Virginia Journal of International Law, Vol. 49-2: Online Symposium

The Virginia Journal of International Law is delighted to continue its partnership with Opinio Juris this week in this online symposium featuring three articles recently published by VJIL in Vol. 49:2, available here.

On Tuesday, Professor Vlad Perju of the Boston College Law School will discuss his article Reason and Authority in the European Court of Justice. Professor Perju’s article proposes a new vision for the European judiciary by presenting the striking case for politicizing the judicial discourse of the European Court of Justice. Contrary to the prevailing view, such a transformation will strengthen, rather than undermine, the Court’s authority. This argument is made in reference to the Court’s current practice of opinion writing. Professor Perju argues that by introducing a practice of concurring and dissenting opinions, the Court can gain the public visibility that will allow it to succeed where past decades of institutional reforms have failed: in forging a common political identity for its citizens. This article demonstrates that the doctrinal, institutional and historical objections to this proposal are unconvincing and bespeak a lack of vision for the future of the Court and the Union in the twenty-first century. Dr. Oliver Gerstenberg of the University of Leeds will serve as respondent.

On Wednesday, Professor Salil Mehra of Temple University and Professor Meng Yanbei of Renmin (People’s) University in Beijing, China will discuss their article Against Antitrust Functionalism: Reconsidering China’s Antimonopoly Law. The authors take a critical look at China’s new Antimonopoly Law (AML), which has been predominantly greeted with doubt about its practical enforceability. In particular, numerous commentators have questioned how the AML can effect change in the government-backed anticompetitive restraints that it targets. However, these doubts are in part the product of a kind of “antitrust functionalism,” in which it is assumed that antitrust goals are uniform across nations and that mechanisms for enforcement must also be universal. Meng and Mehra argue that China’s plan for dealing with so-called “administrative monopolies,” especially local and regional trade barriers, may have surprise successes. In part, the AML provides the possibility of an internal free trade agreement – albeit one with exit options closed. By creating a regulatory space for discussion on internal barriers, the AML could help foster a cooperative solution to the “prisoner’s dilemma” of beggar-thy-neighbor local and regional government action. The potential dynamic could resemble the self-enforcing nature of international trade liberalization. Additionally, the AML can help spark a “competition culture” that may lead to greater consideration of the anticompetitive effects of government action at all levels, including the central government.  The article concludes that while the AML may not be perfect, it could well be a significant step in the right direction. Professor Huang Yong of the University of International Business and Economics in Beijing, China will serve as respondent. Professor Huang is also one of the drafters of China’s Antimonopoly Law

On Thursday, Professor Patrick Keenan of the University of Illinois College of Law will discuss his article Sovereign Wealth Funds and Social Arrears: Should Debts to Citizens be Treated Differently than Debts to Other Creditors. Professor Keenan explains how the emergence of sovereign wealth funds as innovative financial instruments has raised a host of questions about their likely effect on markets and states, and has generated substantial commentary in the international law community. One element of the debate around sovereign wealth funds has focused on what might be called the “Trojan horse” problem: the possibility that states will use sovereign wealth funds—which are nominally private—to make investments that advance their strategic interests against other states rather than maximize wealth. Left out of the discussion is concern for the potential domestic effects of such funds. Recognizing the real risk that abusive or despotic regimes will use sovereign wealth funds as a tool to retain power rather than as a means to fund economic development and improve social welfare, Keenan argues for a domestic development function for sovereign wealth funds. In this ground-breaking analysis, Professor Keenan demonstrates how sovereign wealth funds can provide substantial development assistance to improve the social welfare of people in poor countries while welcoming investments that are likely to have the effect of reducing social welfare in those very same countries. Professor Christiana Ochoa of the Indiana University Bloomington will serve as respondent.

We encourage you to join in the discussion online this week. When the symposium concludes, we hope that you will keep in contact with us through our website to continue the conversation.