With the issuing of guidance documents the European Commission assists the Member States in the implementation of Union law. This thesis seeks to unravel the process of governance through guidance... Show moreWith the issuing of guidance documents the European Commission assists the Member States in the implementation of Union law. This thesis seeks to unravel the process of governance through guidance by tracing its role and legal implications in the Dutch legal order.The first part explores the use of guidance documents by Dutch authorities and courts. Along the lines of five types of guidance and four perspectives on their binding force, different roles of guidance are discerned. National courts act as counterbalancing or facilitating actors by reinforcing or downplaying the role of guidance documents in implementation processes.The second part assesses the implications in the light of legal principles. To this end, it formulates four ‘promises’, or ideal effects, that outline how the use of guidance documents could contribute to a predictable, consistent and transparent implementation process, whilst respecting the rule of EU hard law. The analysis finds that, in practice, these ‘promises of guidance’ are not always fulfilled: a gap between promise and practice exists.The findings thus show how the issuing and use of guidance risks to challenge the rule of law that is so fundamental to the EU legal order. This thesis therefore invites to rethink governance through guidance. Show less
This is a study about the roles that investment tribunals accord to domestic courts in the process of arbitrating disputes between States and foreign investors. It investigates the approaches... Show moreThis is a study about the roles that investment tribunals accord to domestic courts in the process of arbitrating disputes between States and foreign investors. It investigates the approaches taken and attitudes held towards domestic courts in the jurisprudence of arbitral tribunals – not only with a view to making sense of this ever-growing jurisprudence, but with the intent to developing a coherent theory on how domestic courts are perceived by international adjudicators. The argument advanced in this study is that these roles can essentially be conceptualized in three ways. First, as partners, in the sense that domestic courts can assist arbitral tribunals in the determination of certain points of fact, as well as of points of applicable domestic law. Second, as suspects, in the sense that their conduct may itself be injurious to the investor and its investment, and as such become the object of scrutiny by arbitral tribunals. And third, as competitors, in the sense that domestic courts, by providing an avenue for redressing injuries suffered by the investor at the hands of a host State’s authorities, can compete with arbitral tribunals as potential fora for resolving investment disputes. Show less
This thesis examines the relationship between courts, administrators, and legislators. The goal is to improve the operation of judicial review in the United States and provide suggestions on how... Show moreThis thesis examines the relationship between courts, administrators, and legislators. The goal is to improve the operation of judicial review in the United States and provide suggestions on how to enhance emerging doctrines of judicial review in the EU. The thesis focuses on how courts, agencies, and legislators interact in order to make and interpret law. Legislators create laws. Administrators apply and interpret laws. Courts review administrators’ actions and interpretations. In so doing, they must give some ‘weight’ to the agency’s interpretation of the statute. This system produces principled outcomes only if there is ‘principled’ communication between legislators, courts, and administrators. This has become increasingly relevant in the United States (due to the proliferation of administrative acts) and in Europe, due to the move towards ‘Better Regulation’ in the EU. Thus, this thesis examines the nature of this ‘principled communication’ in order to help guide the appropriate relationship between courts and administrators. The over-arching research question is: How should courts and agencies interact in order to promote strong and effective law? Show less
