Columbia Journal of European Law Online Writers Forum

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1 THE COLUMBIA JOURNAL OF EUROPEAN LAW ONLINE Columbia Journal of European Law Online Writers Forum On February 22-23, the CJEL Online hosted the first edition of the annual Writers Forum at Columbia Law School. Speakers from Columbia s student and academic community presented their thesis on matters concerning European Law in front of a receptive audience of fellow students and professors. See abstracts: Fabian Klaber, Linking the Swiss Carbon Market with the European Union Emissions Trading System: Risks and Chances David Ragazzoni, Public opinion as popular sovereignty: Reactivating the represented people through Lippmann, Schmitt and Dewey Luzi Cavelti, Information Exchange in International Tax Law Comparison between Policies in the United States and in Europe Editorial Presentation, Jacopo Crivellaro, The UK Takeover Code: Economic Concerns of a Pro-Target Focus

2 Linking the Swiss Carbon Market with the European Union Emissions Trading System: Risks and Chances Fabian Klaber In December 2011, the United Nations Climate Change Conference in Durban, South Africa, came to an end. After tough negotiations, the 195 Parties to the United Nations Framework Convention on Climate Change (UNFCCC) agreed on a few key outcomes. Besides the launch of a process that should give rise to a binding agreement to take effect in 2020 and the formal implementation of a Green Climate Fund, the European Union (EU) and other developed countries (including Switzerland) committed themselves under a second period of the Kyoto Protocol which starts next year and ends either in 2017 or in As they did for several years, both the EU and Switzerland will rely predominantly on a cap-and-trade system to achieve their reduction targets for the second commitment period. Although the reduction targets are not finalized yet, the EU and Switzerland pledged to reduce their greenhouse gas emissions by 20% to 30% compared to 1990 levels. The basic principle of the European Union Emissions Trading System (EU ETS) is similar to the Swiss Emissions Trading System (CH ETS): The overall greenhouse gas emissions of the covered installations may not exceed a defined cap. For this purpose, market participants receive emission allowances which they can sell to or buy from one another as needed. Yet, a more detailed analysis brings out several significant differences. While the EU ETS covers some high-emitting installations, the CH ETS includes only around 400 businesses. * Contrary to the EU ETS, these 400 businesses participate in the cap-and-trade system on a voluntary basis. After all, the EU ETS applies to aviation which is currently not considered by the CH ETS. * The installations that are covered by the EU ETS are responsible for roughly half the 4.9 Gt CO 2 eq. emitted annually by the EU. The CH ETS applies to around 6.5% of the 52 m tons CO 2 eq. emitted annually by Switzerland. 1

3 JURISTISCHE FAKULTÄT In March 2011, the European Commission and the Swiss government entered into negotiations on the linking of the EU ETS with the CH ETS. Although, the linking is considered beneficial by both parties, it shall be taken into account that the project comprises risk potential as well. The talk at the CJEL Writers Forum 2012 aims at identifying the differences between the EU ETS and CH ETS as well as the risks and chances that come along with the linking of the two systems. 2

4 Columbia Law School (22-23 February 2012) Public opinion as popular sovereignty: Reactivating the represented people through Lippmann, Schmitt and Dewey ABSTRACT. The present paper suggests that contemporary democratic theory should reinvestigate and defend public opinion as an active, crucial expression of popular sovereignty in representative democracy. It does so by recovering and critically studying a missed piece in the mosaic of 20 th century political thought history, i.e. the hidden dialogue among Walter Lippmann (1922: Public Opinion), Carl Schmitt (1923 and 1926: The Crisis of Parliamentary Democracy) and John Dewey (1927: The Public and its Problems). From different perspectives, all of them questioned the traditional understanding of the peoplehood/ public opinion/ popular sovereignty relation and provided a clash of liberal and anti-liberal perspectives with long lasting implications on the canon of XX century political thought. I argue that revisiting Schmitt s visceral anti-liberalism and his theory of the public from the standpoint of Lippmann and Dewey s debate sharpens the teeth of contemporary democratic theory against present-day plebiscitary and populist challenges. In particular, via Dewey I suggest that conceptualizing public opinion as one side (together with electoral will) of popular sovereignty helps countering both recent trends in populist ideology, monopolizing the appeal to the sovereign people and depicting citizens as a monolithic entity (à la Schmitt), and the skeptical elitism à la Lippmann, conceiving the people as uninterested, depoliticized economic actors incapable of reflective sovereignty vis-à-vis technocratic government. Taking a step further than Dewey, I argue that when public opinion is understood as an everyday set of claims and counter-claims by the people, it becomes a negative power subjecting to perpetual scrutiny institutional politics beyond the anti-liberal myth of a univocal we and the neo-schumpeterian image of electoral democracy. Rephrasing Canovan, Rosanvallon and Urbinati s claims, it proves to be the tool democratic citizens have at their disposal as people in reserve to reemerge as people in action in everyday political life. The first three sections provide a comparative analysis of the way Lippmann, Schmitt and Dewey questioned the relation between public opinion, liberalism and democracy. In particular, section II explores the different understanding they had of how the conception of man is relevant for political theory: developing on Ellen Kennedy s work, I argue that, while the two American liberals based their ideal democracy on a specific conception of the democratic man and his mind (anthropology), the German antiliberal developed his plebiscitary, homogeneous democracy moving from the questioning of the democratic people and their identity (demology). Hence, as suggested in section IV, the common thread in their works rather lies in the perception they all had, from different angles, of the inescapable symbolic dimension of mass democratic politics and of the challenges posed to liberal parliamentarism. Section III subjects the well-known Lippmann-Dewey debate to fresh examination in order to distill relevant hints for strengthening contemporary democratic theory and its understanding of public opinion. Finally, section V ties together the threads previously emerged: through Honneth and Posner, it argues that critically developing the emphasis Dewey reserves to the communicative and reflective dimension of citizenship would help contemporary democratic theory to disclose the exercise of popular sovereignty within interelectoral politics through opinion and judgment rather than the will. David Ragazzoni PhD candidate in Political Theory Scuola Superiore Sant Anna, Pisa (Italy) Visiting scholar in Political Theory Dept. of Political Science, Columbia University

5 Information Exchange in International Tax Law Comparison between Policies in the United States and in Europe Luzi Cavelti University of Bern, Switzerland In June 2008, the U.S. Department of Justice and the Internal Revenue Service sought information about U.S. account holders through a John Doe summons against Union Bank of Switzerland (UBS), the second largest European bank. During this process, UBS admitted that certain bankers and managers had assisted U.S. taxpayers to conceal their offshore accounts from the Internal Revenue Service. The case was finally settled after the U.S. and Swiss governments stepped in and concluded an agreement in August 19, Pursuant to this agreement, UBS was required to disclose the names of 4,450 U.S. taxpayers with an UBS account. The UBS case is remarkable for two reasons: First, it is the first time a bank has ever disclosed even a limited number of U.S. account holders to the Internal Revenue Service notwithstanding that the bank was subject to bank secrecy rules. Second, and even more remarkable, is that the Internal Revenue Service was able through a stick and carrot policy approach to obtain the names of more than 30,000 affluent U.S. taxpayers and to gain an invaluable insight into the 1

6 offshore tax evasion industry. The UBS case will thus go down in history as a milestone and turning point in the emergence of a new information exchange system. The talk at the Columbia Journal of European Law Writers Forum 2012 compares the U.S. stick and carrot approach with competing policies in the European Union, in Switzerland and the OECD. In particular, it will focus on the automatic information reporting and the idea of a final withholding tax. ***** 2

7 THE COLUMBIA JOURNAL OF EUROPEAN LAW ONLINE THE UK TAKEOVER CODE: ECONOMIC CONCERNS OF A PRO-TARGET FOCUS Editorial Presentation: Jacopo Crivellaro Paternalistic protectionist and populist these are but three of the epithets which the new UK Takeover Code has received from a less than enthusiastic corporate community. In fact, the Takeover Code - the set of principles which regulate hostile and friendly merger & acquisition practice in the UK has recently introduced substantial amendments in favor of target companies in the takeover context. The structure of the UK Takeover Panel as a self regulated entity composed of expert practitioners rather than regulators traditionally influenced the non-interventionist stance of the English Takeover law shifting the balance towards bidders autonomy and a free market of corporate acquisitions. The amendments implemented on September 19, 2011, partially in response to criticisms of the Kraft-Cadbury takeover bid of 2010, have effaced much of that freedom and endorsed a governmental policy of greater shareholder protection. The twin goals of target protection and transparency in the financial markets are pursued by additional disclosures and firmer commitments from the bidding entity. The amendments provide for (1) greater disclosure of a potential bidder s identity and the introduction of a 28 day Put-Up-Shut-Up time frame for interested bidders, (2) greater disclosure of the bidders financing and expenses incurred in preparation of the acquisition as well as irrevocable future business objectives for the acquired company if the bid is successful, (3) a prohibition on break fees and other deal protection devices except in the narrow ambit of a white knight scenario or the auction-context. The so-called populist measures include a greater opportunity for employees of the target firm to be promptly informed and comment on the future business plans of their employing entity. Within the next six months the Takeover Code will reconsider the amendments in light of their policy objectives and assess whether pursuit of these goals has been successful. While the economic downturn will have adversely impacted statistical evidence of Takeover

8 THE COLUMBIA JOURNAL OF EUROPEAN LAW ONLINE transactions, certain trends are expected to emerge. Stakebuilding and pre-bid commitments are expected to increase vertiginously especially insofar as a committed bidder will have only 28 days to finalize the transaction from the time the announcement is made public. Requirements of earlier financing and firmer commitments are also likely to discourage potential bidders unless they are confident of the successful outcome: this is a special concern for private equity firms operating in the City. The greater documentary burdens (and in particular the business objectives disclosure) will mandate caution and hesitancy in undertaking substantial readjustments of an acquired firm at least until the 1-year limitation period ends. Ultimately, concerns are raised that the pro-target policy is deficient insofar as it upsets the careful equilibrium of market forces by unnecessarily granting the target boards the driving seat in the market for corporate control.

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