Showing posts with label due process. Show all posts
Showing posts with label due process. Show all posts

Wednesday, February 18, 2009

The Creeping 'Authenticity' of Europe's Intrusive Civil Law System

http://www.notaries.org.uk/eu_authentic_acts/eu_authentic_acts.html

The Creeping ‘Authenticity’ of Europe’s Intrusive Civil Law System

English Professional Notaries Blog Embraces & Posts ITSSD Findings on Proposed French Authentic Acts Initiative


By Lawrence A. Kogan


NotaryTalk of England and Wales


February 19, 2009



SYNOPSIS:


France is moving to universalise through European regional harmonisation and extra-EU international commerce, the Napoleonic civil-law requirement of authentic acts/instruments, which potentially affects every conceivable private transaction within and beyond continental Europe. Apparently, Continental European governments are not very concerned about the impact on English common-law evidentiary rules. Such rules form the foundation of the common-law notion of due process on which private property owners depend for their day in court and for legal certainty and protection in common-law jurisdictions. This article identifies how France is working to export the main tenets of its civil-law system of preventive justice throughout global commerce to ‘change’ international law and the Anglo-American free-enterprise system.



To download this article [PDF format], please click HERE


http://www.notaries.org.uk/eu_authentic_acts/files/page52_4.pdf



This article is a longer and more detailed version of the recently released article entitled, Effort to Expand 'Authentic Acts' in Europe Imperils Economic Freedom, published on February 13, 2009 by the Washington Legal Foundation.



[See: France Proposes New EU Ministry of Silly Authentic Acts ala Monty Python that Jeopardizes Anglo-American Free Enterprise, ITSSD Journal on Economic Freedom, at: http://itssdeconomicfreedom.blogspot.com/2009/02/france-proposes-eu-law-ministry-of.html ].


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"NotaryTalk of England and Wales ("NEW") is a forum for the discussion of matters of interest and concern to the Notarial profession in England and Wales, and for providing information about Notaries at the national, European and international levels. This website is owned and administered by Gregory Taylor, Notary Public "




"[T]he organisation representing most of the Notaries in England and Wales is The Notaries' Society whose website (containing a full directory of its members) can be accessed by clicking HERE.



CLICK HERE FOR LIST OF MEMBERS OF 'NEW'".















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Even les notaires de France are now paying attention to our article.


[See: Actualite: The Creeping 'Authenticity' of Europe's Intrusive Civil Law System, Juris Prudentes, Droits Immobilier website at: http://www.jurisprudentes.org/bdd/faqs_article.php?id_article=9455 ; http://www.jurisprudentes.org/ ; http://www.jurisprudentes.org/avocat.htm].



It has come to our attention that, among many or most of the younger Notaries within the 'progressive' notarial community in France, there is a sense that the Continental Notarial establishment is losing the long-term battle of maintaining its unique identity against the 'Anglo-American' model. Perhaps this is why that establishment is desperately trying to fight a 'rear-guard' action based on anti-competitive practices. Whether or not such efforts fail depends on the response from the Anglosphere.

Friday, February 13, 2009

France Proposes New EU Ministry of Silly Authentic Acts ala Monty Python that Jeopardizes Anglo-American Free Enterprise

ITSSD: French 'Authentic Acts' Proposal Jeopardizes Anglo-American Free Enterprise


PRINCETON, N.J., Feb. 13 /PRNewswire-USNewswire/ -- In a short article published by the Washington Legal Foundation, international business, trade and regulatory lawyer Lawrence Kogan identifies how France is working to export two central tenets of Napoleonic civil law preventive justice throughout global commerce to "change" the rule of international law and Anglo-American free enterprise.


Arguably, says Kogan, "Were it not for its uncanny resemblance to Monty Python's timeless skit - The Ministry of Silly Walks, the Sarkozy Government's recent proposal to expand the privileged monopoly long enjoyed by les notaires de France and the intrusive and regulation-prone French legal system would likely have been considered more seriously and opposed by Anglo-American businesses and political leaders."


[http://www.youtube.com/watch?v=IqhlQfXUk7w - Ministry of Silly Walks]

Civil law notaries are agents of the State who possess the ministerial responsibility for issuing 'authentic acts'. Authentic acts are drawn up legal instruments that follow a prescribed form, recognize and provide conclusive evidence that specific private agreements have been reviewed and approved by empowered public officials, and render such agreements legally enforceable in a court of law.

From afar, the Sarkozy initiative appears earnest - a regional harmonization effort designed to promote greater economic 'efficiency', 'consumer protection' and 'legal certainty' within the 27-state Eurozone. A closer inspection, however, reveals that it does not guarantee true reciprocity. Also, it indirectly broadens the scope of governmental oversight and control over private business and personal transactions consummated within and beyond the region.


"Most troubling of all," emphasizes Kogan, "is how civil law preventive justice enables governmental use of authentic instruments, as it does Europe's Precautionary Principle, to undermine common law evidentiary rules and private property rights. Private property owners in contentious justice-based common law jurisdictions depend on substantive and procedural due process to ensure their day in court and the protection of their exclusive rights from government overreach. These fundamental rights will now be jeopardized to the extent civil law judges are required to attach greater probative value to authenticated instruments than to common law notarized private agreements, and are denied the discretion to consider other forms of documentary evidence to resolve legal disputes."


The Institute for Trade, Standards and Sustainable Development (ITSSD) is a non-partisan non-profit international legal research and educational organization that examines international law relating to trade, industry and positive sustainable development around the world. This article is accessible online at:


and


Friday, July 18, 2008

What Aspect of the Irish 'NON' Do the Brussels & Paris Philosopher Kings Not Understand?

http://www.washingtontimes.com/news/2008/jun/14/editorial-check-of-the-irish/


Check of the Irish



Editorial



Washington Times

July 14, 2008



Pronunciation:
\ˈnō\
Function: adverb
Etymology: Middle English, from Old English nā, from ne not + ā always; akin to Old Norse & Old High German ne not, Latin ne-, Greek nē- — more at aye
Date: before 12th century
>1 achiefly Scottish : not b—used as a function word to express the negative of an alternative choice or possibility
>2: in no respect or degree —used in comparisons
>3: not so —used to express negation, dissent, denial, or refusal <no, I'm not going
>4—used with a following adjective to imply a meaning expressed by the opposite positive statement no uncertain terms
>5—used as a function word to emphasize a following negative or to introduce a more emphatic, explicit, or comprehensive statement no, it's gigantic
>6—used as an interjection to express surprise, doubt, or incredulity7—used in combination with a verb to form a compound adjective 8: in negation no>

[See: Merriam Webster's Online Dictionary - http://www.merriam-webster.com/dictionary/no ]


The sky over Europe is not falling. That's the bottom line of Ireland's rejection Thursday of the Lisbon Treaty.


Of the 27 European Union member states, Ireland, the only to require a popular referendum, has usefully tested an otherwise very insulated, elite-driven expansion of EU power. It has rejected the best-laid plans of Commissioner Jose Manuel Barroso and allies. At this point, the EU should realize that its long-term prospects require it to acknowledge the legitimate objections of real, actual voters. This, of course, was the same lesson that went unheeded in 2005, when France and the Netherlands issued comparable "No" votes to the EU Constitution, killing it.


In the runup to Thursday, Mr. Barroso announced with much drama that "There is no Plan B," warning of "a very negative effect for the European Union" before an audience at the European Policy Center, as if he meant it. This, it turns out, was bluster. Now he says: "I believe the treaty is alive and we should now try to find a solution."

The intended solution, which could only be described as a "Plan B," is to press on with the Lisbon Treaty anyway, with some Ireland-only modifications.

Mr. Barroso wants Ireland to resubmit the treaty for a vote once its opt-out clauses are in order. The approach suggests a belief that a treaty that fails its only popular vote faces no questions of mandate or long-term viability. The willful obtuseness here is the real danger to the EU's prospects.

[SO MUCH FOR INDIVIDUAL HUMAN RIGHTS & POLITICAL ACCOUNTABILITY WITHIN THE EUROPEAN UNION!! EUROPEANS BEWARE!! THE BRUSSELS BUREAUCRATS WILL CRAM DOWN ANYTHING THEY WISH IF THE IRISH SUBMIT TO THIS KIND OF INTIMIDATION!!!]


Any political institution that aims for longevity must develop a healthy respect for the public will. The best ones are grounded in it. The sad truth of the EU is that its leadership has never been willing to do this. It openly disdains "the rabble." Mr. Barroso and allies try to avoid public input wherever possible, conducting end-runs around non-elite checks on their authority. They failed to learn the lessons of France and the Netherlands three years ago. This week they fail yet again.

The EU will survive, as will the integrated European economy. The real casualties this week are the credibility of those who made the direst of predictions on Wednesday but little more than 24 hours later were found pledging to carry on as if nothing had happened.
[UNFORTUNATELY, THE PHILOSOPHER KINGS OF MODERN BRUSSELS HAVE FAILED TO LEARN THE TRAGIC LESSON OF THE PHILOSOPHER KINGS OF ANCIENT ATHENS.]

[See: Eva Brann, Plato's Impossible Polity, A review of Plato's Republic: A Study, by Stanley Rosen


["...So, first, who is this philosopher-king for whose benefit the Republic has a metaphysical center? Open the book to its middle by page count and there he is (or she, as Socrates explicitly says)—the central human figure of the dialogue, whose introduction will raise a huge wave of derision. Rosen rightly emphasizes a crucial aspect of these philosophers: they "depend upon the existence of Ideas"; their "most important qualification is to 'see' the Ideas." Accordingly, Rosen has not only explained very clearly in various places what a Platonic idea is—minimally, a formal structure necessary for identifying and speaking about things—but he has also set out lucidly what is problematic about it. He emphasizes that these structures are conceived as patterns or models, and Part III begins with a very illuminating discussion of the several meanings of Plato's term paradeigma. Thus, philosophers have non-sensual patterns to look to. But then the question is: how does that make them fit to be kings? Rosen thinks that Plato has shown only that philosophers are lovers of ideas but not at all how the ideas bestow the practical knowledge required for kingship. I would respond that the Socratic position is that to know the ideas of Courage, Temperance, and Justice is to be courageous, temperate, and just—surely a good beginning for the life of a ruler. The source of the being, growth, and knowableness of the ideas themselves is that notorious Good. It too is, I think, a defensible preoccupation for those who are to govern. Socrates presents it in a simile, a verbal image (eikon). The Good is like the sun in its being and power—except that it has no being, for it is "beyond being" (509 b). Rosen reasonably asks us to accept the idea of the Good as "intrinsic" to the intelligibility of human existence. But then he balks at the one metaphysical feature assigned to it, its "beyond-being."Yet the Good is not quite sufficiently delineated as perhaps "a set of properties of Platonic ideas," nor put aside as "too cryptic to be amenable to an entirely satisfactory explanation." The ancient tradition is that "The Good" was a name for "The One," the comprehending source of unity, the principle of "one-out-of-many," not itself a being but the unity of all beings. It is the very principle of our republic: "E pluribus unum." That is why the philosopher-kings must come to behold it; far from being useless, it is the knowledge of communities, whether of ideal beings in their ontological context or of human beings in their private friendships or in their civic associations. For the philosopher-kings, even if they have, by my notion, no city but only themselves to rule, are yet friends and fellow-citizens. Don't those of us who still teach the liberal arts (the very arts set out in the Republic's curriculum for philosopher-kings) hope to educate citizens in just that way, by asking them to think about what it means to be together as a community emerging from individuals?"]


Monday, June 16, 2008

The Irish People Have Spoken: NO EU TREATY; EU Commission & US Democratic Congress BEWARE!!

http://news.bbc.co.uk/2/hi/europe/7453560.stm

Ireland rejects EU reform treaty

BBC News

June 13, 2008


Voters in the Irish Republic have rejected the European Union's Lisbon treaty in a vote by 53.4% to 46.6%.


The poll is a major blow to leaders in the 27-nation EU, which requires all its members to ratify the treaty. Only Ireland has held a public vote.


The European Commission says nations should continue to ratify the treaty, designed to streamline decision-making.


Irish PM Brian Cowen said he respected the vote but it had caused a "difficult situation" that had "no quick fix".


Leaders of the No campaign said the vote was a "great result for Ireland".

An earlier, more wide-ranging EU draft constitution failed after French and Dutch voters rejected it in 2005.


'Uncharted territory'


The Irish No campaign won by 862,415 votes to 752,451. Turnout was 53.1%.



Mr Cowen said: "The government accepts and respects the verdict of the Irish people."


He said he would work with other EU leaders to try to find an "agreed way forward" but that the bloc was in "uncharted territory".


At the end of the day, for a myriad of reasons, the people have spoken Dermot Ahern, Justice Minister "Ireland has no wish to halt the progress" of the EU, he said.


A referendum was mandatory in Ireland as the country would need to change its constitution to accommodate the treaty.


European Commission President Jose Manuel Barroso said he had spoken to Mr Cowen and agreed with him that this was not a vote against the EU.


"Ireland remains committed to a strong Europe," he said.


"Ratifications should continue to take their course."


France and Germany quickly issued a joint statement expressing regret over the Irish result.


British Foreign Secretary David Miliband said the UK would press on with ratification, saying: "It's right that we continue with our own process."


[THIS IS THE TYPICAL BRUSSELS/GERMANY/FRENCH RESPONSE: WHO CARES WHAT THE PEOPLE SAY?? THEY WILL LEARN THAT WE KNOW WHAT IS BEST FOR THEM! WE SHALL EDUCATE THEM THROUGH REGULATION... See, e.g., UK Labor Party Willing to Give-Away Country's Sovereignty to EU; Does the US Democratic Party Wish to Do the Same for America??, ITSSD Journal on Pathological Communalism, at: http://itssdpathologicalcommunalism.blogspot.com/2008/04/uk-labor-party-willing-to-give-away.html ; Why Europe’s National Politicians Sign Away National Sovereignty , ITSSD Journal on Economic Freedom, at: http://itssdeconomicfreedom.blogspot.com/2008/01/why-europes-national-politicians-sign.html ; Brussels' and Gordon Brown's Contempt for the European People, ITSSD Journal on Economic Freedom, at: http://itssdeconomicfreedom.blogspot.com/2008/01/brussels-and-gordon-browns-contempt-for.html ; Forner UK Prime Minister Tony Blair Was Determined to Modify Public Behavior Through Claude Helvetius’ ‘Education Thru Legislation' Program, ITSSD Journal on Pathological Communalism, at: http://itssdpathologicalcommunalism.blogspot.com/2008/01/forner-uk-prime-minister-tony-blair-was.html ; Roger Helmer - UK Member of EU Parliament - "Straight Talking" Newsletter Dec. 2007, ITSSD Journal on Economic Freedom, at: http://itssdeconomicfreedom.blogspot.com/2008/01/roger-helmer-uk-member-of-eu-parliament.html ; 11/6/07 E-mail Correspondences Between Roger Helmer UK Member of European Parliament & Lawrence Kogan, ITSSD CEO, ITSSD Journal on Economic Freedom, at: http://itssdeconomicfreedom.blogspot.com/2008/01/11607-e-mail-correspondences-between.html .]


Spain has said a solution will be found but Czech President Vaclav Klaus said ratification could not now continue.


Mr Barroso said EU leaders would have to decide at a summit next week how to proceed. He called for the EU to continue focusing on issues of interest to people like jobs and inflation, energy security and climate change.


This is democracy in action... and Europe needs to listen to the voice of the people Declan Ganley, Libertas.

But BBC Europe editor, Mark Mardell, says this is a multiple crisis for the EU - a crisis of rule change, of legitimacy and of morale.


In the end, he says, the Lisbon treaty could be declared dead: some parts of it would be implemented without a treaty, others abandoned, others put in a new treaty when Croatia joins the EU in a couple of years time.

Declan Ganley of the anti-treaty lobby group Libertas said: "It is a great day for Irish democracy." He added: "This is democracy in action... and Europe needs to listen to the voice of the people."


The No campaign was a broad coalition ranging from Libertas to Sinn Fein, the only party in parliament to oppose the treaty.


Gerry Adams, the president of Sinn Fein, said: "People feel secure at the heart of Europe, but they want to ensure there's maximum democratic power."


Confusion


Correspondents say many voters did not understand the treaty despite a high-profile campaign led by Mr Cowen, which had the support of most of the country's main parties.


[ACTUALLY, THE VOTERS WELL UNDERSTOOD THE EU TREATY. IT WOULD DENY EUROPEANS THEIR NATURAL RIGHTS TO DUE PROCESS OF LAW & THE EU TREATY WOULD ALSO ATTENUATE THEIR PRIVATE PROPERTY RIGHTS THROUGH MORE REGULATION & TAXATION. THE IRISH TO NOT WISH TO BE RULED BY BRUSSELS-BASED, SOCIAL WELFARE-STATE-DRIVEN 'PHILOSOPHER KINGS'.]


Jose Manuel Barroso said the EC respected the vote but had hoped for another outcome.


Mr Cowen accused the No camp of "misrepresentation", saying voters had voiced concern about "issues that clearly weren't in the treaty at all", the Irish Times reported.


The treaty, which is designed to help the EU cope with its expansion into eastern Europe, provides for a streamlining of the European Commission, the removal of the national veto in more policy areas, a new president of the European Council and a strengthened foreign affairs post.


[THE EU TREATY MANDATES SURRENDER OF NATIONAL SOVEREIGNTY BY EU MEMBER STATES VIA THE REMOVAL OF THE NATIONAL VETO...]


The treaty was due to come into force on 1 January 2009.


Fourteen countries out of the 27 have completed ratification so far.


Just over three million Irish voters are registered - in a European Union of 490 million people.

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The EU Brussels and National Government Elite Continue to Express Contempt for What the European People Want!!


http://news.sky.com/skynews/article/0,,91211-1318932,00.html?f=rss

EU Treaty 'Not Dead' Despite Irish Vote


Sky News


June 14, 2008


European governments have pledged to continue implementing the EU reform treaty, despite its rejection by Irish voters.


More than half those who cast their ballots said 'No' to the Lisbon Treaty, which requires the support of all 27 EU members.


The Irish Prime Minister says there will be no second referendum - which could result in the treaty being scrapped altogether.


Official results of the treaty referendum showed out of some 1.6m votes cast, 53.4% people said No, while 46.6% said Yes.


The vote means the reforms will no longer come into force on January 1, 2009 as planned. "In theory this should kill the treaty dead," said Sky's political correspondent Glen Oglaza.


"The European Commission chief Jose Manuel Barroso said during the course of this campaign that there is no Plan B.


"Euro-sceptics are pointing out that this was already Plan B - the failed European Constitution was Plan A.


"They want to know how far down the alphabet we are going to go."


However, Mr Barroso argued that despite the referendum outcome, the treaty was "not dead". He said he had spoken to Ireland's Premier Brian Cowen and that "he also believed the treaty is not dead, the treaty is alive".


Mr Cowen, whose Fianna Fail party supported a Yes vote, said he was disappointed but the judgment of the Irish people must be respected.


Irish PM after result announced


"In a democracy, the will of the people - as expressed at the ballot box - is sovereign," he said.
But he added: "We must not rush to conclusions. The Union has been in this situation before and each time has found an agreed way forward."


Gerry Adams, whose Sinn Fein party urged voters to reject the reform, told Sky News: "It's a very good day for Europe and a very good day for Ireland."


The 'No' vote will cause a major headache as it was designed to streamline decision-making for the enlarged EU's 27 member states.


Ireland was the only country to hold a public vote on the Treaty because it would have had to amend its national constitution to enact it.


Foreign Secretary David Miliband said Britain would continue its process of ratifying the Lisbon treaty, despite the setback in Ireland.

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http://www.telegraph.co.uk/news/worldnews/europe/2122996/EU-referendum-Ireland-votes-against-Lisbon-Treaty.html

EU referendum: Ireland votes against Lisbon Treaty


By Tom Peterkin in Dublin


UK Telegraph


June 13, 2008


Irish voters have left Brussels' plans for EU integration in tatters by rejecting the Lisbon Treaty.


Even before all the official Ireland referendum results were announced, Manuel Barroso, the President of the European Commission, conceded that the public had voted against the Treaty.


But despite the result, he still called on other member states to ratify the Treaty. "I believe the treaty is alive and we should now try to find a solution," he said in Brussels.


Dermot Ahern, Ireland's justice minister, said: “At the end of the day, for a myriad of reasons, the people have spoken.”


The result is bad news for Ireland's leader, Taoiseach Brian Cowen, who will have some tough explaining to do when he faces EU leaders at the European Council summit next week in Brussels.


Mr Ahern said he became somewhat despondent and surprised at the opposition to the treaty in the final days of canvassing.


The minister believes high numbers of women rejected the EU deal because of fears over army conscription in a new military alliance.


At the major ballot-counting center in Dublin, Finance Minister Brian Lenihan struggled to speak to reporters as anti-treaty activists jubilantly drowned him out with songs and chants of "No!"


"This is a huge rebuff to the political establishment. It shows there is massive distrust among ordinary working people," said Joe Higgins, the sole Socialist Party member in the Irish parliament.


The decision places massive doubt over the future of the pact designed to bring more European integration.


All 27 European member states have to ratify the treaty for it to go come into force next year. So far it has been approved by 18 members including Britain, but Ireland is the only country to put it to a public vote.


The leaders of the 26 other member states watched with dismay as Ireland voted “no”, a decision that will inevitably lead to much infighting and bickering across Europe.


The main Irish political parties, including Taoiseach Mr Cowen's leading government party Fianna Fail, have fought hard for a Yes vote, with Sinn Fein campaigning against the Treaty.


Despite benefiting from £32 billion in European Grants in recent years, a low turn-out (45 per cent) of the Irish electorate discarded the Treaty, designed to streamline the EU.


The outcome was triumph for a highly-effective No Campaign masterminded by the Libertas group led by the multimillionaire Declan Ganley. Libertas argued that the Treaty would undermine Ireland’s influence in Europe, would open the door to interference in taxation and enshrine EU law above Irish law.


For Brian Cowen, the newly-installed Irish Prime Minister, the result was a disaster. All the main political parties, aside from Sinn Fein, had supported the Treaty and made strenuous efforts to win the referendum.


Mr Cowen now has to face the embarrassment of explaining to his fellow European leaders why he failed to persuade his nation to adopt the Treaty.

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http://newsweek.washingtonpost.com/postglobal/needtoknow/2008/06/ireland_snubs_the_eu.html

Ireland Snubs the EU


By Conor O’Clery


Irish voters, making up a fraction of one per cent of the population of the European Union, have rejected a crucial EU reform treaty by a narrow margin, leaving itself isolated in Europe and the European Union in crisis.


The result stopped in its tracks an accord hammered out in Lisbon, Portugal, to enable European institutions to cope with a rapid EU growth to 27 countries with a population of 495 million people.


The outcome, announced yesterday afternoon, of the referendum held Thursday dismayed and angered governments across Europe, which saw their tortuous negotiations to make EU institutions more efficient thrown into disarray.


The Lisbon Treaty had to be ratified by every country before coming into effect and EU leaders must now find some other way for European integration to go ahead. Twenty-six countries left ratification to their national governments and only Ireland, with 3.05 million voters, staged a referendum, as required under its constitution.


British Prime Minister Gordon Brown will now face furious domestic pressure to hold a once-promised referendum rather than continue to ratify the treaty through parliament. Ireland can only hope that Britain will also reject the treaty: a small country saying no is a problem for the small country, but a big country saying no is a problem for Brussels.


The vote is a slap in the face for the French Government whose foreign minister Bernard Kouchner warned Ireland on Monday that it would be very troubling “that we would not be able to count on the Irish who counted a lot on Europe's money.” Such comments, implying that an ungrateful Ireland would be cast adrift, sounded like bullying to many Irish voters.


What has left veteran European observers scratching their heads in genuine bewilderment is that Ireland of all countries should rebuff the EU, as membership of the European club has allowed Ireland to prosper mightily and to escape from the shadow of Britain, its former ruler.


The result confounded and infuriated the Irish political establishment, which had thrown all its energies into securing a “Yes” vote. The government, the major opposition parties and the biggest labor and farming unions all campaigned for ratification.


It also confounded Ireland’s leading gambling company, Paddy Power PLC, which was so convinced of the outcome it prematurely paid out winnings to people who bet on a ‘Yes’ vote, leaving the company left with “egg on our faces” as a spokeswoman put it.


Irish prime minister Brian Cowen put his personal prestige on delivering a “Yes” vote and is also left with egg on his face. Seemingly unaware how compromised the Irish political class has been by corruption allegations and failures to cope with internal problems such as a dysfunctional health service, he and other government ministers erected posters on every Irish lamp post with their portraits, urging a “Yes” vote.


Opponents of the treaty in Europe cheered on the Irish ‘No” campaign, and British newspapers circulating in Ireland, like the Rupert Murdoch-owned Times, campaigned against ratification, leading to accusations from the “Yes” campaign that Britain's Eurosceptics were waging a proxy war in Ireland.


For the anti-EU Europeans, to paraphrase Winston Churchill, never has so much been done, by so few, for so many, as the Irish have scuppered a treaty which would likely have been rejected by the electorates of several other member countries.


One reason for the “No” vote was that the 287-page document was so full of bureaucratic language that people did not know what they were voting for. The treaty proved impenetrable even to legal experts: the chairman of the independent Irish Referendum Commission, Iarfhlaith O Neill, was embarrassingly unable to answer a technical point at a press conference last week.


[EU BUREAUCRATIC DOUBLESPEAK, LACK OF TRANSPARENCY & ACCOUNTABILITY, and A SENSE OF ELITISM.]


In an ill-tempered national debate, both sides threw around accusation of lies and distortions. A free-market organisation called Libertas formed by Irish businessman Declan Ganley argued that the country’s low corporate tax rate, crucial for international investment, would be jeopardized by the treaty.


The pro-life lobby expressed fears that a loss of sovereignty could mean the end of Ireland’s strict anti-abortion law.


The minor opposition party, Sinn Fein, stirred up concerns that Ireland would lose its cherished neutrality and become part of a militarized Europe. Some voters said they thought they were voting against conscription.


Opponents also argued that Ireland’s influence in Europe would be weakened through the loss its commissioner on the European Commission, the de facto European cabinet, for five out of every 15 years.


The government rejected all these claims, and pointed out that every EU member country would lose their commissioner for similar periods. But as Irish radio presenter Pat Kenny put it, the “No” campaign had all the best tunes.


Anticipating the outcome, the Irish Times thundered its disapproval on Saturday in an editorial headed “Are we out of our minds?” Seeking an explanation for a likely defeat it reflected on “a strange public mood out there that is anti-establishment, anti-authority and anti-politician.”


Ireland’s foreign minister Micheál Martin admitted the result showed a disconnect between EU institutions and its people. Martin, who has to face his fellow EU foreign ministers on Monday to explain what happened, admitted “There was a general sense we were giving away too much power.”


Ireland may try again as it did with a previous EU treaty when it held two referenda in 2001 and 2002 to get a “Yes” vote, but such a move would only confirm the argument that European democracy means everyone agreeing to what the bureaucrats decide.


Conor O'Clery is former chief foreign correspondent of The Irish Times, Ireland's leading national newspaper.

Monday, June 9, 2008

Universalizing the U.S. Constitution and its Accompanying Bill of Rights, Which Together Remain the Only Truly Enforced Declaration of Human Rights

http://www.opiniojuris.org/posts/1210866222.shtml


ITSSD Response to:


Global Governance vs. Liberal Democracy? We are Going to Have to Choose, by John Fonte


OPINIO JURIS


May 18, 2008


Global Governance vs. Liberal Democracy? We are going to have to choose
by John Fonte



I want to thank Peter for inviting me to participate in this discussion. It has been very useful and clarifying. I will close with a few thoughts. Peter's book addresses what will become the major issue of world politics in the 21st century and I'm grateful for his efforts. He has made a strong descriptive case (as has Alex and others), but, in the end, we are all moral human beings interested in the normative.


What we are talking about is the ultimate normative question of politics going back to Plato and Aristotle: who shall govern? For many among Western elites the big idea of the coming century will be how do go beyond the nation-state and national citizenship and create some new form of global governance. In my view (and I realize I'm in a minority in this discussion) global governance (as it has been articulated to date) presents a direct challenge to the legitimacy and authority of the liberal democratic nation-state in general and to American constitutional sovereignty in particular. It is not possible, in my view, to have the new forms of post-national global governance (that have been described in our exchanges) and have, at the same time, constitutional democratic government. At the end of the day, we must choose global governance or liberal democracy?


I choose liberal democracy and its only real historical home, the liberal democratic nation-state as the highest political authority, above any international institution or laws. This is a universal principle and American foreign policy should apply this universally, speaking not simply for American democratic sovereignty, but for the democratic sovereignty of other liberal democratic states as well in arguments over, for example, the International Criminal Court (ICC). Particularly, we should speak up for and protect those democratic nation-states that are under pressure from transnational institutions and forces such as Israel and the Czech Republic (non-ratifiers of the ICC). I will be addressing these issues in my forthcoming (2009) book, Sovereignty or Submission: Will Americans Rule Themselves or be Ruled by Others? (Encounter Books). Thanks Peter. 05.15.2008 at 11:43am


(link)Ron Moss (mail) (www):

Of course global governance presents a direct challenge to the nation-state, just as the formation of tribes presented a challenge to clans and the formation of nations presented a challenge to tribes. It does not present a challenge to democracy. The question is how are Human Rights best served? Individual Human Rights must be the foundation of all governance. The world has become globalized but is not governed globally. We are a world community, like it or not. How can we address climate change other than on a global basis? How can we allow the free flow of capital without global accounting and disclosure standards? How can we protect oppressed peoples other than on a global basis? As the US Constitution says, each human being has rights that no government can take away. No sovereignty, global or local, should be recognized that deprives human beings of their rights.

5.15.2008 2:17pm


(link)nightstallion:

Absolute nonsense. There is no single good reason why the US, Israel and Czechia should not ratify the ICC Statute, period.
5.16.2008 6:39am


(link)Lawrence Kogan (mail) (www):

I believe that Mr. Fonte is correct in his assertion that Americans are not ready or willing to concede the obsolecence of the nation state in furtherance of greater global governance. In fact, they are more likely to object to such a movement than is being represented by the globalists.


I previously engaged in a dialogue with Peter Spiro about the hierarchy of law within the US. I insisted that a treaty is of the same legal significance within the US as is a federal statute (i.e., a legislative promulgation of Congress), and that both are lesser in legal significance than is the U.S. Constitution. In other words, in the case of a conflict, the US Constitution trumps both a federal statute AND a treaty. This truism is absolute insofar as the Supreme Court has ruled that a treaty, like a federal statute, cannot contravene the Constitution and its Bill of Rights and remain legally valid for purposes of US law.


Of course, Peter, being a revisionist, disagrees with this outcome. And, based on his prior statements to me, he endeavors to reinterpret US case precedent and the original intent of the US Constitution (particularly its federal treaty-making clause) for the purpose of facilitating greater US legal harmonization with foreign national and international laws.


There are a number of reasons why the citizens of the U.S., boasting the world's oldest functioning representative democracy, truly a republic, should be reluctant to subject themselves to the evolving bureaucratic institutions of global governance that lack significant checks and balances and public accountability. Chief among the reasons why Americans should resist integration within such institutions, is that such institutions do not recognize, reflect and embody the primacy of natural individual rights, as embodied and incorporated within the U.S. Constitution, its accompanying Bill of Rights and the U.S. Declaration of Independence.


The ICC, like most other international institutions, is at best a compromise between the competing common law vs. civil law institutions of Anglo-American and Continental legal systems. And, we can all see how 'well-functioning' and respectful of individual rights the emerging EU regional Continental legal system is, especially considering how the European national and regional politicians have handled the EU Constitution/EU Treaty issue. In a nutshell, the politicians along with the national and regional governmental bureaucrats trampled on the individual rights of European citizens by misrepresenting the nature of the new treaty, following the prior failed public referenda in 2005. Fortunately, Giscard D'Estaing publicly admitted that the Treaty was merely a subterfuge - a restated and reorganized EU Constitution that the politicans and bureaucrats were trying to cram down the national legislatures without public consent - rule BY law (or rule of MEN).


This continuing disrespect for the rule OF law is symptomatic of European Continental law. While they give lip service to the Universal Declaration of Human Rights and other lofty instruments, they do NOT practice what they preach. For example, European scholars readily admit that under the Continental legal system, guilt is presumed before innocence in the event of an alleged violation of civil or criminal law (e.g., one need only review the bases and modus operandi undertaken in the recent antitrust raids in Europe), whereas under the Anglo-American system, the opposite is true (i.e., the government must show 'probable cause' to issue a warrant). Also, European scholars readily admit that exclusive private property rights are 'negative' rights under the Anglo-American legal system (i.e., contra the rights of other property holders and of the government,) whereas, under the Continental legal system, property rights are deemed as 'positive' rights subject to governmental override when government considers them to be inconsistent with the public/social interest. Hence, European scholars acknowledge that property rights in Europe are ATTENTUATED. I would be pleased to provide Peter with the growing scholarship in this area if he requires a bit of persuasion.


The UN/EU philosophy of climate change as the sin qua non justification for greater global goverance perhaps reflects the greatest attempted mass fraud on the human race ever conceived since the Marxist and Nazi eras. When one looks closely at the emerging regulatory instrument of choice i.e., the nontransparent and overly complex GHG emissions cap &trade system, one can clearly see how no specific emissions reductions achieved by particular emitters can be guaranteed, how the major GHG brokerages on Wall Street and in London's financial district will be the ones to make most of the money, and how energy, goods and services prices of consumers on both sides of the Atlantic will significantly rise, all in the name of 'global governance'. The whole purpose behind a nontransparent regulatory instrument such as this is 'burden sharing' - UN/EU speak for wealth redistribution.


While the world has become more integrated and the interests of diverse peoples have become more closely aligned than ever before, this does NOT suggest that only ONE analyis, ONE solution and/or one set of 'standards' is called for. Nor does it suggest that the only model of governance to address global issues is that of a massive supranational global regulatory welfare state that incorporates values found within EU Continental law and cultural preferences that place the individual secondary to society. Despite my disagreement with Mr. Moss's and Mr. Spiro's proposed global governance prescriptions, I do agree with Mr. Moss' statement concerning the US Constitution. "As the US Constitution says, each human being has rights that no government can take away. No sovereignty, global or local, should be recognized that deprives human beings of their rights."


Now, if globalists wish cover up these and other distinctions in order to 'sell' their brand of Global Governance, they should be well aware that there a number of us out there who will continue to point out and press them on issues that must first be resolved before the US engages in any further global integration. Americans must be educated by Congress about what is at stake. If the globalists are as confident about their new world system as they claim to be, then they should be willing to put their words on the public record for Americans to see. Americans must be ensured that they are to retain at the very least the same rights and opportunities to which they are entitled under the US Constitution and its accompanying Bill of Rights, which was and remains the only truly enforced Declaration of Human Rights. Nothing less would be acceptable.

The U.S. Constitution and its accompanying Bill of Rights remains the only bulwark against the creeping international laws and bureaucratic institutions of the supranational global governance movement. Since that movement seeks to establish the primacy of the global public good over the private good, it would behoove us all if we were to help Americans to quickly become reacquainted with these founding documents and the European history (i.e., the Enlightenment Era) from which they arose.



5.18.2008 12:39pm

Sunday, April 13, 2008

US Constitutional Due Process Protections Do Not Exist in the European Union: You Are Guilty Until Proven Innocent! Why Then, Harmonize With EU?

[READERS SHOULD BE AWARE THAT THE 2008 U.S. PRESIDENTIAL & CONGRESSIONAL ELECTIONS WILL ACTUALLY SERVE AS A PLEBISCITE TO DETERMINE WHETHER THE U.S. SHOULD FURTHER HARMONIZE ITS CONSTITUTIONAL & STATUTORY LAWS WITH THOSE OF EUROPE AND THE REST OF THE WORLD. IF EUROPE IS A 'STRONG DEMOCRACY', RELATIVELY SPEAKING, THAT LACKS CONSTITUTIONAL DUE PROCESS OF LAW AT U.S. STANDARDS, WHICH, AMONG OTHER THINGS, REQUIRES PROBABLE CAUSE BEFORE THE ISSUANCE OF A WARRANT, AND A PRESUMPTION OF INNOCENCE UNTIL ONE IS PROVEN GUILTY, WOULD THEN, SUCH HARMONIZATION ACTUALLY BE IN THE BEST INTERESTS OF AMERICAN CITIZENS???]


http://www.mondaq.com/article.asp?articleid=56284


European Union: European Commission Raids Pharmaceutical Companies To Start Sector Inquiry


18 January 2008


Article by Jonathan Gowdy and Peter J. Edlind


On January 16, 2008, the European Commission launched a sector inquiry into the pharmaceuticals industry by carrying out a series of unannounced inspections of innovative and generic pharmaceutical companies. The targeted companies include both European and U.S. pharmaceutical companies with significant operations in Europe. The inquiry is likely to implicate important and controversial issues regarding the intersection of competition and intellectual property law, including the legality of patent litigation settlement agreements and conduct relating to the procurement and enforcement of intellectual property rights.


The sector inquiry is generally designed to provide the Commission with insight into commercial practices within the pharmaceutical industry; however, it was launched in response to the Commission’s concern that competition in the European pharmaceutical sector may not be working as it should. Specifically, the Commission noted that there has been a significant decrease in novel and generic medicines for human consumption entering the European pharmaceutical market in recent years.


The sector inquiry also follows two recent and significant enforcement actions by the Commission against firms in the pharmaceutical sector. In 2005, the Commission fined AstraZeneca €60 million for providing misleading representations to patent offices in the EU, and thereby restricting the entry of generic medicines to the market. Last year, the Commission also started proceedings against Boehringer for alleged misuse of the patent system to exclude competition in the area of chronic obstructive pulmonary disease drugs.


The Commission’s sector inquiry will focus on similar business practices; indeed the Commission’s announcement indicated it would examine whether the investigated parties’ exercise of patents and agreements between competitors, such as terms for litigation settlement agreements, are compatible with the EC Treaty’s rules on restrictive business practices. In addition, the inquiry will examine potential abuses of dominant position by market actors, including possible misuse of patent application procedures or frivolous lawsuits to prevent or deter launches of generic alternatives.


Enforcement actions in the United States on patent settlement agreements have proven controversial and even resulted in policy disagreements among the two U.S. antitrust agencies (i.e., the Department of Justice and the Federal Trade Commission) about the proper application of the antitrust laws. In addition, antitrust claims in the U.S. based on frivolous litigation or misuse of the patenting process generally must satisfy a high standard of proof. Thus, if the Commission’s sector inquiry results in any enforcement actions, they are likely to generate significant debate.


[DEAR EUROPEAN COMMISSION, WE IN AMERICA REFER TO THE SO-CALLED 'HIGH STANDARD OF PROOF' AS CONSTITUTIONAL DUE PROCESS OF LAW]


Finally, this sector inquiry is also notable because it is the first in which the Commission commenced the inquiry with dawn raids. (The Commission has in recent years carried out sector inquiries in the telecommunications, energy and financial services sectors, but all of these were initiated by sending out questionnaires to the targeted companies.) According to the Commission, the motivation to secure information in this manner stemmed from the fact that the information sought is usually considered by companies to be highly confidential and "may also be easily withheld, concealed or destroyed."


The Commission also recently used dawn raids in a merger investigation to investigate whether parties had integrated their business operations prior to obtaining clearance under the EU’s merger control regulations. It remains to be seen whether the Commission will continue to expand the use of dawn raids in non-cartel investigations; however, firms should ensure that their employees and in-house legal department are prepared for such an event.


The first results of the pharmaceutical sector inquiry are expected to be published in an interim report by the Commission this autumn and a final report due in the spring of 2009. Any subsequent competition law enforcement actions by the Commission (or EU member state competition authorities) against individual companies would be launched outside the framework of the sector inquiry.


Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.


© Morrison & Foerster LLP. All rights reserved

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http://www.ft.com/cms/s/0/4da369fa-c49e-11dc-a474-0000779fd2ac.html?nclick_check=1


Big drug companies raided in EU probe


By Andrew Jack in London and Tony Barber in Brussels


Published: January 17 2008 02:00 Last updated: January 17 2008 02:00


European regulators raided some of the world's biggest pharmaceutical companies yesterday in an inquiry into whether they conspired to keep up the price of drugs after patents expired.


Pfizer, GlaxoSmithKline, AstraZeneca and Sanofi-Aventis were among those that confirmed they had been visited as part of a European Commission-led probe into delays in the launch of low-cost generic drugs. Teva, the world's biggest generics company, was also targeted.


The inquiry will focus on whether the industry has abused patent rights to delay the introduction of low-cost generic alternatives. It will assess whether companies have made spurious attempts to extend the life of intellectual property rights or cut deals with one generic rival to the exclusion of others.


[WELL, THAT CERTAINLY JUSTIFIES SUSPENSION OF DUE PROCESS, DOESN'T IT!!]


The EU is increasingly concerned about the rising cost of medicines and declining innovation.


[WHY NOT THEN, PROVIDE A LEGAL ENVIRONMENT THAT PROMOTES MARKET-BASED INNOVATION, TECHNOLOGY TRANSFER AND COMMERCIAL LICENSING AND REDUCES NEEDLESS BUREAUCRATIC REGULATORY COSTS??]


Neelie Kroes, competition commissioner, said: "If we have the feeling that something is rotten in the state, then let's take the opportunity to find out."


[MS. KROES ACTS MORE LIKE A REGULATORY DICTATOR THAN A DIRECTOR - IS THE BUREAUCRATIC POWER GETTING TO HER HEAD??]


The raids, which began on Tuesday, broke with Commission practice in that no advance notice was given. Previous sectoral inquiries were launched with questionnaires sent to companies.


"It's certainly novel and rather aggressive, even. Dawn raids presuppose that the Commission has got a whiff of something they want to investigate," said one Brussels-based lawyer specialising in competition issues.


Europeans spent €200bn (£150bn) a year on pharmaceuticals, or €400 each, Ms Kroes said.


"If innovative products are not being produced, and cheaper generic alternatives to existing products are in some cases being delayed, then we need to find out why and, if necessary, take action," she added.


[SOUNDS LIKE THE EUROPEAN COMMISSION IS ORDERING PHARMACEUTICAL COMPANIES TO PRODUCE INNOVATIVE HEALTH CARE PRODUCTS. SOUNDS LIKE THE 4TH REICH!!]


The Commission stressed that its visits were the starting point for a broad inquiry, rather than a response to "positive indications of wrongdoing" by the targeted companies. It said that the "unannounced inspections" were designed to gather "highly confidential . . . information [which] may also be easily withheld, concealed or destroyed".


[THIS ACTUALLY SOUNDS LIKE A 'FISHING EXPEDITION'. DOES THE EUROPEAN COMMISSION HAVE WHAT WE CALL IN THE UNITED STATES, 'PROBABLE CAUSE'???]


The inquiry is set to issue interim findings by the autumn and final results in spring 2009. It will examine whether pharmaceutical practices infringe EU treaty prohibitions on restrictive practices.


The generic drugs industry, which produces cheaper but chemically identical versions of medicines once their patents expire, has long accused innovative drug manufacturers of "ever-greening", or using spurious grounds to delay competition by extending their exclusive intellectual property rights.


[OF COURSE THEY HAVE! THEY'RE IN COMPETITION WITH THE BRAND NAME COMPANIES!! THEY WANT WHAT THOSE COMPANIES HAVE, FOR FREE!]


Pfizer, GSK, Teva, Sanofi-Aventis, AstraZeneca, Boehringer-Ingelheim and Merck of the US all confirmed that they were contacted by commission officials. Most would make no further comment. "We are co-operating with the inquiry," said AstraZeneca.

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http://www.ft.com/cms/s/0/eb99c8a8-c49d-11dc-a474-0000779fd2ac.html?nclick_check=1


Pharma feels the heat as Brussels scrutinises competition


By Andrew Jack in London and Tony Barber in Brussels


Published: January 17 2008 02:00 Last updated: January 17 2008 02:00


The European Commission probe into the pharmaceutical industry, announced yesterday, illustrates how regulators are turning up the heat on a sector already suffering from falling productivity, growing competition and public discontent with the rising prices of new -medicines.


Competition lawyers say the inquiry also reflects a new appetite in Brussels for tackling intellectual property issues, driven by its success in cases such as the Microsoft prosecution, its growing experience in the drug industry and parallel moves by US regulators.


"The Commission is making sure everyone knows that it has decided to pursue a proactive, pro-competition agenda," said one Brussels-based lawyer.


[WHAT THIS LAWYER MEANT TO SAY IS THAT THE COMMISSION WANTS EVERYONE TO KNOW THAT THEY DON'T HAVE ANY CONSTITUTIONAL DUE PROCESS RIGHTS TO WHICH THE 'STATE' (EU COMMISSION) IS SUBJECT!!]


In 2005, the Commission fined AstraZeneca, the Anglo-Swedish group, €60m ($87.9m, £44.8m) in a ground-breaking case that highlighted practices likely to come under scrutiny in the latest investigation.


AstraZeneca, which is appealing the ruling, was found guilty of abuses to prevent generic rivals from competing against Losec, its anti-ulcer medicine.


It was accused of extending the duration of its intellectual property rights unfairly by providing misleading dates for its first filing with regulators in Europe.


It also de-registered older formulations of the drug in some countries, which added barriers to efforts by generic players to win regulatory approval for copies.


[THIS AMOUNTS TO A 'TAKING' OF PRIVATE PROPERTY FOR 'PUBLIC USE' WITHOUT 'JUST' COMPENSATION IN THE UNITED STATES]


Greg Perry, head of the European Generic Medicines Association, the trade body, said he welcomed the EU probe on condition that it studied issues of concern to his members.


These include "frivolous litigation", by which drug companies seeking to protect patents have succeeded in winning injunctions and authorisation for bailiffs' raids against generic rivals in lower courts across Europe to stall the launch of cheaper medicines.


He also expressed concern about "ever-greening", by which drug companies win additional patent protection on medicines by filing for minor modifications, such as reformulations to allow a pill to be taken once rather than twice a day.


Nellie Kroes, EU competition commissioner, said yesterday: "Pharmaceutical markets are not working as well as they might. Patent protection has never been stronger, but the number of patents coming to market has been declining."


[SOUNDS JUST LIKE THE STATEMENT OF A PHILOSOPHER KING BUREAUCRAT!]


The EU's probe may not prove entirely comfortable for generic companies. One practice likely to be scrutinised is when a pharmaceutical company pays a generic rival to drop a legal challenge to patents on its drugs.


[THIS IS A BACKHANDED WAY OF WARNING THE GENERIC COMPANIES THAT, IF THE EU COMMISSION CAN GET AWAY WITH DEPRIVING THE BRANDED PHARMA COMPANIES OF CONSTITUTIONAL DUE PROCESS, THEN THE GENERIC MANUFACTURERS ARE LIKELY TO BE TARGETED NEXT AND DEPRIVED OF THEIR CONSTITUTIONAL RIGHT TO DUE PROCESS! IN OTHER WORDS, WHAT GOES AROUND, ULTIMATELY COMES AROUND]


Another tactic involves signing an exclusive deal with an "authorised" generic manufacturer, and agreeing commercial terms that limit the normal sharp erosion in price of a generic medicine from that of the patented medicine on which it is based.


Nevertheless, the relatively modest discounts that often result in Europe - far less than in the US - are not simply the result of deals between companies. They also reflect national governments' policies on drug reimbursement and protectionism.
Copyright The Financial Times Limited 2008

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http://www.economist.com/world/europe/displaystory.cfm?story_id=9832900


Charlemagne


Brussels rules OK


Sep 20th 2007


From The Economist print edition


How the European Union is becoming the world's chief regulator


A VICTORY for consumers and the free market. That was how the European Commission presented this week's ruling by European judges in favour of its multi-million euro fine on Microsoft for bullying competitors. American observers had qualms. Would a French company have been pursued with such vigour? Explain again why a squabble among American high-technology firms ends up being decided in Brussels and Luxembourg (where Euro-judges sit)? One congressman muttered about sneaky protectionism and “zealous European Commission regulators”. It certainly seemed zealous of the competition commissioner, Neelie Kroes, to say that a “significant drop” in the software giant's market share was “what we'd like to see”.


More broadly, the ruling confirms that Brussels is becoming the world's regulatory capital. The European Union's drive to set standards has many causes—and a protectionist impulse within some governments (eg, France's) may be one. But though the EU is a big market, with almost half a billion consumers, neither size, nor zeal, nor sneaky protectionism explains why it is usurping America's role as a source of global standards. A better answer lies in transatlantic philosophical differences.


The American model turns on cost-benefit analysis, with regulators weighing the effects of new rules on jobs and growth, as well as testing the significance of any risks. Companies enjoy a presumption of innocence for their products: should this prove mistaken, punishment is provided by the market (and a barrage of lawsuits).


The European model rests more on the “precautionary principle”, which underpins most environmental and health directives. This calls for pre-emptive action if scientists spot a credible hazard, even before the level of risk can be measured. Such a principle sparks many transatlantic disputes: over genetically modified organisms or climate change, for example.


In Europe corporate innocence is not assumed. Indeed, a vast slab of EU laws evaluating the safety of tens of thousands of chemicals, known as REACH, reverses the burden of proof, asking industry to demonstrate that substances are harmless. Some Eurocrats suggest that the philosophical gap reflects the American constitutional tradition that everything is allowed unless it is forbidden, against the Napoleonic tradition codifying what the state allows and banning everything else.


[THIS SOUNDS EERILY SIMILAR TO HOW THE 110TH CONGRESSIONAL MAJORITY IS TRYING TO CHANGE U.S. LAWS, AND WHAT MADAME CLINTON RECOMMENDS AS A 'SOLUTION' TO AMERICA'S PROBLEMS, & MONSIEUR OBAMA TOUTS AS THE TYPE OF 'CHANGE' NEEDED IN AMERICA!!]


Yet the more proscriptive European vision may better suit consumer and industry demands for certainty. If you manufacture globally, it is simpler to be bound by the toughest regulatory system in your supply chain. Self-regulation is also a harder sell when it comes to global trade, which involves trusting a long line of unknown participants from far-flung places (talk to parents who buy Chinese-made toys).


A gripping new book* by an American, Mark Schapiro, captures the change. When he began his research, he found firms resisting the notion that the American market would follow EU standards for items like cosmetics, insisting that their American products were already safe. But as the book neared completion, firm after firm gave in and began applying EU standards worldwide, as third countries copied European rules on things like suspected carcinogens in lipstick. Even China is leaning to the European approach, one Procter & Gamble executive tells Mr Schapiro, adding wistfully: “And that's a pretty big country.”


The book records similar American reactions to the spread of EU directives insisting that cars must be recycled, or banning toxins such as lead and mercury from electrical gadgets. Obey EU rules or watch your markets “evaporating”, a computer industry lobbyist tells Mr Schapiro. “We've been hit by a tsunami,” says a big wheel from General Motors. American multinationals that spend money adjusting to European rules may lose their taste for lighter domestic regulations that may serve only to offer a competitive advantage to rivals that do not export. Mr Schapiro is a campaigner for tougher regulation of American business. Yet you do not have to share his taste for banning chemicals to agree with his prediction that American industry will want stricter standards to create a level playing-field at home.


Winning the regulatory race


One American official says flatly that the EU is “winning” the regulatory race, adding: “And there is a sense that that is their precise intent.” He cites a speech by the trade commissioner, Peter Mandelson, claiming that the export of “our rules and standards around the world” was one source of European power. Noting that EU regulations are often written with the help of European incumbents, the official also claims that precaution can cloak “plain old-fashioned protectionism in disguise”.


Europe had no idea the rest of the world was going to copy its standards, retorts a Eurocrat sweetly. “It's a very pleasant side-effect, but we set out to create the legislation we thought that Europe needed.” At all events, America's strategy has changed. Frontal attempts to block new EU regulations are giving way to efforts to persuade Brussels to adopt a more American approach to cost-benefit analysis. That would placate students of rigour, who accuse some European governments of ignoring scientific data and pandering to consumer panic (as shown by European campaigns against “Frankenstein foods”).


But rigour can quickly look like rigidity when it involves resisting competition. There is a genuine competition to set global regulatory standards, as Europe and America have discovered. There are also rising protectionist pressures. Perhaps zealous EU regulators may be what jumpy consumers need if they are to keep faith with free trade and globalisation. Viewed in such a light, even Microsoft's champions might hope that this week's verdict will help global competition in future.