theses and found positions in their countries of origin or in international institutions. The Department is regularly involved in consultations initiated by the European Commission, the European Parliament as well as national lawmakers regarding procedural and institutional reforms and law-making. In several research projects funded by the European Commission, it cooperates with other leading European academic institutions such as the University of Gent, Heidelberg University and universities in Madrid (Complutense), Milano (Università degli Studi and Università Cattolica), Oxford (Center for Social and Legal Studies), Paris (Sorbonne) as well as Vienna, on topics such as the mutual recognition of judgments, European insolvency law, judicial cooperation in family law, as well as consumer dispute resolution. 10 Max Planck Institute Luxembourg for Procedural Law Max Planck Institute Luxembourg for Procedural Law 11

7 Post-Doc Summer School on Comparative Procedural Law E x p e r i e n c i n g a c a d e m i c e x c h a n g e s a m o n g d i f f e r e n t g e n e r a t i o n s o f r e s e a r c h e r s K a t h a r i n a R a f f e l s i e p e r I was born in Hamburg, Germany, and studied law at Heidelberg University (Germany) and the Université Paris 1 Panthéon-Sorbonne (France). During my studies, I developed a strong interest in Private International Law and European Procedural Law. As a student, I worked as assistant to Professor Burkhard Hess. I was able to deepen my skills further during an internship at the European Commission in 2013 at the civil justice department, where I experienced working in a multilingual and multicultural academic institution. After having obtained a law degree from Heidelberg University (First State Examination), I joined the Max Planck Institute Luxembourg in July As an international institution based in one of the European capitals, the MPI has proved to be the perfect location to share and exchange expertise with researchers interested in similar areas of law. I am currently writing my PhD. My project involves a comparative study on provisional enforcement in Germany, France and Italy and includes the application of the Brussels Ibis Regulation to cases of provisional enforcement and the functioning of the European Account Preservation Order procedure (Regulation (EU) 655/2014). Or in other words it is about the way how to enforce monetary judgments in cross border settings. Together with the International Association of Procedural Law (IAPL), the Max Planck Institute Luxembourg has initiated a Post-Doc Summer School on Comparative Procedural Law. The School focuses on the increasing receptiveness of modern procedural law to comparative and international perspectives. These developments are triggered by growing globalisation, European integration and similar developments of regional economic and judicial cooperation. Furthermore, the economisation and constitutionalisation of procedural law are equally influenced by international standards. Against this backdrop procedural science requires a new approach of research which has to be based on comparative methodology. This is the philosophy of the new Summer School. It took place for the first time at the Max Planck Institute Luxembourg in July Post-Docs in procedural law from diverse legal and academic backgrounds such as Argentina, Belgium, Bulgaria, China, France, Germany, Greece, Italy, Kyrgyzstan, Poland, Spain, Switzerland and the United Kingdom convened at the MPI and presented their respective research topics. The participants were selected from a fleet of applications, filed with the MPI after the announcement of the school. They addressed different areas of procedural law: from regulatory approaches to procedural law, to comparative procedural law, arbitration and alternative dispute resolution as well as the Europeanisation of civil procedure. Applicants were selected after a thorough examination of their CVs, their projects of research and their motivation to attend the School. Most participants got full funding from the organisers. At the MPI, they met a group of eminent professors of procedural law: Neil Andrews (England), Loic Cadiet (France), Remo Caponi (Italy), Peter Gottwald (Germany), Eduardo Oteiza (Argentina), Rolf Stürner (Germany). The invited professors presented treatises of procedural law which they considered as influential. The presentations of all participants, reworked in light of the discussions, have been edited at the MPI and will be published in a book of the MPI collection. The MPI and the IAPL will continue the project by providing the place and time for different generations of researches from several continents, representing different cultures and experiences, to get together in Luxembourg every two years. A second IAPL/MPI Summer School in Procedural Law will take place in Luxembourg in summer A call for applications will be launched in the fall of Max Planck Institute Luxembourg for Procedural Law Max Planck Institute Luxembourg for Procedural Law 13

8 Department of International Law and Dispute Resolution A n i n t e r n a t i o n a l l y - m i n d e d t e a m o f s c i e n t i s t s d e v o t e d t o b u i l d i n g b r i d g e s b e t w e e n c o n f l i c t i n g i n t e r n a t i o n a l p l a y e r s Settling disputes involving states, international organisations or parties residing in different countries can be highly complex. Not only do the legal procedures differ from one country to another but the application of international treaties or other international rules can also raise difficult issues, notably on procedural grounds. The Department of International Law and Dispute Resolution examines and analyses various mechanisms and techniques of international dispute settlement including traditional litigation (as practiced at the International Court of Justice) as well as alternative methods of dispute resolution and adjudication but also extends its research to all kinds of decision-making processes. Its research agenda focuses on the principles and processes underlying each of these mechanisms and explores various theoretical and historical schools of thought in international law in order to assess their accuracy regarding procedural issues. Our international team of senior and junior research fellows, led by Professor Hélène Ruiz Fabri and coming from four continents and fifteen countries, includes some of the most innovative and promising figures in their fields. Their research topics include, amongst others, comparative constitutional law, international criminal justice, international human rights law and humanitarian law, the history, practice and theory of international law, international economic law (international investment law, international commercial law, international trade law, and international monetary law), energy and environmental law, as well as global administrative law. Our intellectual focus on the various mechanisms and techniques of international dispute resolution and decision-making currently guides a fundamental initiative: the creation, edition and publication of a Max Planck Encyclopedia of International Procedural Law. Conceived as a twin sister of the Max Planck Encyclopedia of Public International Law, this new work aims to cover the essential topics in international dispute resolution, to capture the latest developments in the field and to reflect international law from a procedural perspective, i.e. from the point of view of the rules that prescribe the steps for having a right or an obligation enforced, as opposed to the law that defines the specific rights and obligations themselves. Our research methodology also includes in-depth comparison, be it between international, normative sets or between domestic, regional and international ones. As many of our interests overlap from one area to the next, all of us explore questions and issues that are echoed or extended in the work of colleagues who study neighboring fields and topics. Most of our departmental agendas benefit from this multi-cultural, multi-disciplinary and multi-lingual environment, starting with our pluri-annual project on The Making of International Judicial Decisions and Awards, that notably combines the perspectives of law, political science, sociology, psychology and history. Besides the two aforementioned ambitious projects, the Department of International Law and Dispute Resolution, through the scientific connections of its members, is actively engaged in international research projects, scientific and professional networks, international organisations and forums. Seminars, colloquia and in-house workshops that gather leading scholars and practitioners of international law are regularly held, as well as Lecture series organised in close collaboration with the Department of European and Comparative Procedural Law. Our approach to international procedural law stresses a knowledge of the core principles, topics and intellectual traditions of public international law, and the subjects we explore combine interdisciplinary work in a range of fields from anthropology, sociology, and the history of law to philosophy, political science and critical theory. 14 Max Planck Institute Luxembourg for Procedural Law Max Planck Institute Luxembourg for Procedural Law 15

9 The International Max Planck Research School for Successful Dispute Resolution A n o p p o r t u n i t y f o r t a l e n t e d y o u n g s c h o l a r s The International Max Planck Research School for Successful Dispute Resolution (IMPRS-SDR) examines and compares all forms of international dispute resolution procedures primarily from a legal perspective. Wider political, sociological and psychological aspects are also taken into consideration. The principal component of the three year study programme is the doctoral thesis representing a major piece of independent research, mainly conducted in an interdisciplinary topic. Doctoral students also benefit from regular workshops, facilitating exchange of information and providing opportunities to present and discuss their research topic from different perspectives. Whilst the doctoral degree is conferred by the participating universities, professors from the Max Planck Institutes and the universities are jointly engaged in the supervision, instruction and examination of the students. The three spokespersons of the school are Prof. Dr. Dr. h.c. Burkhard Hess, MPI Luxembourg/Heidelberg University, Prof. Dr. Dr. h.c. Thomas Pfeiffer, Heidelberg University and Prof. Dr. Dr. h.c. Rüdiger Wolfrum, Max Planck Foundation Heidelberg/Heidelberg University. International dispute resolution is a major and growing aspect of international relations in the public, the private, and the public-private sphere. In the public sphere, for example, interstate disputes, such as those pertaining to maritime delimitation, require dispute settlement institutions to find solutions that cannot be achieved through negotiations or other peaceful means. As regards the private sphere, parties to a dispute are progressively mobile and internationally active, due to globalisation as well as commercial and technological developments. As a consequence, disputes that must be brought before courts or other adjudicatory bodies increase. By addressing all forms of dispute resolution, the research profile of the IMPRS-SDR fits very well with the research profile of the Institute. The Max Planck Research School for Successful Dispute Resolution is one of the current 60 International Max Planck Research Schools. Talented junior scholars are offered the opportunity to earn a doctorate under excellent research conditions. The research schools are established by one or several Max Planck Institutes. Working in close cooperation with universities and other research institutions is a shared characteristic of the IMPRS. This provides an extraordinary framework within which doctoral students may carry out their research activity a great advantage especially in interdisciplinary research. Students of the Research School explaining their PhD topics to the evaluation team. The Max Planck Research School for Successful Dispute Resolution was founded in Heidelberg in 2009 and extended for another five years in The institutions taking part are the Max Planck Institute Luxembourg, the Heidelberg University, the University of Luxembourg, the Max Planck Foundation for International Peace and the Rule of Law, and the Max Planck Institute for Comparative Public Law and International Law (both in Heidelberg). Furthermore, in cooperation with the Permanent Court of Arbitration in The Hague, the IMPRS-SDR runs a funded internship programme in international arbitration for doctoral students. The international dimension of the school and the interconnectedness with numerous prominent universities and prestigious institutions is mirrored by the participating institutions and the affiliations of professors who make up the group of PhD supervisors. The PhD supervisors include the three spokepersons and Prof. Dr. Dr. h.c. Hans-Jörg Albrecht (MPI Freiburg/ University of Freiburg), Prof. Dr. Gilles Cuniberti (University of Luxembourg), Prof. Dr. Dres. h.c. Werner Ebke (Heidelberg University), Prof. Dr. Matthew Happold (University of Luxembourg), Prof. Dr. Herwig C. H. Hofmann (University of Luxembourg), Prof. Dr. Christoph Kern (Heidelberg University), Prof. Dr. Dres. h.c. Herbert Kronke (The Hague/Heidelberg University), Prof. Dr. Séverine Menétrey (University of Luxembourg), Prof. Dr. Dr. h.c. mult. Peter-Christian Müller-Graff (Heidelberg University), Prof. Dr. Anne Peters (MPI Heidelberg/Heidelberg University), Prof. Dr. Andreas Piekenbrock (Heidelberg University), Prof. Dr. Ekkehard Reimer (Heidelberg University), Prof. Dr. Marta Requejo Isidro (MPI Luxembourg), Prof. Dr. Hélène Ruiz Fabri (MPI Luxembourg/University Paris 1 Panthéon Sorbonne) and Prof. Dr. Marc-Philippe Weller (Heidelberg University). The Members of the Advisory Board of the research school are Mr Alexis Mourre (Paris), Judge Prof. Dr. Allan Rosas (Turku/Luxembourg), Prof. Dr. Christoph Schreuer (Vienna), Judge Prof. Dr. Mark E. Villiger (Zurich/Strasbourg), President Prof. Dr. Andreas Voßkuhle (Freiburg/Karlsruhe), Sir Michael Wood (KCMG, Cambridge/London). 16 Max Planck Institute Luxembourg for Procedural Law Max Planck Institute Luxembourg for Procedural Law 17

10 Department of Regulatory Procedural Law A d r e s s i n g r e g u l a t i o n, w i t h a s p e c i a l f o c u s o n f i n a n c i a l m a r k e t s a n d b a n k i n g l a w The third Department of the Max Planck Institute Luxembourg, a director of which still has to be appointed, is in its early stages. It addresses legal issues concerning regulation with a special focus on financial markets and banking law from a procedural point of view. Particular attention is devoted to investment funds, for which Luxembourg is an attractive location. In all its strands of research, the Department of Regulatory Procedural Law combines the analysis of substantive rules with an assessment of the regulatory consequences of procedural law, so as to examine the benefits and the drawbacks of filling regulatory gaps through judicial decisions ( regulation through litigation ). Since enforcement is key to establishing the difference between law on the books and law in action, complete command of the increasingly complex financial regulatory framework requires proper understanding of litigation dynamics, and vice-versa. For instance, facilitated access to evidence through discovery mechanisms may drive the outcome of securities litigation and derivative suits, as can the possibility of tailoring procedural rules through arbitration or, to a lesser extent, choice of court agreements. The growing number of national and international disputes provides an unprecedented opportunity to test the effectiveness of the recent capital markets reforms. The Department compares case law in all major jurisdictions in order to keep pace with the most recent developments in the judicial interpretation of financial markets and banking law. Comparative analysis also covers securities litigation and derivative suits, as well as procedural rules on mass claims and negotiated settlements. In a broader picture, private enforcement triggered by profit-oriented market participants interacts with public enforcement in order to ensure effectivity of the law. A key research area is therefore supervision by national and European agencies, which also entails the question of granting financial market participants effective procedural guarantees and legal remedies. In the absence of a worldwide regulatory framework for sovereign defaults, litigation remains crucial in setting the stage for sovereign debt restructuring, an area the Department of Regulatory Procedural Law deals with in coordination with the other Departments. Insolvency of commercial entities including banks and other financial institutions is also an essential research topic. Dr. Matteo Gargantini, Senior Research Fellow A n d r é N u n e s C h a i b After studying both Law and Philosophy in Brazil and having worked as a legal officer for the International Labour Office in Geneva, I decided to pursue a PhD in order to investigate the role of international organisations in the making of international law. Understanding institutional procedures is crucial to assessing the role these organisations play in international lawmaking. In this context, the Max Planck Institute Luxembourg, where Professor Ruiz Fabri has created an extremely diverse and multicultural department, was the ideal setting to continue my work. I have a particular interest in how international organisations redefine the boundaries of international law. Being able to exchange and discuss ideas with researchers from various legal and cultural backgrounds makes working at the Institute a unique opportunity. Contributing to the Institute s projects also helps me expand my understanding of legal procedures in a variety of international settings. 18 Max Planck Institute Luxembourg for Procedural Law Max Planck Institute Luxembourg for Procedural Law 19

11 The Protection of Privacy in Private International and Procedural Law The Max Planck Encyclopedia of International Procedural Law A m u l t i d i m e n s i o n a l r e s e a r c h c h a l l e n g e i n t h e a g e o f t h e i n t e r n e t A n i n n o v a t i v e p r o j e c t i n a l i g n m e n t w i t h o n e o f t h e c o r e b u s i n e s s o f t h e M a x P l a n c k S o c i e t y Which court is competent to decide on the inf- In 2015, the Department of International Law Professor Hélène Ruiz Fabri, as General Editor of ringement of privacy by pictures taken illegally, and Dispute Resolution, under the supervision this project, aims to offer more than 1000 entries false statements and improper information of Professor Hélène Ruiz Fabri, has started desi- to go in depth into up to date topics of internatio- placed on social networking websites? With the gning the web-based Max Planck Encyclopedia nal procedural law. The thousand or more articles internet being available worldwide, which natio- of International Procedural Law. The Encyclope- of the future online encyclopedia will be written by nal courts have jurisdiction to hear these cases? dia has the ambition to mirror the current state around 600 authors worldwide. An Advisory Board What legal standards are applicable to the collec- of this field of cutting-edge research, that is in- composed of approximately 20 recognised senior tion and dissemination of (big) data? Are celeb- ternational procedural law, as well as to repre- experts acting as peer-reviewers will help to achieve rities, ordinary citizens, children and businesses sent our international society through the lens of this objective with the high scientific quality requi- protected by the same standards? Should (big) procedural law. It will focus on all that is related rement expected. businesses and similar stakeholders be free to to procedure, including dispute settlement, be it set the technical and the legal standards of the The ILA Committee on the Protection of Privacy in adjudicatory (legal process of resolving a dispu- Benefiting from the experience transmitted by the cyberworld? What is the proper role of national Private International and Procedural Law focuses te), or non-adjudicatory (negotiation, mediation, editors of the Max Planck Encyclopedia of Public In- and international lawmakers and of national and especially on human rights, data protection, the conciliation) as well as advisory proceedings ternational Law (edited by the MPI for Comparative international courts in this expanding area of relationship with freedoms of speech and religion, and all forms of decision-making in general. Public Law and International Law, Heidelberg), the technical and social change? technical developments, legislation nationally and project is innovative from a content point of view as internationally and recent case-law of national and little research has been performed in the field of in- These are among the issues to be explored and dis- international courts. A first conference on the Euro- ternational procedural law so far. Moreover, thanks cussed by a Committee of the International Law As- pean Court of Justice s judgments in the cases of to the broad variety of fields of expertise gathered sociation (ILA) set up in Its members are ex- Google (and the right to be forgotten), digital rights within the team of the MPI Luxembourg, proce- perts in private international and procedural law and Ireland (the EU data retention directive) and edate- dure will be analysed according to various angles: in data protection and come from different coun- Advertising (infringement of personality rights by historical, sociological, criminal, economical, human tries all over the world. Professor Burkhard Hess, social media) took place in 2014; a book on the rights, investment law and environmental. Director of the Max Planck Institute Luxembourg, conference was published in fall The Commit- chairs the Committee. Dr. Christina Mariottini, for- tee intends to be operative until 2020, and to hold The innovation of the project relies on the develop- mer senior research fellow of the MPI, now working several meetings in different places such as New ment of a specific online platform intended to facili- at the Hague Conference on Private International York, Cape Town and Sydney. Based on the interim tate the collaborative and simultaneous work of the Law, and Professor Jan von Hein (Freiburg) are the results of its research projects, the Committee will multicultural and interdisciplinary team, composed general reporters. ultimately elaborate a resolution on the protection of around twenty MPI researchers involved in the of privacy in present times which will support natio- conception and implementation of the project. nal and international lawmakers in finding a consensus to regulate an important and innovative area of social and economic life. 20 Max Planck Institute Luxembourg for Procedural Law Max Planck Institute Luxembourg for Procedural Law 21

12 One of the first conferences organised at the Institute took place on the occasion of the inauguration of the Max Planck Institute Luxembourg, dealing with Dispute Resolution and Law Enforcement in the Financial Crisis. A general panel discussed regulatory responses to the crisis in financial markets and procedural law and was followed by specific contributions on insolvency law and collective litigation. Scientific Events at the Institute T h e M P I, a s c i e n t i f i c h u b f o r p r o c e d u r a l l a w e x p e r t s International conferences bring together professors and practitioners from Luxembourg, Europe and beyond to discuss recent topics of international and European procedural law and dispute settlement. This format provides a resonance space which is open to the international research community and the wider public to share insights on the latest developments in these fields of law and to commonly think about future paths. Shortly after, a conference addressed the topic Judicial Reforms in Luxembourg and in Europe. With a draft proposal for major reforms of the justice system of Luxembourg on the table, the conference participants took the opportunity to discuss judicial reforms in different European countries in a comparative perspective. A subsequent publication of the conference s results marked the first volume in the book series of the Max Planck Institute. The specificities of dispute settlement in connection with acts of EU agencies were the topic of a conference entitled Judicial and quasi-judicial accountability of European Agencies: The case of the Board of Appeal of the European Supervisory Authorities (ESAs). This conference gathered scholars, representatives of the European institutions and practitioners from all over Europe, including members of the Board of Appeal of the ESAs who reported on their experience after the first period of the Board s activity. A conference on The rule of law and its application to the United Nations took a comprehensive look at the meaning and the consequences of the rule of law for the UN and its specialised agencies concerning their own actions and activities. Not only scholars but also legal advisors of the UN were invited to bring together the academic view and the reality of practice. The participants explored UN activities as diverse as the imposition of sanctions or the administration of Kosovo and discussed, among other topics, modes of judicial and alternative dispute settlement in connection with such activities. 22 Max Planck Institute Luxembourg for Procedural Law Max Planck Institute Luxembourg for Procedural Law 23

13 A major event in 2015 is the launch conference of the Department of International Law and Dispute Resolution which celebrates the inauguration of the Department directed by Professor Ruiz Fabri. Dedicated to the topic of International Law and Litigation, the three panels of the conference feature very prominent participants who will address questions of international procedural law and the making of international decisions. The high-level audience includes international law scholars, practitioners, arbitrators and international judges as well as students at the masters and PhD levels. Luxembourg s presidency of the Council of the European Union offers an opportunity to host a two-day event under the title Transatlantic Trade and Investment Partnership (TTIP) Framing the Adequate System for Investor-State Dispute Settlement. On this occasion, senior representatives of the ministries in Luxembourg and of EU institutions will talk about the expectations and challenges of the TTIP before problems of the investor-state dispute settlement are addressed in the more scientific part of the conference. International workshops provide a forum to discuss recent research topics in a more informal setting. A smaller group of speakers and an audience that might be adapted to the researchers and guests of the Institute can come together, even in an ad-hoc manner, for a discourse on a specific legal topic. Under the title In Whose Name? A Public Law Theory of International Adjudication, another workshop examined the book of the same name in which professors Armin von Bogdandy and Ingo Venzke investigate on whose behalf international courts speak when rendering a decision. The two authors were present and younger researchers of the Institute had the opportunity to engage critically with the authors response and arguments, with the hope of contributing to a better understanding of international adjudication as an exercise of public authority. Another workshop on the topic Civil Justice in China: Recent Developments was able to profit from the presence of two experts of Chinese law as guests at the Institute. Several other specialists of Chinese law from abroad were invited to the workshop, thus bringing together leading scholars from three continents as well as researchers and guests of the Institute who discussed the ongoing reforms of the Chinese judicial system. In this regard an international workshop was held on the Morphology of Judicial Decisions aimed at investigating the mechanisms and mechanics of the internal decision-making of courts, focusing on Constitutional Courts, Supreme Courts and International Courts, from a comparative perspective. Professors and judges of such courts discussed relevant practice in their courts and countries in an open, informal atmosphere. 24 Max Planck Institute Luxembourg for Procedural Law Max Planck Institute Luxembourg for Procedural Law 25

14 Max Planck Lecture Series A m o n t h l y f i r s t - h a n d u p d a t e o n t o p i c a l q u e s t i o n s b y r e n o w n e d e x p e r t s The most prominent academics, practitioners and experts in procedural law from all over the world come to the Institute to give lectures in the Max Planck Lecture Series. Some of the most recent lecturers and their topics were the following: Professor Christopher Hodges (University of Oxford), on Regulatory Approaches to Dispute Resolution Professor Alegría Borrás (University of Barcelona), on The Judgments Project of The Hague: Lessons from the Past and Future Challenges Professor Johan Lindholm (Umeå University, Sweden), on What is the CJEU doing, really? Lessons from an empirical study of case law Professor Bruno Simma (Former Judge at the International Court of Justice and third-party Judge and Arbitrator at the Iran-United States Claims Tribunal, The Hague), on Human Rights before the International Court of Justice Professor Gralf-Peter Calliess (University of Bremen), on Globalization, Europeanization, Digitization: Adapting the Civil Justice System to Changed Legal Needs Professor Armin von Bogdandy (Director, Max Planck Institute for Comparative Public Law and International Law, Heidelberg), on Building New Identities: a Different View on Frontier Research in Law Professor Ki Gab Park (Member of the International Law Commission and Korea University, Seoul, South Korea), on Immunity of State Officials from Foreign Criminal Jurisdiction Professor Giorgio Sacerdoti (Bocconi University, Milan; former Member and President, WTO Appellate Body, Geneva), on The Experience of an International Adjudicator: The WTO Appellate Body and ICSID Arbitration Compared Professor Gabrielle Marceau (University of Geneva; Counsellor, Legal Division, WTO, Geneva), on New Procedural Challenges in WTO Disputes: Preliminary Rulings, the Use of Experts and the Independence of Adjudicators Professor em. Karl-Heinz Böckstiegel (University of Cologne; Arbitrator), on International Arbitration: Where Do We Come From? Where Do We Go? André von Walter (European Commission, Directorate General for Trade, Brussels), on The EU Commission s Approach to Investment Protection and ISDS as Part of the Common Commercial Policy Recent Developments Professor Hannah Buxbaum (John E. Schiller Chair in Legal Ethics, Maurer School of Law, Indiana University Bloomington, USA), on Foreign Governments as Plaintiffs in U.S. Courts Judge Charles N. Brower (Arbitrator, 20 Essex Street, London; Iran-United States Claims Tribunal, The Hague), on The State of Investor-State Arbitration: Is Fear Triumphing Over Experience? 26 Max Planck Institute Luxembourg for Procedural Law Max Planck Institute Luxembourg for Procedural Law 27

15 The External Scientific Members of the Max Planck Institute Luxembourg A v a l u a b l e i n p u t f r o m o u t s i d e W o l f g a n g K n i l l Chief Operating Officer Transfer of knowledge and new ideas are essential for conducting successful research. For this reason, Professor Verica Trstenjak and Professor Marco Ventoruzzo were appointed in 2013 as External Scientific Members of the Institute. The External Scientific Members enrich the research work at the MPI with their practical experience and specific expertise. Coming from different countries and backgrounds, they are able to bring in new views and approaches from their respective institutions abroad. The development of the Institute is thus enhanced by their external view and valuable advice. Verica Trstenjak is professor of European law at the University of Vienna. From 2004 to 2006 she was a judge at the General Court of the European Union and from 2006 to 2012 an Advocate General of the European Court of Justice. Her main research areas comprise constitutional and procedural European Law and European private law, with a special focus on consumer law and intellectual property rights like copyrights. She is a founding member and Council member of the European Law Institute, member of the International Academy of Comparative Law (IACL) and editor of several legal journals (e.g. the European Law Review and the European Journal of Consumer Law). Marco Ventoruzzo is professor of business law at Bocconi University in Milan, Italy, and at Penn State University, USA. His main research areas comprise the regulation of financial markets, corporate law and securities regulations in a comparative and international perspective. He is the Vice Director of the Paolo Baffi Center at Bocconi University, and a research affiliate of the European Corporate Governance Institute (ECGI). Professor Ventoruzzo holds an LL.M. from Yale Law School and a Ph.D. from the University of Brescia. He is a member of the boards of editors of the Rivista delle società, the European Company and Financial Law Review, and the Journal of Financial Regulation. The External Scientific Members add another interesting component to the Institute s international research network. While acting as ambassadors of the Institute abroad, they profit themselves from their attachment to the Institute by exchanging and discussing their latest ideas and projects with an international team of researchers. Setting up an administration from scratch was a very attractive opportunity. When getting operational in 2012, we started with seven people on the Institute s payroll. In order to meet our ambitious growth targets, the recruitment of experienced and committed people became our first main focus. We ended up with a classical structure divided into Information Technology Support, Finance, Human Resources and General Services, adapted to suit our needs. The General Services Department developed an extraordinary expertise in event management, providing a highly appreciated atmosphere during conferences. The Human Resources Department set a focus on application and registration to make sure that people from all over the world received assistance in meeting administrative requirements. Finance helped to manage the particularities of working with the Max Planck Society and the Grand Duchy of Luxembourg. Now that we have a headcount of more than 80 we are driving forward the implementation of facilitating systems in order to increase efficiency. This permanent striving to serve our internal and external clients as well as possible will keep us busy for the next years. 28 Max Planck Institute Luxembourg for Procedural Law Max Planck Institute Luxembourg for Procedural Law 29

16 Library collection C O L L E C T I N G K N O W L E D G E J u j a C h a k a r o v a Head of MPI Luxembourg Library To give birth to a library is an exceptional experience that I am taking on for the second time in my life, as I already established a new modern legal library for the Special Tribunal for Lebanon. The challenges are of course numerous, but I can rely on a team which brings together experienced professionals from nine different cultures (Austria, Bulgaria, Croatia, France, Germany, Italy, Moldova, Spain and Uganda) and the commitment of the MPI Luxembourg researchers and guests. We discuss not only which acquisitions are necessary but also how to create a unique user experience. At the very heart of the Institute, the MPI Library was set up in the fall of Its primary mission is to assist academic law research by providing extensive information through modern technical means. This objective is being secured through continuous building of a comprehensive collection of books, periodicals, databases and other library materials. Focused on the research topics of the MPI, they cover mainly European and comparative civil and procedural law, and dispute resolution as well as decision-making in public international law. A new, tailor-made library classification system has been developed by the librarians in co-operation with the Institute s researchers. The entire collection is available on open access shelving, so that the user can browse it in accordance with the classification. The library Online Public Access Catalog (OPAC) contains the bibliographic records of all monographs and serials held by the Library. The Library currently subscribes to 95 journals in print, while several thousand journals are accessible online. The library collection has also been enriched by significant donations of personal libraries. Thus, the collections of late Professor Giuseppe Tarzia and Professor Adriano De Cupis cover the fields of Italian and European Procedural Law and amount to more than 8,000 volumes. In support of its mission, the Library subscribes to the major law databases online. It also provides access to 24,000 electronic journals and 200 ebooks, all searchable in a single A-Z list via the Library s eresources Portal. Through close cooperation with peer libraries, networks and professional associations, the MPI Library provides a highly valued inter-library loan service. Some of the most important partners are the European Commission Central Library, other Max Planck law institutes, the National Library of Luxembourg, the Peace Palace Library, and the Library of the Court of Justice of the European Union. I am sharing the thoughts of the Argentinian writer Jorge L. Borges: I have always imagined that Paradise will be a kind of library. My intention is that the MPI Luxembourg library will be considered a place of mutual intellectual emulation for researchers and experts interested in the procedural aspects of private and public law. The acquisition policy of the Institute aims at acquiring up to 10,000 publications per year and relies on the expertise and recommendations of the researchers. After less than three years of existence, the collection shelves over 25,000 books in 25 languages, as well as 5,000 bound journals. The Library is accessible to the Institute s members and research guests at any time. Researchers can borrow library materials for their offices using modern self-check terminals. External users are welcome on weekdays from 9:00 to 18: Max Planck Institute Luxembourg for Procedural Law Max Planck Institute Luxembourg for Procedural Law 31

17 External Scientific Fellows in the Institute s Guest Programme E x c h a n g i n g I d e a s w i t h L e a d i n g E x p e r t s The Guest Programme of the Institute A t t r a c t i n g r e s e a r c h e r s f r o m a l l o v e r t h e w o r l d External Scientific Fellows are essential participants in the guest programme. Those special guests, personally invited by the Directors of the Institute, rank among the leading experts in their fields of law which correspond with the Institute s areas of research. Thus, the presence of these prominent scholars offers an ideal opportunity for a fruitful co-operation regarding ongoing research projects: while invited to conduct their research in our library, the External Scientific Fellows might be included in specific projects and events of the Institute. Likewise, they might participate in the academic life of the Institute, by either presenting their work in progress in a department s meeting, speaking at a conference which might take place during their stay, or by delivering a lecture in the Max Planck Lecture Series. To make the MPI Luxembourg the place to be for all those who undertake research in European and international procedural law and dispute settlement this was the idea when the Institute s guest programme was designed in To reach this goal, a concept was realised which attracts both promising young researchers and renowned senior colleagues, with the support of a devoted team to welcome them at the Institute and facilitate their stay in Luxembourg. The Institute s guest programme is open to scholars and practitioners from any country. It provides the opportunity to come to Luxembourg for a shortor medium-term research stay. The guests benefit from the Institute s center-piece our extensive library. In addition to a personal workspace, they receive professional support from our librarians regarding, inter alia, the use of the library and its devices. Guests can enjoy exchanges of ideas with international colleagues as well as with the Fellows of the Institute. The regular research meetings and other events hosted at the Institute, such as conferences and workshops, are excellent opportunities for these exchanges. In that context, the Max Planck Institute Luxembourg offers a number of PhD scholarships every year to support the research stay of foreign scholars at the Institute for up to twelve months. The scholarships enable young researchers to work on their doctoral theses within the Institute s areas of research, i.e. international dispute resolution and comparative procedural law. Selected scholars are offered a working place in the library reading room of the Institute and the opportunity to participate in the regular scientific events and other activities of the Institute. The Institute s guest programme has considerably grown and has proven truly successful as researchers from as many as 35 different countries could be welcomed within the very first two years since its establishment. Recently, we were happy to welcome eleven External Scientific Fellows from many different countries: Professor Dagmar Coester-Waltjen, University of Göttingen Professor Yulin Fu, Law School, Peking University (PKU) Professor Andrea Gattini, Law School of the University of Padua Professor Lorenzo Gradoni, Department of Legal Studies, University of Bologna Professor Constance Grewe, Judge at the Constitutional Court of Bosnia and Herzegovina, Sarajevo Professor Young Joo Ham, Law School, Chung-Ang University, Seoul Professor Ki Gab Park, Law School, Korea University, Seoul Professor Pasquale Pasquino, New York University Professor Hakan Pekcanitez, Galatasaray University, Istanbul Professor Fabrice Picod, Director of the Centre of European Law, University Panthéon-Assas (Paris 2) Professor Margaret Woo, Northeastern University School of Law, Boston 32 Max Planck Institute Luxembourg for Procedural Law Max Planck Institute Luxembourg for Procedural Law 33

18 Scientific Results and Publications of the Institute D i s s e m i n a t i n g k n o w l e d g e The scientific results produced at the MPI are reflected in both of the Institute s own book series, its online Working Paper Series as well as in many national and international journals and other publications. The book series Studies of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law includes doctoral theses written by the Research Fellows of the Institute, conference volumes resulting from events at the Institute and also titles by external colleagues. The conference volume on Judicial Reforms in Luxembourg and in Europe was the first book published in the series in Since then, two further books followed on Judgments of the European Court of Human Rights - Effects and Implementation, edited by Professor Seibert-Fohr and Professor Villiger, and on Protecting Privacy in Private International and Procedural Law and by Data Protection, edited by Professor Hess and Dr. Mariottini. The volume on Comparative Procedural Law The Meeting of Different Generations comprises papers presented at the first IAPL-MPI post-doc school and is the next volume to be published. The second book series, Successful Dispute Resolution, owes its name to the International Max Planck Research School for Successful Dispute Resolution in International Law. The doctoral theses written in the framework of this international research school are published in this series. So far, the following titles have appeared: The Independence of International Courts by Dominik Zimmermann, Die Staatsumschuldung by Jens Benninghofen, and Der vorläufige Rechtsschutz in Schiedsverfahren nach der ICSID-Konvention by Ina Gätzschmann. In addition to that, the Institute is running the MPI Luxembourg Working Paper Series with papers of its researchers, which can be downloaded from the Institute s website. An important part of the Institute s scientific results are also reflected in articles in peer-reviewed journals, conference volumes and other publications. Already in the first full year of its existence, the small group of researchers at the Max Planck Institute Luxembourg has written around 50 publications. In the second year, with more researchers employed, the number increased significantly. D r. P e i L u Before joining the MPI, I studied law at Bejing University and became a Ph.D. candidate at Heidelberg University under the supervision of Professor Hess. My research interests focus on Chinese law and international law of civil procedure. In summer 2015, I completed my dissertation on different procedural mechanisms for a uniform application of civil and commercial law in the adjudicative systems of Germany and China. In that regard, I mainly focused on the proceedings of the respective supreme courts. In fall 2015, I started working as a professor at the University of International Bussines and Economics in Bejing. I chose to come to the Institute in October 2013 since it provides a unique platform for discussing legal topics in a stimulating research environment. The team of more than 30 researchers from various countries and legal cultures has a lively intellectual atmosphere. Due to the proximity of the EU Court of Justice, Luxembourg is an ideal venue for discussing the latest developments in EU law. My own research was stimulated by this environment that I have been able to share with colleagues and guests of the Institute on serveral occasions. For my future career, I would like to transpose the spirit of the Institute to my new place of work. 34 Max Planck Institute Luxembourg for Procedural Law Max Planck Institute Luxembourg for Procedural Law 35

19 The APPEAL Project I n v e s t i g a t i n g a d m i n i s t r a t i v e r e v i e w i n t h e E U The Making of International Judicial and Arbitral Decisions O p e n i n g t h e b l a c k b o x In recent decades, the European Union has increasingly relied on agencies to improve the quality of its administrative action. The conferral The fact that procedural law has gained in im- of powers to independent entities has made ac- portance over time is reflected in the well-known countability key to ensuring the proper exercise maxim according to which not only must justice of the decentralised functions. Among the legal be done, it must also be seen to be done. This is tools deployed to keep the administrative action the general aim of the rules guaranteeing due accountable, an important role is performed by process and fair trial. But no analysis of such the Boards of appeal operating within some EU rules, no matter how sophisticated, can tell the decentralised agencies. whole story about how judicial decisions are ac- EU decentralised agencies across Europe tually made. Lying at the crossroads of administrative and judicial functions, Boards of appeal give rise to a num- Although balancing uniformity and flexibility is far The research programme of the Department of arbitration, the International Criminal Court, the Eu- ber of theoretical and practical questions concer- from easy, the Boards of appeal s organisation re- International Law and Dispute Resolution on the ropean Court of Human Rights, the Court of Jus- ning their nature, their role and their functions. The flects its non-systematic origins, and this normative making of judicial decisions and arbitral awards tice of the European Union, along with some do- development of adjudicative functions outside the fragmentation shows that there is room for further aims at opening up the black box which in many mestic supreme and/or constitutional courts. The traditional judiciary and the relationship between research and, potentially, for regulatory improve- respects still encrypts the decision-making proces- research programme brings into focus the various the Board s role and judicial powers are therefore ment. Whenever divergent rules address similar ses of courts and tribunals. There is no shortage of factors impinging upon the conditions under which particularly suitable for the MPI Luxembourg s in- needs, the identification of best practices may fos- analysis of the end-product of such processes but judges perform their functions, from the identity of terdisciplinary approach. The APPEAL (Appeal and ter coherent solutions in the application and the very little is known about the processes themsel- the claimant (citizens, other judges, States, interna- Procedural reform Project on European Agencies drafting of the applicable rules, as the case may be. ves, their actors and actual power dynamics. Courts tional bodies, etc.) and the type of dispute to be Legal review) research project, which focuses on and tribunals are complex institutions giving rise to settled, to the case-load, time constraints, linguistic the tasks carried out by Boards of appeal, started After some years of operation, the legal framework decision-making practices that cannot be gleaned, factors, the persons involved in the decision-making in 2015 and is conducted in close cooperation with for Boards of appeal can now be tested from the let alone deciphered, from the standpoint of codi- process other than judges, the ways in which draf- the Boards of appeal of the Office for Harmonisa- point of view of its efficiency, too. While the wor- fied bodies of procedural rules. Courts and tribunals ting is actually organised and carried out and the tion in the Internal Market (OHIM) and with the in- kload of some Boards has put procedural rules un- have a number of attributes which set them apart possibility of appending individual opinions. The in- volvement of other equivalent bodies operating in der stress, the relationship between administrative from other political actors and organisations, not in vestigation requires an interdisciplinary framework EU agencies. review, on the one hand, and EU and national judi- the least their legal obligation to render decisions of analysis, where sociological insights intermingle cial review, on the other hand, has highlighted some when correctly seized. with legal analysis. Regular meetings with judges The project aims to provide a detailed mapping of uncertainties concerning the respective role of the and law clerks in the form of closed-shop round- the procedural and institutional rules concerning ad- actors involved. Judicial decision-making is investigated in a wide- tables as well as interviews of actors taking part ministrative review and to assess whether reforms ranging comparative perspective, which includes, in the shaping of judicial decisions will nourish our are needed to help appellate bodies better perform Being both an empirical and theoretical study, the but is not limited to, major institutions like the In- common reflection on possible procedural impro- their role. APPEAL project aspires to trigger reflection among ternational Court of Justice, the International Tribu- vements, for not only must justice be seen to be academics and policymakers on the current state of nal of the Law of the Sea, the World Trade Orga- done, it should also be done ever better. EU administrative review. nisation Dispute Settlement System, investment 36 Max Planck Institute Luxembourg for Procedural Law Max Planck Institute Luxembourg for Procedural Law 37

20 The Max Planck Society T h e M P I L u x e m b o u r g a c o n t r i b u t i o n t o t h e S o c i e t y s i n t e r n a t i o n a l i z a t i o n The Max Planck Institute Luxembourg is one of five institutes located outside Germany and it strongly contributes to implementing the internationalisation strategy of the Max Planck Society. The Max Planck Society is Germany s most successful research organisation. Since its establishment in 1948, no fewer than 18 Nobel laureates have emerged from the ranks of its scientists and some of the highest scientific distinctions have been awarded to its researchers, putting it on a par with the best and most prestigious research institutions worldwide. More than 15,000 publications each year in internationally renowned scientific journals are proof of the outstanding research work conducted at Max Planck Institutes and many of those articles are among the most-cited publications in the relevant field. The scientific attractiveness of the Max Planck Society is based on its understanding of research: Max Planck Institutes are solely built up around the world s leading researchers. They themselves define their research subjects and are given the best working conditions, as well as free reign in selecting their staff. This is the core of the Harnack principle, which dates back to Adolph von Harnack, the first president of the Kaiser Wilhelm Society established in The current 83 Max Planck Institutes conduct foundational research in the service of the general public in the natural sciences, life sciences, social sciences and the humanities. Max Planck Institutes focus on research fields that are particularly innovative, and/or especially demanding in terms of funding or time requirements. Their research spectrum is continually evolving and this continuous renewal enables the Max Planck Society to quickly react to pioneering scientific developments. To ensure that the quality of the research carried out at the institutes meets the Max Planck Society s excellence criteria, the institutes research activities undergo regular quality reviews. The Max Planck Society is an international icon of German research, which is why it attracts scientists from all over the world. More than 6,000 foreign visiting senior and junior researchers work at the various Max Planck Institutes each year. A third of the Max Planck Directors and half of the PhD students hold a non-german passport. Among postdocs, the figure is even higher, at 80 percent. Max Planck Institute for International, European and Regulatory Procedural Law 4, rue Alphonse Weicker, L Luxembourg Tel.: info@mpi.lu Realisation: sciencerelations, Hannover / Berlin, Germany All photos: MPI Luxembourg, except: Fotolia (8), 123RF (18), istockphoto (37) 38 Max Planck Institute Luxembourg for Procedural Law Max Planck Institute Luxembourg for Procedural Law 39