Recueil des cours, Collected Courses, Tome 399

Series:

Atsuko Kanehara:
Reassessment of the Acts of the State in the Law of State Responsibility – A Proposal of an Integrative Theoretical Framework of the Law of State Responsibility to Effectively Cope with the Internationally Harmful Acts of Non-State Actors

Hannah L. Buxbaum:
Public Regulation and Private Enforcement in a Global Economy: Strategies for Managing Conflict

The global regulatory environment has become increasingly dense. It features multiple forms of regulation, including multilateral treaties, administrative rulemaking, self-regulation, and private enforcement in domestic courts. Regulatory institutions operate on national, regional, and international scales—and in an increasing range of substantive fields. Unsurprisingly, this environment engenders frequent conflict among regulatory regimes. These conflicts involve more than just collisions of substantive legal norms. They also involve concerns about the “who” and “how” of regulation. The entity seeking to enforce a particular norm might be a public agency or a private litigant; a particular proceeding might unfold within an international treaty framework or outside it. Such factors affect the degree of resulting conflict quite significantly. Understanding that conflict, and assessing the efficacy of the tools used to resolve it, therefore requires an analysis that accounts for those factors.

The objective of these lectures is to develop a framework for examining conflicts in cross-border economic regulation, and to use it in assessing various regulatory mechanisms. The analysis employs a trans-substantive approach, providing examples from diverse areas including competition regulation, securities regulation, and data privacy. However, instead of organizing the discussion by subject matter, it classifies different categories of conflict—substantive, procedural, and political—and examines each in turn. This approach permits a nuanced analysis of cross-border regulation as it is practiced by different institutions. In particular, it uncovers the layering of different forms of conflict that makes particular modes of regulation especially problematic.

The analysis draws most heavily on the experience in the United States, which permits a special focus on one specific question of regulatory design: the role of private enforcement in transnational regulation. Historically, the United States has been an outlier in its reliance on private civil litigation as a regulatory instrument. Today, though, many other legal systems are engaged in procedural reform intended to support more robust private enforcement. That development has the potential to increase significantly the resources devoted to economic regulation. However, it also risks exacerbating conflict in cross-border cases. Accordingly, one goal of the following analysis is to use the analytical framework developed here to consider possibilities for integrating private enforcement most effectively into the transnational regulatory environment.

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Co-publication with: The Hague Academy of International Law. Atsuko Kanehara, born in Nagoya, Japan. BA, Department of Public Law, Faculty of Law, University of Tokyo (1982). Lecturer and then Assistant Professor, Faculty of Law, Teikyo University (1989- 1993) ; Assistant Professor and then Professor, Faculty of Law, Rikkyo University (1993-2010) ; Professor, Faculty of Law, Sophia University (since 2010).
Advocate for the Government of Japan in Southern Bluefin Tuna cases ( Australia and New Zealand v. Japan) ; Counsel for the Government of Japan in Whaling in the Antarctic case.
Visiting Lecturer of IMO International Maritime Law Institute, Malta (2007-2011, 2018) ; Lecturer of Public International Law, Foreign Service Training Institute, Ministry of Foreign Affairs of Japan (2002, 2006-2011, 2013-2014, 2016). Visiting Scholar, Harvard Law School, Cambridge, United States (1995-1997) ; Visiting Scholar, the Netherlands Institute for the Law of the Sea, Utrecht, Netherlands (January-March, 2009) ; Visiting Scholar at Leiden University, Faculty of Arts, Japanese Studies, Leiden, Netherlands (March, 2008) ; Visiting Scholar at Katholieke Universiteit Leuven, Faculty of Arts, Japanese Studies, Leuven, Belgium (March-April, 2007) ; Visiting Scholar, Georgetown University Law Center, Washington, DC, United States (March-May, 2017).
Member of the Committee of International Law Association for the Legal Issues on Outer Continental Shelf (2000-2010) ; Member of the Committee of International Law Association on Baseline (since 2008) ; Member of Governing Board of United Nations IMO International Maritime Law Institute (since 2018) ; Country Reporter of Japan for the Yearbook of International Environmental Law (1998-2006).
Member of the Board of the Bar Exam of Japan, appointed by Minister of Justice of Japan (2006-2015) ; Councilor of Headquarters for Ocean Policy of Japan, appointed by Prime Minister of Japan (since 2016) ; Policy Advisor for Japan Coast Guard (since 2017).
Executive Council Member of the Japanese Society of International Law (since 2000) ; Director of the Committee on International Programmes of the Japanese Society of International Law (2016-2018) ; Director of the Planning Committee of the Japanese Society of International Law (since 2018) ; Executive Council Member of Japan Branch of International Law Association (since 2009) ; Associate Editor of the Japanese Yearbook of International Law (since 1991) ; Director of the Committee on Japanese Digest of International Law for the Japanese Yearbook of International Law (since 2007).

Hannah Luise Buxbaum, born 9 January 1966, Cologne, Germany.
Vice President for International Affairs, Indiana University ; Professor of Law and John E. Schiller Chair, Indiana University Maurer School of Law.
B.A. in English Literature ( cum laude), Cornell University (1987) ; J.D. ( magna cum laude), Cornell Law School (1992) ; LL.M. (sehr gut), Heidelberg University (1993).
Associate, Davis Polk & Wardwell, New York and Frankfurt (1993-1997) ; Associate Professor of Law, Indiana University Maurer School of Law (1997-2004), Professor of Law (since 2004). Associate Dean for Research (2007-2009) ; Executive Associate Dean for Academic Affairs (2009-2012) ; Interim Dean (2012-2014).
Vice President, American Society of International Law (2017-2019) ; Executive Committee, American Society of Comparative Law (2007-2012) ; Titular Member, International Academy of Comparative Law (since 2012) ; Member, American Law Institute ; Member, Advisory Board, Max-Planck-Institut für ausländisches und internationales Privatrecht, Hamburg, Germany.
Book Review Editor, American Journal of Comparative Law (2006-2011).
Visiting Professor, Université Paris II, Panthéon-Assas (2017) ; Humboldt- Universität zu Berlin (2016) ; Studienstiftung des deutschen Volkes (German National Academic Foundation) Summer Academy, Oberschwaben, Germany (2014) ; Hague Academy of International Law External Programme, Buenos Aires (2012) ; University of San Diego Institute on International and Comparative Law, London (2003) ; Universität zu Köln, Cologne (2002) ; Friedrich-Alexander- Universität Erlangen-Nürnberg (2001) ; Christian-Albrechts-Universität zu Kiel, Kiel (2000).
Scholar in Residence, WilmerHale, London (2016). Fellow, Alexander von Humboldt Research Foundation (2005-2006). Advisor, American Law Institute, Restatement (Fourth) of Foreign Relations Law.
Excerpt from Table of Contents: Reassessment of the Acts of the State in the Law of State Responsibility - Non-State Actors, by Atsuko Kanehara

Introduction
Chapter I. Analysis of the fundamental principle of the attribution of acts to States
Chapter II. International practices with regard to the attribution to States of the acts of non-State actors
Chapter III. Examination in detail of the standards of the attribution to States of the acts of non-State actors for bridging any gaps in attribution to States of the acts of non-State actors and the determination of violations of the due diligence obligation and possible reappraisal of the concept of complicity
Chapter IV. Alternative or seamless applications of the attribution theory and the theory of the due diligence obligation to entail responsibility on States relating to the internationally harmful acts of non-State actors
Chapter V. Complicity
Conclusion
Bibliography


Excerpt from Table of Contents: Public Regulation and Private Enforcement in a Global Economy: Managing Conflict, by Hannah L. Buxbaum

Chapter I. Introduction
Chapter II. Transnational regulation and globalization
Chapter III. Substantive conflicts in transnational economic regulation
Chapter IV. Procedural conflicts in transnational economic regulation
Chapter V. Political conflicts in transnational economic regulation
Chapter VI. Improving the function of private enforcement in transnational economic regulation
Selected bibliography