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Big data and its use by artificial intelligence (AI) is changing the way intellectual property is developed and granted. For decades, machines have been autonomously generating works which have traditionally been eligible for copyright and patent protection. Now, the growing sophistication of AI and the prevalence of big data is positioned to transform computer-generated works (CGWs) into major contributors to the creative and inventive economies. However, intellectual property law is poorly prepared for this eventuality. The UK is one of the few nations, and perhaps the only EU member state, to explicitly provide copyright protection for CGWs. It is silent on patent protection for CGWs. This chapter makes several contributions to the literature. First, it provides an up-to-date review of UK, EU and international law. Second, it argues that patentability of CGWs is a matter of first impression in the UK, but that CGWs should be eligible for patent protection as a matter of policy. Finally, it argues that the definition of CGWs should be amended to reflect the fact that a computer can be an author or inventor in a joint work with a person.

The article examines how states talk about the International Criminal Court (ICC, or the Court) through the lens of Albert Hirschman’s exit, voice and loyalty framework. Based on a content analysis...

The EU's Common Foreign and Security Policy (CFSP) was conceived of as an area ill-suited for full judicial review by the Court of Justice of the European Union. The Lisbon Treaty confers on the Court limited jurisdiction which the recent case law has interpreted in broad terms. This article will place this case law in the broader constitutional setting of the EU legal order and will provide a critical analysis of its implications for both the EU's and domestic courts. The analysis is structured on the basis of three main themes. The first is about the position of CFSP in the EU's constitutional architecture: the article will analyse the constitutional ambivalence that characterizes this position and how it is conveyed by the provisions of the Treaty on the European Union and the Treaty on the Functioning of the European Union governing the Court's jurisdiction. The second theme is about the recent case law, and the integrationist approach that the Court of Justice has adopted to the scope of its jurisdiction. The third theme is about national courts: the article will argue that recent case law has been too quick to dismiss them, and that primary law renders them an essential part of the judicial review system governing CFSP.

This article analyses the case law of the European Courts of Human Rights on manifestation of religion or belief under Article 9 echr, excluding particular types of manifestation that are covered in other articles in this special issue. It provides an overview of the main holdings of the Court in this area, together with some critical comments about aspects of the Court’s case law that, in the author’s view, should be improved.

Since 2008 the International Criminal Court has been subject to criticism for being somehow imperialist and some criticism of the Court has pursued a distinctly anti-imperialist narrative. Whilst such criticism is often motivated by political considerations, this article examines whether such narrative can be to a certain extent due to some provisions of the Rome Statute itself, rather than the contingent choices made by Court organs. This involves analysing the law itself for traces of what this article terms ‘inherent imperialism’. This is where the text of an instrument implicitly envisages an unequal or hierarchical legal structure. If some of the Rome Statute’s features can be considered inherently imperialist, this could provide a partial justification for some of the political attacks on the Court’s choices. This article, by providing a theoretical framework, which interprets claims that the law is imperialist, aims to put the anti-imperialist attacks on the Court in perspective.

In its recent decision in Carter v Canada (Attorney General), the Supreme Court of Canada clarified when it is appropriate for courts to reconsider Supreme Court precedent. Accordingly, the Court concluded that a fundamental shift or change in international legal standards that differs from the approach adopted in the original Supreme Court decision is a ground for reviewing previous decisions. In 1999, the Supreme Court concluded that a maternal tort liability does not exist in Canadian common law. This paper will parse whether Canada’s approach to maternal tort liability still accords with international legal standards or whether it is time that the issue should be reconsidered by the courts.

The decisions of the Court of Justice of the European Union (CJEU) have had an immense impact on development of European Union law, and this has raised a critical discussion about how the CJEU establishes and uses case law. Through a comparison with the United States Supreme Court (USSC) and network analysis, this article argues that much of the criticism is based on false expectations as to the nature of the CJEU. We argue that the Court of Justice must be understood as a precedent-driven constitutional court and that, if we take that as our starting point, its approach to case law is quite reasonable.

KONCEPCJA UNII OPARTEJ NA RZĄDACH PRAWA JAKO ARGUMENT PRAWNY PRZED TRYBUNAŁEM SPRAWIEDLIWOŚCI UNII EUROPEJSKIEJNiniejsza praca ma na celu rozważenie koncepcji Unii opartej na rządach prawa, obecnej w prawie Unii Europejskiej, w ramach orzecznictwa Trybunału Sprawiedliwości Unii Europejskiej. Autor podejmuje się analizy ilościowej oraz jakościowej i oceny wskazanego zagadnienia, katalogując ponad 120 poszczególnych orzeczeń Trybunału odnoszących się do „rządów prawa” w powyższym znaczeniu w tym rozważając 95 przypadków, w których omawiane zagadnienie zostało rozważone co do istoty. W ten sposób pytanie badawcze niniejszej pracy brzmi — czy twierdzenie procesowe i argumentacja oparte na „rządach prawa” mają jakiekolwiek szczególne znaczenie dla skarżącego co do prawdopodobieństwa uzyskania korzystnego rozstrzygnięcia przed Trybunałem?

This article reviews recent advances in the study of the European Court of Justice (ECJ) and its political impact at the European and member state levels. New quantitative as well as qualitative an...

In many judgments, the European Court of Human Rights (Court) lists relevant international materials and sometimes uses these documents when determining whether the European Convention on Human Rights has been violated. These materials are often standard-setting documents that originate in the Council of Europe, the Court’s organisational framework. This article analyses the Court’s practice of using such documents, based on a sample of 795 judgments. The analysis serves to provide an answer to the questions of how and why the Court refers to and relies on these documents. More specifically, the article describes the number of judgments and the importance of the judgments in which the Court cites a CoE document, as well as the type of organs and the different documents cited. The analysis continues with a description of the part of the Court’s judgments in which its determination of the question of compliance with the standards in the CoE documents appears and also considers the purposes for which the Court seems to use the materials. Lastly, insight is provided into the relevance of the CoE documents to the Court’s reasoning and explanations are given as to why the Court does (not) follow the standards formulated in a document.

Constitutional courts in Latin America have used judicial review to enhance the relevance of international law in recent years. Some scholars even speak of a growing “constitutionalization of international law” in the region. But these domestic courts can also act as gatekeepers that blunt or entirely deflect the domestic impact of international law. This essay explores three recent episodes in which constitutional courts joined or led efforts to escape treaty obligations: the Venezuelan Supreme Court's judgment urging the Chávez Administration to denounce the American Convention of Human Rights on constitutional grounds, which Chavez then did in 2012 (a court-inspired treaty exit); the Colombian executive's 2013 petition to have Colombia's acceptance of the International Court of Justice's (ICJ's) jurisdiction under the Pact of Bogotá declared unconstitutional (a court-legitimated treaty exit); and the Dominican Republic (DR) Constitutional Tribunal's 2014 judgment holding that the DR's acceptance of the jurisdiction of the Inter-American Court of Human Rights (IACtHR) had been unconstitutional (a court-led treaty exit).

The establishment of the Court of the Eurasian Economic Union has marked another attempt of theEAEU members to set up a regional integration court. Russian legal scholars have embarked theanalysis of the Court Statute and Rules of the EAU Court, including the comparison with the powersof the EurAsEC court which had operated for three years and the competence and organizational activityof the EU Court of Justice. However, some issues remain outside the scope of research in particular,the motives guided by the EAEU members approving the decision on establishing Court andassigning it with a particular jurisdiction which significantly differs from the EUCH powers and EAEUcourt competence. The author of the paper attempts to compensate the gap by examining the Statuteof the EAEU court on the one hand as the reflection of concern and doubts and concerns of themembers on the one hand as the reflection of fears, doubts of the members as to the court being established,and on the other hand as a group of measures to control the new court to avoid or minimizejudgments unwanted for them. The author concludes that seeking balance between independenceand efficiency of the EAEU court and control over the court have not been strategically justified. Thefears and doubts of the states drafting the statute of the Court leads to weakening features of thecourt, which will be instantly seen in the quality of the process of Eurasian integration. The existinglimitations in the court jurisdiction do not promote to the development of its authority and legitimacyeither for potential appellants which may seek protection of rights in other international or nationalcourts to challenge the EAEU courts in EUHRC, WTO court, investment arbitrations or constitutionalcourts of the EAEU members.

This article examines the structure and competences of the Court of the Eurasian Economic Union (eaeu Court). In doing so, it provides a comparative analysis of the eaeu Court with other judicial bodies created in the post-Soviet area, the Economic Court of the Commonwealth of Independent States and the Court of the Eurasian Economic Community (Community Court), as well as in some respects with the Court of Justice of the European Union (cjeu). Summarizing major problems of the eaeu Court and setting out the Court’s first case, the article argues that the rules governing the activities of the eaeu Court represent a significant setback against the progress achieved previously by the Community Court. This setback reflects the lack of political will of the eaeu members to transform the eaeu Court into an effective judicial body similar to the cjeu and their insufficient commitment to the rule of law.

It is generally accepted that the development of a Union of law is largely due to the judicial decisions of the Court of Justice of the European Union (hereinafter, CJEU). With its judicial pronouncements, the CEJEU aims to achieve the same legal effects in every language version of its judgments and, through them, to ensure the uniform application and interpretation of European Union law. Nevertheless, such judicial pronouncements, with normative and binding force, are the result of collegial decisions and drafted by jurists in a language that is usually nottheir mother tongue. In addition, they are also the result of various permutations associated with the necessary legal translation from and to (and vice versa) the working language of the Court and the official languages of the European Union. The published judgments presented as authentic are, in most cases, translations. To understand the construction of decisions of the CJEU is to understand the construction of the European Union law, and by consequence, the European project itself.

This contribution deals with the most recurrent private international law issue brought before the Court of Justice (the Court) over the last six years, i.e. the determination of international jurisdiction in matters relating to tort, delict or quasi-delict, pursuant to what is now Art. 7(2) of Regulation No. 1215/2012. The crucial question in this connection is how to achieve both predictability and a sound administration of justice in a complex legal and technological environment. I argue that the Court has answered this question by embarking upon a path towards consistency between jurisdiction and conflict rules for non-contractual obligations. I seek to show that the merits of the Court’s quest for consistency outweigh the dangers and practical constraints of this approach.

International standards of the right for the freedom of thought, conscience and religion as well as the corresponding case law of the European Court of Human Rights have not been sufficiently studied in the Ukrainian science of international public law. Contemporary researchers should have a clear understanding of what exactly comprises the catalog of international standards of this right, and how such standards are interpreted by the European Court. The Court in its 2014 decision S. A. S. v. France drew such a catalogue in a unique way. It is therefore important to analyze it for understanding and implementing this right. The understanding of standards of the right for the freedom of conscience and religion is not static. It is constantly developed by the case law of the European Court of Human Rights. The Court’s decision S. A. S. v. France is one of the most recent and, perhaps, most controversial decisions on Article 9 of the European Convention on Human Rights, in which the Court drew a catalogue of such standards and gave its interpretation. The analysis of the most recent case law of the Court determines the actuality of this study. The purpose of the article is to make an analysis of the main standards of the right for the freedom of thought, conscience and religion in their interpretation by the European Court in its 2014 decision S. A. S. v. France. The article analyzes nine key standards of the right for the freedom of thought, conscience and religion as outlined in S. A. S. v. France decision. These are the principles that the Court examines each time while considering applications for violations of Article 9. From a researcher’s point of view S. A. S. v. France decision is both interesting and helpful, because here the Court dedicated a special section to the key principles which it had drawn in its previous case law. The difficulty and a controversial character of the decision prompted the Court to make a compilation of its former case law in order to justify its position. This make the decision extremely helpful to the researcher because it became a certain general commentary created by the Court, and which will be referred to as to the main list of rules and principles used by the Court in many years to come.

This Note examines two recent landmark decisions of common law courts which qualify good faith as a ‘general organising principle’ of common law. In a judgment of 2015, MSC Mediterranean Shipping Co v Cottonex Anstalt , the English High Court took the age-old discussion as to whether good faith is a general principle of common law to a new level and acknowledged, for the very first time, the existence of an organizing principle of good faith. In that judgment, the High Court referred to a 2014 decision of the Canadian Supreme Court, Bhasin v Hrynew , in which the Court held that good faith contractual performance is a general organizing principle of the common law of contract which underpins and informs more specific rules and doctrines of common law contract law. Both decisions are highly relevant for arbitrators and counsel in international arbitration, given that the general principle of good faith is not only a rule of substantive law, but is also regarded today as a standard for the time- and cost-efficient conduct of the arbitration.

Twenty-five years ago, in this Journal, Hilary Charlesworth, Christine Chinkin, and Shelley Wright argued that the structures of international law “privilege men.” As shown in Table 1, which summarizes data from a forthcoming article, on nine of twelve international courts of varied size, subject-matter jurisdiction, and global and regional membership, women made up 20 percent or less of the bench in mid 2015. On many of these courts, the percentage of women on the bench has stayed constant, vacillated, or even declined over time. Women made up a lower percentage of the bench in mid 2015 than in previous years on two-thirds of the courts surveyed.

This article considers the effect of a declaration by the African Court on Human and Peoples' Rights that a municipal law is incompatible with the provisions of the African Charter on Human and Peoples' Rights in light of the decision of the African Court in Tanganyika Law Society & Another v Tanzania. It argues that such a decision should have implications for all parties to the African Charter, especially those states that are also parties to the African Court Protocol. The article recognises that this effect is not automatic as the decisions of the Court are denied this expected effect under municipal law by several factors, one of which is the hostility of municipal institutions to an international court judgment that seeks to nullify the established municipal legal status quo.

The Court of Justice of the European Union (ECJ) has been suspected of carrying out a harmonising agenda over and beyond the conventional law-interpreting function of the judiciary. This study aims to investigate empirically two theories in relation to the development of EU copyright law: (i) that the Court has failed to develop a coherent copyright jurisprudence (lacking domain expertise, copyright specific reasoning, and predictability); (ii) that the Court has pursued an activist, harmonising agenda (resorting to teleological interpretation of European law rather than – less discretionary – semantic and systematic legal approaches). We have collected two data sets relating to all ECJ copyright and database cases up to Svensson (February 2014): (1) Statistics about the allocation of cases to chambers, the composition of chambers, the Judge Rapporteur, and Advocate General (including coding of the professional background of the personnel); (2) Content analysis of argumentative patterns in the decisions themselves, using a qualitative coding technique. Studying the relationship between (1) and (2) allows us to identify links between certain Chambers/ Court members and legal approaches, over time, and by subject. These shed light on the internal workings of the court, and also enable us to explore theories about the nature of ECJ jurisprudence. The analysis shows that private law and in particular intellectual property law expertise is almost entirely missing from the Court. However, we find that the Court has developed a mechanism for enabling judicial learning through the systematic assignment of cases to certain Judges and AGs. We also find that the Court has developed a “fair balance” topos linked to Judge Malenovský (rapporteur on 24 out of 40 copyright cases) that does not predict an agenda of upward harmonisation, with about half of judgments narrowing rather than widening the scope of copyright protection.

The author of the paper analyzes the opinions and decisions of the European Court of Justice that established the external competence of the EU to regulate issues in the field of private international law with third countries. Activism of the European Court of Justice, which is reflected in the unique and consistent application of EU legal sources as well as strengthening of EU competence for regulation of this area, has a direct impact on the formation of a coherent legal system and the smooth functioning of the EU internal market. However, such a role of the European Court of Justice can negatively reflect on the relations of the Member States and third countries. The above is a consequence of the fact that the EU will not always have the interest to conclude an agreement in the field of private international law with third countries, i.e. Bosnia and Herzegovina, while in the same time there is a need for the same in the case of some Member States. In this sense, this article discusses the approach according to which the effects of the European Court of Justice Activism in this regard could be mitigated.