Blockchain Papers

Augustin Gridel

The private international law rules governing the ownership of shares have long rested on the modalities of their transfer, which afforded considerable significance to the form they take (registered or bearer). This article seeks to demonstrate that this approach, which is of doctrinal origin, does not in reality determine the applicable law, having regard to the objective pursued by company law when it mandates the registered form. In reality, the legal order of the registered office retains today, as it has always done, its authority over the proprietary status of registered shares, regardless of the location of any agent appointed to maintain the register. The mode of representation of the share-including inscription within a distributed ledger technologyshould have no influence on this question. This solution may nonetheless be displaced, from the standpoint of international jurisdiction, by the insolvency of the holder.

Sameer Mandhan

The financial sector in the 21st century is experiencing a revolution. The major disruptor is decentralised finance (DeFi) which leverages emerging blockchain technology to eliminate the need for centralised financial institutions and empowers individuals with peer-to-peer digital exchanges. DeFi is underpinned by cryptoassets such as bitcoin, ether, and non-fungible tokens (NFTs). As DeFi offerings have become increasingly sophisticated, important legal issues have arisen. One such issue is whether the law is appropriately positioned to recognise and give effect to the use of cryptoassets as collateral in lending arrangements. The lack of legal certainty at present poses a substantial risk to market participants who are, for the most part, transacting blindly. This article, therefore, addresses the applicability and comparative suitability of New Zealand's Personal Property Securities Act 1999 (PPSA) to cryptoasset collateral, using the recent Singaporean case of Chefpierre as a test case. It argues that the PPSA is generally better positioned than English (Singaporean) secured credit law to respond to the emerging use of cryptoassets as collateral. Nevertheless, the challenges posed by cryptoasset collateral necessitate legislative change; in particular, change to the PPSA's perfection requirements and priority rules. After reviewing and analysing recent legal developments in the United Kingdom and the United States, this article proposes that a number of bespoke rules and concepts designed to respond to cryptoassets be introduced into the PPSA.

Catherine Martin Christopher

No abstract is available for this record.

Head of Administrative Division of the Constitutional Court of the Republic of Latvia, VSIA “Latvijas Vēstnesis” Journal “Jurista Vārds”, Riga, Latvia, Paula Lipe

This article examines the application of the Rome I Regulation to contracts for the cross-border sale of non-fungible tokens (NFTs), a novel category of digital assets. While NFT transfers are increasingly common in digital commerce, the legal framework for determining applicable law in such transactions remains unsettled. The research adopts a doctrinal legal analytical research method grounded in the systematic interpretation of European Union (EU) legislation, case law, academic commentary and comparative soft law instruments. It focuses on how Articles 3 and 4 of Rome I operate in decentralised, pseudonymous environments where conventional connecting factors such as habitual residence and contract typologies are difficult to apply. The findings demonstrate that although Rome I remains formally applicable, its conceptual foundations—especially the reliance on territorial connecting factors and analogue contract classifications—are tested by emerging realities in NFT sales. The article concludes by identifying areas where interpretative guidance or targeted legislative reform may be necessary to ensure legal certainty and coherence in NFTrelated transactions. Keywords: applicable law; NFT sales; Rome I.

Brian Sanya Mondoh, Palesa Roza Gwele

This case analysis examines three sequential English High Court decisions in the litigation between the Crypto Open Patent Alliance (COPA) and Dr Craig Wright. The trilogy comprising the Relief Judgment , the Contempt Judgment, and the General Civil Restraint Order (GCRO) Judgment demonstrates the Court’s methodical progression from injunctive relief to contempt findings and ultimately to a civil restraint order. These judgments illustrate how English civil procedure addresses persistent and meritless litigation, particularly in the areas of digital assets, blockchain technology, and intellectual property. The Court focused on safeguarding judicial resources while protecting the interests of affected parties by balancing the need for access to justice with the necessity of deterring vexatious conduct.

Manon Fafet

Abstract The Droit de Suite (DDS), designed to offer heightened protection for artists, remains absent from Japan’s legislative framework, potentially creating disparities among creators. The implementation of DDS in Japan encounters hurdles due to its administration’s intricate nature and associated costs. Non-Fungible Tokens (NFTs) have emerged as a promising solution, streamlining DDS processes through token transactions and obviating the need for time-intensive identification procedures. Japanese NFT exchange platforms have already begun providing DDS services, contributing to a more efficient and equitable system. This article delves into the legal complexities of integrating NFTs into the DDS structure, examining their enforceability in Japanese courts and evaluating the efficacy of tokenization within the country. While the discussion is primarily theoretical, the paper explores the concept of DDS, scrutinizes the essence and validity of NFT technology’s cornerstone—smart contracts, and explores the nuances of NFT transfers in Japan, a pivotal element for DDS implementation.

Pablo M. Melgarejo Cordón

Este artículo reseña:
 A. Ortega Giménez. Smart contracts and private international law. Thomson-Reuters Aranzadi, Cizur Menor (Navarra). 2022, pp. 80.

Anne-Grace Kleczewski

Off-chain disputes regarding transactions executed on-chain are unavoidable. However, a prerequisite to effectively settling such disputes is the identification of the applicable law as well as of the competent jurisdiction. While some transactions merely operationalise off-chain relations between parties knowing each other, many result from interactions between pseudonymous individuals at unknown locations. The present contribution investigates the concrete consequences of pseudonymity on European Private International Law, especially principles to determine the applicable law. In this respect, it clarifies the numerous factors affecting the extent of pseudonymity, ranging from the type of distributed ledger on which the transaction occurred to the possible centralized intermediaries involved therein. The issue ought to be analysed having these factors in mind, as some effectively wither the veil of pseudonymity. Based on the preceding clarification, the contribution analyses the concrete extent to which pseudonymity renders some principles of European Private International Law ill-fit and as a result, difficult to apply in practice.

Tetsuo Morishita

This chapter examines Japanese Private International Law (PIL) on crypto-assets. After making a general observation on the use of blockchain and PIL, this chapter examines the jurisdiction of Japanese courts in civil cases, the extraterritorial application of Japanese criminal and regulatory laws, and applicable law in contracts, torts, and property.

Mehdi El Harrak

For international issues, Private International Law (PIL) experts traditionally apply the law of the country with the most significant connection. However, it is often claimed that DLT features, which are immersed in a digital world, cannot be localised or have any connection with a traditional legal order. Is it then possible to determine the law applicable to smart contracts? Before answering this question, this chapter characterises smart contracts in PIL. There are various types of smart contracts: they could be used either to perform a transaction between two parties or to serve as the backbone of a Decentralized Autonomous Organization (DAO). It is then a prerequisite to analyse the different types of smart contracts before characterising them. This chapter seeks the most relevant connecting factors to determine the law applicable to smart contracts.

David Sindres

Bitcoin was launched in 2008 and appears as the first application of the blockchain technology. It remains, to date, the best known and the most used cryptocurrency. Like other cryptocurrencies, Bitcoin aims to become an alternative to State and multistate currencies, such as the Euro. The importance it has gained in practice over the past few years has grasped the attention of legal scholars, who tend to perceive Bitcoin as a challenge to traditional legal rules and therefore reflect upon the ways the latter can be applied to this technological new deal. Although these reflections concern, first and foremost, rules of substantive law, such as contract law, they also extend to Private International Law (PIL). From the latter perspective, Bitcoin raises two types of issues. The first one relates to the ability of PIL to tackle legal relationships involving the use of bitcoins, while the second one concerns the ways in which PIL rules can be implemented to these relationships. This article seeks to demonstrate that all the objections raised against the applicability of PIL to Bitcoin, whether they are based on the existence of an alleged non-State, self-regulated, legal order of the lex cryptographica, on the impossibility to situate legal relationships implying the use of bitcoins in the physical space, or on the pseudonymity of participants in the blockchain, can be overcome without having to introduce sweeping changes to PIL rules. Indeed, the latter rules can rather easily adapt to Bitcoin and grasp its hybrid nature of asset and of currency.

F.C. Villata

Technological features of cryptocurrencies have been raising a number of challenges for lawyers, in particular those practicing Private International Law (PIL), in that (i), cryptocurrencies are intangible, (ii) they exhibit a wide range of different features that, to add further complexity, evolve in parallel with technological developments, (iii) the identity of cryptocurrency users – i.e., everyone who is involved in the process of creation and transfer of cryptocurrencies – is, at minimum, not easy to trace, since it is protected through pseudonyms or, even, full anonymity, (iv) cryptocurrencies are set for more than one usage, i.e., both as a payment instrument and a form of investment (albeit a very risky one!). Even more relevant, (v) cryptocurrencies have an intrinsically cross-border reach, since they are based on decentralised distributed ledgers, potentially spanned all over the world, with no connections to any particular state, allowing value to be transferred between users across borders at a very high speed, not conditional on the location of the transferor and the transferee. Finally, (vi) it is extremely difficult to impose legal restrictions on their circulation, including territorial restrictions, not only because of the decentralised nature of said ledgers, but also because of their inherent autonomy vis-à-vis the law. The aforementioned characteristics of cryptocurrencies and, in particular, their intrinsic cross-border reach prompt the question of their PIL regime and, namely, (i) the need to identify, among the existing PIL rules, those which are applicable to transactions involving cryptocurrencies, both as payment instruments and as (possible) store of value, and to investigate whether those rules are suitable for framing them, either in terms of legal characterisation (“pure” cryptocurrencies neither represent nor give a claim against an issuer) or of connecting factors and other techniques to establish the applicable law. Following the partly negative answer to the first question, the chapter explores the many legislative options for differentiated PIL rules on cryptocurrencies, in comparison not only to traditional assets, but also to other crypto assets. Finally, the paper calls for a comprehensive conflict-of-laws regime for proprietary effects of transactions over cryptocurrencies, based on the elective situs and some requirements in terms of objective connection of the selected law, coupled with a fall-back rule, which should provide different sub-rules for permissioned and permissionless systems

V.I. Lehenko

The article is devoted to the study of the current legal regulation of virtual assets in the Hong Kong Special Administrative Region of the People’s Republic of China. The author analyses the advantages and disadvantages of the relevant legal framework, as well as the possibility and feasibility of implementing the most successful solutions into Ukrainian legislation.
 Due to the lack of in-depth studies that would combine the main regulatory norms and definitions and provide a general overview of this regulatory system, it became necessary to study in detail the current legal system of the Hong Kong Special Administrative Region of the People’s Republic of China, which is characterised by high autonomy from the rest of the PRC, and to identify the institutions that perform the functions of a regulator of virtual assets.
 Next, the author provide a legislative definition of virtual assets and their classification. Unlike other jurisdictions, the Hong Kong Special Administrative Region of the PRC focuses on the key features inherent in this particular object of civil rights, and excludes from the definition other objects that have similar features but are already regulated separately.
 The common law system makes it possible to regulate certain aspects of the circulation of virtual assets through precedents, which helps to quickly adapt to changes in this market, where new concepts and civil law relations emerge every few years. For example, it was through precedent that it was determined that cryptocurrencies are property and can therefore be the subject of a trust.
 Currently, not all objects created on the basis of blockchain technology are subject to regulation, such as non-fungible tokens or central bank digital currencies, as the possibility of their circulation is still being investigated by the Hong Kong Monetary Authority.
 The article also examines the new nuances of licensing service providers related to the circulation of virtual assets, which require dual licensing under two regimes regulated by separate legal acts.
 The author concludes that Hong Kong has managed to regulate the circulation of virtual assets in one way or another, but has not managed to create a clear system for all market participants, so it is possible to introduce some solutions into Ukrainian legislation, but in general, this legal regulation system has many disadvantages and sometimes creates legal uncertainty.

Katalin Cseres

Merger regulation is a fundamental instrument by which competition authorities control the structure of an industry. Despite its relevance, the EU Treaties contain no rules on merger control. From the Commission’s first initiative to regulate concentrations at the EU level in 1966, it has taken more than 20 years of negotiations between the Member States and the European Commission to reach an agreement on EU legislation to control concentrations. The history of the European Merger Regulation reflects differing national views of the Member States and EU institutions on the necessity or the rejection of controlling concentrations and positions its legislative process and the various contradicting national interests of Member States against the apps and flows of EU integration throughout the 1960s, 70s, and 80s. At the core of this ‘protracted trench warfare’2 lied the delegation of enforcement powers to an already-powerful Commission, which the Member States initially opposed to. Capturing or delegating jurisdiction, hence, the distribution of administrative and enforcement authority between the national and EU authorities remained one of the most contentious issues during the bitterly fought negotiations. A similarly fierce and heated discussion on the distribution of administrative and enforcement powers across national authorities and the EU Commission has surfaced since the adoption of the European Commission Guidance on the referral mechanism under Article 22 in 20213 and the General Court’s judgment in Illumina/GRAIL4 and the Commission’s prohibition decision in 2022. Article 22 is a corrective mechanism of the Merger Regulation, which allows for one or more Member States to request the Commission to examine, for those Member States, any concentration that does not have an EU dimension but affects trade between Member States and threatens to significantly affect competition within the territory of the Member State or States making the request. This article assesses the distribution of enforcement powers across national authorities and the European Commission, in light of the Commission’s Guidance on the referral mechanisms under Article 22 in 2021 and the General Court’s judgment in Illumina/GRAIL1 and the Commission’s prohibition decision in 2022. The Article shows how the issue of delegation of enforcement powers between the Member States and the EU institutions has always been at the heart of the negotiation processes of the Merger Regulation, and though implemented through compromises, such as Article 22, this question may not have been entirely resolved. The article critically analyses two specific consequences of the way the Commission re-prioritised cases eligible for Article 22 referrals: the consequences of the Commission’s new policy for third parties and the principles of effective competition law enforcement including the principle of loyal cooperation and mutual trust. Born out of a political compromise, Article 22 of the European Merger Regulation has been characterised as a ‘late bi-product of the negotiations to create a merger control regime’ at the EU level and as ‘a mechanism riddled with gaps and uncertainties’. 5 After more than 20 years of low enforcement and largely decreased relevance of what has been initially nicknamed the ‘Dutch-clause’, these gaps and uncertainties are at the centre of extensive and heated debates about the way the Commission has announced to revigorate this enforcement mechanism. In this article, I first show how the issue of delegation of enforcement powers between the Member States and the EU institutions have always been at the heart of the (difficult) negotiation processes of the Merger Regulation, and though implemented through compromises, such as Article 22, this question may not have been entirely resolved. Second, I analyse the underlying rationale and development of the enforcement mechanism of Article 22 from the adoption of the first Merger Regulation in 1989 until the recently adopted Guidance of the Commission and the Court’s judgment in Illumina/GRAIL to provide a deeper interpretation of the referral mechanism laid down in Article 22 and to show the policy shift from discouraging to encouraging referrals. Third, I discuss two specific aspects of the new policy as enshrined in the 2021 Guidance and the mechanism currently underlying referrals under Article 22 EUMR that have so far been overlooked: the consequences of the radical re-prioritisation of referrals and the Commission’s policy under Article 22 for third parties and for the effective functioning of the (close) cooperation between the Commission and the NCAs. I argue that on the one hand, the Commission’s re-prioritisation of cases eligible for Article 22 referrals has re-written and largely eliminated procedural rights for third parties as established in the EU Merger Regulation. On the other hand, by re-activating the referral mechanism of Article 22, the Commission needs to reconsider the mechanism currently enshrined under Article 22. These procedures and mechanisms follow the enforcement logic and jurisdictional principles laid down in Regulation 1/2003, and accordingly, the same principles of effective enforcement including the General Court’s recent Sped-Pro6 ruling should to these the principle of loyal cooperation and mutual trust. The of merger control in the EU not a has been one with the between Member States and EU institutions at of the integration The regulation of has first been by the of in for the and the implemented by the of remained on merger control. In the years the the Member States national merger control In the in those years that and Member States or of of as a for national to the of and the of merger control rules in the Treaties the of the of as a law that out the and but not down a agreement to the European Commission to a merger and an authority within the jurisdictional of the EU The first of this its on the of in the the Commission its that merger should of the Commission’s as an of This the first of what the Commission as the between its competition authority and merger control. The Commission that it to the powers to it by Regulation at that extensive enforcement powers to for of the Commission by it as a In the European Commission, out other of its and the it on the in the the a policy and the Commission not to for the controlling and to authority of to the it to the from a that authority on and one through as authority to to and to the of for the of the European as a of throughout the and the about the of Member States no to in any during the The in the history of merger control the Commission’s decision in it and an interpretation of Article Article In its on the Commission that Article it to in cases of concentrations which from a of and which The Commission, by its authority and hence, a merger control on Article In to these the Commission the of legislative The first for a Regulation by the Commission in in which it to its authority to through legislative The of merger control the reach of its control against which a merger to with the on principles on on and the of which the Commission The fierce in the on various from Member The two most issues the of the regulation and the distribution of administrative and enforcement authority between the national and and the opposed the and of its that the of merger rules the to national or opposed of a to to the in of the as it the that its merger but it to authority to the such as the no legislation to low as no national at of the negotiations the between the European and enforcement powers to those by Regulation for the enforcement of and and authority to the Commission opposed by Member States, such as and that the Commission that a the legislation After this first it years to reach agreement on the merger control and in the largely and the and across these remained the issues of and administrative authority to on The Commission’s for a merger regulation in the and to the new and political of the that The to the in the the Commission’s merger control a merger control to the of a a in Commission The to create the European of the Merger Regulation not in the on the two to in of the EU and as the and and the most of the that by the than the referrals that in its The of at the in to the of the by the of a it for the to with the merger for the to the regulation of more it the relevance of competition policy to the that the rationale the of this new European the to more competition within the this of competition at the same The for a European competition policy as as the that the European Commission for and The Merger Regulation on 1989 and as Regulation The Regulation has been in and the new Regulation as Regulation From its in the Regulation laid down rules for for controlling between Member States and the EU Commission by to In cases these are the merger has a and within the of the Commission and Member States not national competition the Commission has no under the Merger Regulation the concentration does not have a This principle a of a a as in Article of the Regulation, and this merger has a the Regulation The which remained throughout the the to provide and between the and that of the Member This of to between the EU and national to Article of the Regulation, the of powers is on the principle of this of is to corrective mechanisms and the in Article of the Regulation and referrals and the Member States under and 22. In the the article on Article 22, the Article of Regulation out for referral of a concentration from a Member State to the the referral request by one or more Member the that is the of that request the of concentration out in Article of that regulation the for a European dimension laid down in Article of that the concentration affect trade between Member the concentration to significantly affect competition within the territory of the Member State or States that the referral request. to the third a concentration this to the that it is to have on the of trade between Member to the a Member State or States in to on a is a that the may have a on competition and that it may in the of of such a but to the of a In the of Regulation the Commission to of the the Member In for to than it the Commission a Member State to a merger on a within a Member This with one for those that the remained The Article 22 Member States to the Commission to that the This in cases national competition merger such as the in this of or than those at the European level or national authorities from Article 22 a ‘late of the to the of an EU level merger control Article 22 out of a compromise, which such as the to the mechanism in to as an and hence, no to the way Article 22 in the adoption of the Regulation, most Member States have adopted national merger control and the for Article 22 has been enforcement under Article In of Article 22 has been a cases as of it has been that its to to and the Commission to that the of merger control as a and the the Commission, by making of its in and Article 22, a of discouraging referrals from to the In its the Commission has out that the for of Article 22 in its to the that most Member States adopted legislation on merger control the Commission the of Article but has to to for the that with the adoption of the new Merger Regulation in the of Article 22 the of on trade between Member States as a for one or more Member States to to request the Commission to a concentration that does not have an EU dimension and threatens to significantly affect competition within the territory of the Member making the Second, Article the the Commission the to one or Member States that a concentration the out in Article and the Commission may those Member to a referral through a In the the Commission in with and third parties the of powers between the Commission and national competition the Commission that the the and jurisdictional of merger control in the the of cases between the Commission and the Member and in most been effective in cases that have a relevance from those with a national in about the to the in light of the Commission’s of that of but to the the Commission similarly that no for In the Commission to on its of on of for in the and that have but to the or in the and hence, In the Commission adopted a Guidance which its policy discouraging Article 22 referrals. on to discuss the Guidance more a on the and referral request that the Commission in After an the Commission the between and the Commission Member States by an in with Article of the Regulation for A referral request by by the and to the of by under the EU Merger Regulation. The not the of the EU Merger Regulation, and not in any Member but the for referral under Article 22 of the EU Merger Regulation. The Commission that the affect trade within the and to significantly affect competition within the territory of the Member States that the referral request and that a referral is not in its the Commission decision the referral in by that the Commission not a referral request from an in a merger law but the does not the for that the Commission’s interpretation to the principle and the principles of and On the General these and an extensive of the and of Article 22 In its the the Guidance as a which the adoption of the Merger Regulation and hence, not to the interpretation of that regulation to the of the the that Article 22 of Regulation at making the referral more and effective in to that a concentration with by the authority to analyse its to effective of the principles of and the as as to the The General that from the the legislative and the of Article 22 of the Merger Regulation, as as from the Commission’s enforcement it that Article 22 is to referral may for a concentration that does not within the of the merger control rules of the Member State that its In the Court’s interpretation of Article 22, the Commission may a concentration that threatens significantly to affect competition within the territory of a Member State and affects trade between Member States, which not to any by the national authorities or by the Commission and hence, an that by the Member In that it is to at the EU in of Regulation Article 22 an effective corrective mechanism in the light of the principle of by the interests of the Member In light of that principle and in with of that Regulation, a with by the most by the principle of of should to competition authority in the is the more for with a to the specific of the as as the and to the should to the of any on competition from the the referral of cases of aspects of the of the principle of including the in a and the of with to to to or to a the Commission and Member States should in the to effective of competition in by the The General that in which concentrations are not but to the Member State not within the of that or no such within Article 22 Article of Regulation a Member of the of its national merger control to to the Commission concentrations that not the in Article of that Regulation, but that may have the General that referral mechanisms are an instrument to control in a on of its is not of concentrations that at the European mechanisms as by the in of Regulation a of the Commission that on it the to the of that which is to the control of concentrations significantly to effective competition in the The 2021 Guidance is an of the Commission’s administrative it policy to the General in Commission a in control competition in with to referrals under merger the that the Commission has as to or not to a to of the on the Commission and Member States a of in to cases within or to to with cases not within to Article 22. The Guidance these and procedural on the of Article 22. The Commission’s to the of Article 22 EUMR has been that the Commission is its a for Member States merger control legislation in to the of the in merger control more than years and that the Guidance is ‘a law that the Regulation or at the of the In the I discuss two specific aspects of the Guidance and the mechanism currently underlying referrals under Article 22 that have so far been I argue with the adoption of the the Commission has not significantly re-prioritised cases eligible for Article 22 referrals and its established policy on discouraging but it has re-written the procedural rights for third parties as established in the Merger Regulation. administrative authorities to with principles of EU law and principles of that of powers by administrative Second, by re-activating the referral mechanism of Article 22, the Commission should reconsider the enforcement currently enshrined under Article 22 This on the of and between the Commission and the to Article of the Merger Regulation. and between the Commission and the and between the are in the referral out in the Merger Regulation. and on the of to the Merger Regulation, a of in these procedures and mechanisms the of cooperation under Regulation and follow the enforcement logic and jurisdictional principles laid down in that Regulation. the of the of on trade between Member States and a cooperation between and the Commission under Article 22 is a of such the same principles of effective enforcement as established by the European and recently by the General in its ruling should to this such as the principle of loyal cooperation and mutual trust. In with the structure of these the EU have characterised the procedural rights of third a to to the This as a to in the administrative from the to as a of the of the The Commission’s enforcement is but not to the administrative procedures to and as laid down under Regulation In merger parties to to the Commission for and may the Commission’s and and the Commission may the procedural and of third parties in these procedures as in Regulation third parties have a in the to the Commission’s by of to for to Article of the Merger Regulation, and provide and for the of a may third parties for to discuss and specific issues to Article Regulation third parties a to to Article of the Commission’s Regulation third parties are or including and are to a such as the concentration or by and of the administrative or of the or the of Article that third parties may within a that has been by the to the by the third parties in the Commission may the to in a At the same as the has that procedural of third parties with that of the and of to in the first Article the by the concentration in the parties to the concentration for by the Commission, the specific laid down in those in to that rights of are in the of the administrative Article in to third since are to the of the the to by the Commission, that have so and have that have a for that the Commission in the of the in provide third parties that have a with a of the of in to to views on the Commission’s of the the Commission in the such third parties are to the of a a to to this does not the that have been to third parties are to for the of the to Regulation procedural rights of third parties are not as extensive as the rights to the in to rights of it is the in so far as show a third parties have a under Article of Regulation to have so these procedural rights are in with the procedures laid down under and provide procedural and rights to third the 2021 largely these procedural rights to and to to the of the and down to the to the Commission or the authorities of the Member States, and of a concentration in a for a referral under Article this does not any on the authorities of the Member States or on the Commission to any a by a third any by third parties in the referral is in of the and such a fundamental of and parties are not competition authorities in the functioning of The of third parties is on this of as provide that to an of the that the to issue a decision in with the of the the by the concentration in the parties to the concentration for by the Commission, in the of third parties not to have an in its the affect not always in a are to the of the which in a procedural with to as third parties under Article of the Regulation, the General in that that those may in does not the of its to The Commission Article of Regulation in which the of that in to cases in which a merger has on a the of the of Article of Regulation as of the Commission the interests of the and The that Article which has the same as Article taken in and other EU and Article of the of of the European that EU a level of in administrative procedures is an of and that the of the and the as a to third parties are the to the decision of the competition or that to the of the These procedural have been by the Guidance in the referral making for third parties to a to the Commission in an is to so as one of the of Article 22 is that the concentration affect trade between Member This is an jurisdictional in the enforcement of the Merger Regulation, as other mechanisms on the in Article in of the a concentration the of on trade between Member States laid down in Article 22 it is to have on the of trade between Member this is in the to the Commission’s on the on trade in and the referral mechanism on and between the Commission and the and cooperation and to the European for and under Regulation 1/2003, the and the Commission a of in under the Merger Regulation. At the same the referral mechanism of Article 22 on the of to The Commission Member States to to the Commission as the most authority to the but it to is the of the Member States to a to the This the Guidance cooperation between and the Commission, it a of to the to a to a to the Commission, third parties more than the Commission as a with the jurisdictional and enforcement cooperation of Regulation the question the same principles of effective enforcement as the underlying Regulation should to Article 22 referrals. those and in light of the enforcement of and and the principle of procedural and the to a of fundamental under EU Member States powers to the of and The principle of which is a of Regulation and Member States not to the of EU law in or that the rules which or not the effective of and The principle of a to in EU law competition and other authorities as in the competition to to that is by is an of political competition is Member States should from legislative or other that the of its The have on various the Member States have on the of the principle of which the of national enforcement so that Member States to the of EU law within the Second, of cooperation with the Commission and other which is on and and on the that Member States that enforcement but the of as a for The on the of mutual and in which other in making of and powers in to This has been by the General in competition law in its judgment the of law issues to taken a national competition authority is of competition law and third In its a principles of between the Commission and the the General that with the fundamental of Article to the competition law enforcement mechanisms under and In this the General for the first established a between in the of a Member State and the of its competition authority to and enforcement under EU law and a The General issues of of law as an of effective competition law enforcement and the principles between the Commission and under the enforcement of Regulation to its law in the of the European the General as in the of and the cooperation between the Commission, the competition authorities of the Member States, and the national for the of and is on the principles of mutual mutual and loyal of those of those authorities and that other authorities and law for more the fundamental rights by that to the General for the of which competition authority is the to a the Commission to with the of the of law as a to the the of the rights and the Commission’s are this judgment the Commission to its decision to at of to by national authorities by of law The judgment that the Commission of the of of law on and in this the a new that the Commission, a for of EU to that the national authorities are of the rights of the The judgment is it a of and between the and the Commission and cooperation on mutual mutual and with these principles underlying enforcement and cooperation under Regulation and the General Court’s judgment in and on the of the between the principles underlying Article 22 referrals and I argue that the Commission should of the of effective competition law enforcement and of law referrals are an to the Guidance in a way that referrals not on the and of to The of of with the of of authorities the the of cooperation between Member States and the Commission and that the should with by the This is more so the that the European Commission and have as the of as as rights to and in effective enforcement of competition law not is for competition within the but of effective as laid down in Article of the of to and in the competition This the a Member State from its merger control effective competition in the Member State and in the This is the same as in the years of the Merger Regulation, Member States no merger that the adoption of the This is the the and such the and of merger to control in a way that it does not in to competition in the and to effective of concentrations with a of on the structure of competition in the and to effective competition in the or in a of In in that of a merger control to gaps in the of against of competition in to that ‘a in has in recent years in the and under competition of of for in the of or this the Commission has its enforcement mechanism enshrined in Article 22 of the Merger Regulation. the Commission as an administrative to the of to with powers in to and and EU policy including competition are to and effective regulation and procedures with a of on the of the administrative as the and the European Commission in is policy these not but and administrative and and on of procedural and This article that third in administrative procedures is a of and that the of competition the procedural and procedural rights of third parties in the referral the powers of the Commission and of the This the Commission’s referral with the of in the of a of and procedural rules that the of third parties to the referral to those to in the rights of the of that that may have on should by administrative law as a to control the of the adoption of the 2021 Guidance of encouraging referrals from Member States under Article 22, which of merger control the Commission has not to for procedural but and views of Member States and the EU institutions on which in national national or at the of national and the of effective the and development of Article 22 and its this article that the of Article 22 referrals the cooperation mechanisms and its procedural as it has under the enforcement of Regulation 1/2003, cooperation is a fundamental of effective competition law the Commission should not the in and the new it to administrative but on the in Member States that the effective of competition in the The General Court’s recent judgment in is in the of effective referrals and and effective enforcement of competition between Member States and the The jurisdictional in merger control between the Commission and the Member States effective and Member States to the and and the and its such as an competition in the

F.B. Bouwmeister, K. van Hemert

Opvolging van tokenhouders in Decentralized Autonomous Organizations: een vennootschapsrechtelijke duiding Auteurs schrijven in het kader van het honoursprogramma Law Extra van de Radboud Universiteit over de opvolging van tokenhouders in Decentralized Autonomous Organizations (DAO’s). Er wordt duiding gegeven aan de plaats van DAO’s in het Nederlands vennootschapsrecht, waarbij bijzondere aandacht uitgaat naar de opvolging in personenvennootschappen.

Amy Held, Alisdair MacPherson, Burcu Yüksel Ripley

No abstract is available for this record.

Jasper Verstappen

Blockchains and smart contracts are novel concepts that provide unique challenges to legal systems. This research outlines the extent to which these new and innovative technologies create potentially unhinging effects for the laws of contract in Europe. It does so by taking three steps. First of all, in light of the transboundary nature of the technology, this research looks at French law, German law, English law, and Dutch law to analyse the impact on the different systems of contract law. Whilste doing so it looks at formation of contracts, interpretation of contracts, and vitiation of contracts. Secondly, it analyses the impact of the technology on the European rules on unfair terms in consumer contracts. This research argues that the existing rules on unfair terms in consumer contracts should be applied to smart legal agreements in business-to-consumer relations. Lastly it analyses the existing European private international rules on the basis of which jurisdiction and applicable law is determined. In this respect the research concludes that the vast majority of these European rules are ‘smart contract’-proof.

Florence Guillaume

This paper examines civil and commercial disputes involving Decentralized Autonomous Organizations (DAOs) and the complex questions of private international law that arise. The legal capacity of a DAO to be a plaintiff or defendant in court varies across jurisdictions, highlighting the need to determine the applicable law to a DAO. A distinction must be made between different types of DAOs. There are currently a few jurisdictions, notably in the United States, that have enacted DAO legislation defining a legal status for such entities. Those regulated DAOs are governed by both computer code and company law. In other jurisdictions, existing company structures can be used to offer a legal wrapper to DAOs. However, the vast majority of DAOs currently in existence are constituted and solely governed by code, posing challenges in bringing them before a state court. The paper explores recent case law and the difficulties in identifying the appropriate party to sue when pursuing a DAO. Using Swiss law as a basis, it examines the qualification of DAOs under private international law and the challenges of anchoring a global digital entity to a specific jurisdiction. The article illustrates these challenges through three types of disputes: governance, contractual, and tort-related. Determining jurisdiction over a DAO-related dispute requires applying private international law rules. Although the paper assumes Swiss courts for convenience, the reasoning can be applied to different legal systems due to the similarities in conflict of jurisdiction rules. However, challenges persist even if a court has jurisdiction and renders a decision, as enforcement may prove difficult, especially on-chain. Additionally, initiating legal proceedings against a DAO presents issues with serving court documents. DAOs offer opportunities for innovative electronic methods of document service, but specific requirements and restrictions exist for international service of documents. Practical difficulties may arise, making it impractical or unattainable to serve court documents on the defendant. The analysis concludes that state courts currently struggle to ensure reliable access to justice in disputes involving DAOs. As an alternative to state courts, opting for Alternative Dispute Resolution (ADR) mechanisms, such as Blockchain-based Dispute Resolution (BDR), can offer a simpler and more efficient solution depending on circumstances. In any case, entrusting dispute resolution to a BDR mechanism avoids the complexities associated with state court procedures.

L. L. Wynn, Susanna Trnka, Jesse Hession Grayman

Anthropologists like to tell stories about how they were wrong. These stories are part of our collective identity. Consider Briggs's (1970) classic ethnography, Never in Anger. Briggs tells a story about doing fieldwork in Nunavut (then the Canadian Northwest Territories) in the early 1960s. She showed anger on behalf of the Inuit group she was living with when they were wronged by a white outsider. To her surprise, her Inuit interlocutors reacted by ostracizing her for months. She describes feeling devastated, lonely, and depressed, but in slowly working her way back to personhood with her Inuit participants, she learned in a powerfully embodied fashion a core principle of their culture: that adults never show anger or make demands, and that to lose one's temper is to demonstrate a dangerous lack of control, even insanity. She documents how this emotional control is inculcated in children from a very young age. Thus her awful moment of social failure is transformed into a profound reflection on affect and socialization in Nunavut culture. The resulting ethnography became one of that era's most famous. Even when our failures and mistakes are less obvious than Briggs's and don't threaten to derail our research projects, many ethnographic writings reflect on moments when the author realized they had brought a bad assumption into the field with them and, as a result, learned something from their research participants—something that shifted their methodological or theoretical approach, or changed what they were studying. These stories are particularly prevalent among graduate students returning from their first fieldwork experiences. The stories go something like this: I went to the field planning to study x, and when I was in the field, I listened to my interlocutors and realized that what I really needed to study was y. For example, in her book Food, Sex and Pollution, Meigs (1984) writes about going to the field intending to study divorce, but when she gets there, everyone seems bored and uninterested when she asks about the topic. Instead, they want to talk to her about sex, gender, and the pollution rules that govern what they can and can't eat. It's such a collective concern that she describes their interest in the topic as a “religion.” Responding to this, she changes her research topic and commits to addressing her research participants’ interests, letting them chart the direction of her work. Briggs tells a similar story: she goes to the Inuit planning to study shamanism, but when she arrives, she finds that the small group she is living with have converted to Christianity and don't want to discuss their “pagan” past. That, combined with her attempts to process the social ostracism caused by her angry outburst, leads her to a whole new project on emotions and socialization. Without having systematically reviewed all the different ways that anthropologists have described their “I was wrong” moments, the AE editors suspect that many, if not most, ethnographies include stories like this, even if most are not as dramatic as Meigs's or Briggs's. These stories are not just about ourselves as individual fieldworkers but about anthropology as a discipline. We tell them to remind ourselves and to teach our students about the discipline's orientation toward a radically inductive and collaborative approach to building knowledge. By telling stories about being wrong, we might seem to be sacrificing our own dignity and authority, but in fact we are shoring up our authority as authentic ethnographers. These stories illustrate our willingness to be humbled by what we don't know, demonstrating our commitment to what Lederman (2007, p. 310) calls anthropology's “systematic openness to contingency.” In short, anthropology is a discipline that has staked its methodological approach on the possibility of mistake and failure. In taking an iterative approach to co-constructing knowledge with our research participants and collaborators, we insist that when we realize we are wrong, we must acknowledge it to move forward. As we were reflecting on this as editors, we thought of our own “I was wrong” stories. For Lisa, it was less a moment and more of a dawning realization. She had been doing research in Egypt on emerging reproductive health technologies, including sildenafil (the generic name for the drug more commonly known as Viagra). As she visited acquaintances and friends in Cairo and Alexandria, she asked them, “Who uses Viagra, and why?” The first time someone mentioned using sildenafil and tramadol (a painkiller) in the same sentence, as if they were synonyms, she dismissed it as ignorance. The man she was interviewing was an illiterate fisherman. He probably didn't use either drug, she assumed, and didn't have the knowledge to realize that they were radically different, having completely different mechanisms of action. Sildenafil produces erections; tramadol, as an opioid narcotic, would be intrinsically erection-wilting, she assumed—and, indeed, recent Egyptian research has demonstrated this (Hashim et al., 2020). The second time someone described using sildenafil and tramadol for the same purpose, she again ignored it. It was not until the third time that an interviewee described the drugs as equivalent that she started to catch on that something significant was afoot. She realized that she had neglected a fundamental point of critical drug studies since at least the 1970s, namely, that a drug's effect is produced not by the drug alone but by the intersection of three elements: the drug and its neuropharmacology; the mindset of the person taking the drug and their expectations about what it will do; and the social context in which they use the drug (Zinberg, 1984). This led Lisa to ask a question that would prove important to her research: Why did people see these drugs as part of a semantic continuum, and what did that say about how Egyptians understand masculinity and its relationship to pharmaceuticals (Wynn, 2022)? In retrospect, I realized that scars were slowly being formed. More precisely, they were being encouraged to form through a communitywide cultivation of silence. Rather than silence being considered an inhibitor of healing, as it is in much of Western medical, psychological, and cultural discourse, this was a case of a community encouraging silence as a means of promoting healing. After several moments when her research participants gently corrected her social blunders, she realized something not just about them and their philosophies of trauma and healing, but about her own deeply held assumption about trauma: that to heal, you need to talk. In contrast, for her research participants, “to break the silence [about past trauma] would be akin to breaking open the wound” (Trnka, 2008, p. 180). Jesse had a key “I was wrong” realization during his PhD research in Aceh, Indonesia (Grayman et al., 2009), where he was studying postconflict humanitarian recovery programs. Jesse was working with an Indonesian medical team that was tasked with providing psychosocial and psychiatric support to civilian survivors of the separatist war (1976–2005). He gave the team a short training on ethnographic methods, with a focus on managing trauma and the ethics of discussing painful conflict memories. Later, during a field exercise, an overeager nurse interviewed a village head about his conflict experience, pressing on despite the man's visible discomfort. As a crowd gathered, the village head recounted horrific torture, evoking tears from an elderly observer. When the conversation ended, the leader quietly remarked, “Sometimes I think there is no need to remember the past like this.” Jesse wondered whether he had misconceived his effort to upskill the medical team with ethnographic methods. Afterward, Jesse reflected on this as a moment of failure, noting that confessional narratives, central to many mental health models, are not always therapeutic. While some participants thanked the team for listening, it was nearly impossible to discern the few who might not benefit from talk therapy. Though Jesse turned the experience into a teachable moment, he regrets that the researcher's moment of learning unfolded in a real community, with real people and real leaders, just barely coming to terms with peacetime after living through decades of political violence. Even today, remembering the event makes Jesse anxious and embarrassed. This draws our attention to another key aspect of the way anthropologists process being wrong. We often experience our mistakes as embodied, visceral moments of regret, embarrassment, frustration, or humiliation. Thus, perhaps recounting our mistakes is not just about asserting our ethnographic achievements and authority, but about helping ourselves process our dark, painful feelings and difficult memories of fieldwork. Wanting to reflect more deeply on these issues, we invited anthropologists to submit to a special forum in which they discuss their moments of being wrong and what these can tell us about our discipline. We asked them to recount events when they realized a flaw in their methodological approach, an interpretive error, an ethical mistake, an event that triggered a theoretical paradigm shift, or a realization that their approach to teaching or doing anthropology needed an overhaul. We asked them to address these questions: When did you realize you were wrong? How did you come to that realization? What did you learn? How did you change the way you do or teach or write anthropology? As we read the submissions to this special forum, we were struck by three recurring themes. The first was embodiment and affect. As described in Jesse's and Susanna's stories of being wrong, and in Briggs's powerful ethnography, it can feel like swimming in dark emotions to realize that you are wrong and to process what it means for how we understand our past and our future in a society. Coming to terms with our mistakes is both an intellectual and an affective process, one that is experienced and felt deep in the body, both as we live the moments of mistake and process them later. A second theme was scale. Being wrong can be a tiny realization leading to a subtle reorientation in focus or approach, a microrecalibration of knowledge or of everyday fieldwork practice, or a grand, dramatic moment that causes a seismic shift in perspective. Of course, it's rarely one or the other. As Kuhn (1962) notes of paradigm shifts, they might seem like revolutions, dramatically overthrowing old modes of thinking, but in reality they take place gradually: anomalies slowly accumulate until the dominant paradigm topples under their weight. The third theme is temporality: “I was wrong” can be a light bulb moment or a slow, unfolding realization, a moment in the field or a decades-later discovery. Some “mistakes” do not reveal themselves until several years or even decades after one's fieldwork, reshaping one's sense of not only their research or the people they spent time with, but of themselves. In My Life as a Spy, Verdery (2018) reflects on how state security services labeled her a CIA agent during her three years conducting ethnography in Romania in the 1970s and 1980s. Their mistaken interpretation of her as a foreign agent began, she suggests, through her own error in judgment—motorbiking alone through the Romanian countryside in search of a field site, she inadvertently strayed into a restricted military zone, missing the sign warning “Entry prohibited to foreigners” (“I had made a stupid mistake. It would not be the last time,” Verdery [2018, p. 3] dryly remarks). the way I carried myself was suspect. At least, so it seemed to my friend Emilia, who told me that when she met me in 1990 she immediately thought I might be a spy: “You were dressed very modestly, you didn't hold yourself above us. Your style was to reduce the difference between yourself and Romanians, under-communicating it.” In short, my manner of dress was a form of hiding. Eventually she came to see it as my way of trying to form good relations with villagers, but her first thought was, “Maybe she's a spy. Instead of seeming like someone from a totally different world, you seemed to be one of us”—that is, she thought I had been specifically trained to fit in. (p. 17) recognize me as a spy because I do some of the things they do—I use code names and write of “informants,” for instance, and both of us collect “socio-political information” of all kinds rather than just focusing on a specific issue. … When I read in the file that I “exploit people for informative purposes,” can I deny that anthropologists often do just that, as Securitate officers do? In 1962 the US Department of Commerce, without authorization or permission from the author, translated from French into English the anthropologist Georges Condominas’ ethnographic account of Montagnard village life in the central highlands of Vietnam. The Green Berets used the document for assassination campaigns targeting village leaders. For years, neither publisher nor author knew this work had been reprinted in English for military ends. How can one accept, without trembling with rage, that this work, in which I wanted to describe in their human plenitude these men who have so much to teach us about life, should be offered to the technicians of death—of their death! … You will understand my indignation when I tell you that I learned about the “pirating” [of my book] only a few years after having the proof that Srae, whose marriage I described in Nous Avons Mangé la Forêt, had been tortured by a sergeant of the Special Forces in the camp of Phii Ko. Condominas's outrage changed how anthropologists think about their writing, their politics, and their ethics of representation. As Price (2007) notes, ethics committees often focus on any immediate risks to research participants, including whether they could be harmed by certain questions (as in Jesse's recounting of interviews about a violent past). Examples like Condominas's, however, show that anthropologists also need to think about the different scales and temporalities of ethnographic work and its possible harms. These themes—embodiment and affect, scale and temporality—come up in fascinating ways in this forum's commentaries. Rejecting the simple binary of right or wrong, Veena Das dismantles the AE editors’ language of “moments” of realization. Instead, she sees anthropological knowledge as a long, dialectical process: the anthropologist slowly finding their way between, on the one hand, the dominant theories and theorists of their time, and on the other, their interlocutors, the “figures of thought” influencing them in the field. She describes a sense of incompleteness or poor fit with existing theories, one that slowly accumulates and eventually compels the anthropologist to see something in a new way, or notice what they haven't been seeing. “By taking a long-term perspective on the vulnerability of knowledge, which reveals itself over time,” Das aims to “draw attention, instead, to the connections between the knowledge of the alien and our own everyday modes of knowing. We miss these connections if we stay with the stark oppositions of truth and falsity, mistakes and correction.” Like Das, Carole McGranahan sees anthropological theory as formed not only in the relationship between fieldworkers and theorists, but also by the theorists in the field. Reflecting on her own training, she writes, “The ethnography often, though not always, came to me pretheorized. People shared stories with me alongside observations, musings, and explanations. Analysis was by no means only the scholar's domain. It belonged to narrator and audience alike.” Gil Hizi thinks through a series of unexpected moments during his PhD research and describes his mistakes as the “naivete of early graduate studies.” In studying practices of among young Hizi learned that after the is no with a but to the that come from interlocutors, in are studying While he at first that they would take no interest in the of an in his Hizi finds the Hizi from these unexpected moments with mistaken come and he through them to his with his realization of his mistakes from to decades He describes feeling early in his during his first with a he he was wrong until interviews when of the difference between the and the [of became account is through with embodied affect. when one to talk with in the of a field at a to being and even more and when he how to his field notes and back to the US without He up with a that … seems of you are wrong, after the when in the field you knew something was but didn't how to with it. writes about finding on an at a in one of which is about the impossible of a The of this with about medical issues, such as the of back into old anthropological about the to and is certain that the only to that the is from the on an from This to the of her and, like Das, her by asserting the of and the of knowledge. writes a account that a different to the of the anthropologist as about being as an and from and working to open up to the makes a that leads her to being Afterward, she her in terms of a intersection of gender, and also with In an dark and that many of us will she that she is not to for being she can't over what she did wrong. She to how it so that she can make in the one be wrong without being at and In her we the of stories about being wrong that don't stories that people don't feel powerful to or that don't to our authority, that are or or the of trauma among who work in of political and violence. In research with in US knew this work might trauma and health was in not other, more and ways to both for individual such as and for the discipline as a which could do more to PhD students and a new of who are ethnography, for as work. forum are a of names and finding their in the field. Their on both recent mistakes and made over not only tell individual but also describe both subtle and dramatic of what ethnographic fieldwork and ethical research the of writing, and and the of old theoretical even as we to think in new reflect of things we have wrong as as the realization of in as Das it. are stories and perhaps the most that all these is their on and to our research and participants’ for to participants’ to who offered after the own The the anthropological in terms of and the willingness to be Thus, an “I was wrong” realization is the of a commitment to It anthropology as a discipline that is and to

Olivier Moréteau, Luis Muñiz Argûelles

Multiculturalism has been a substantial part of the U.S. experience and a continued source of tension throughout the country’s existence. From a legal point of view, however, the Anglo-American common law is everywhere the driving force, seemingly leaving limited room for the legal systems of the native populations,1 and even less for the forcefully transported African population, though history proves that these populations had at all times legal awareness and agency.2 While it might seem difficult to describe the U.S. legal system as mixed, its day-to-day, decentralized, bottom-up dynamic interacts with, and draws on, a diversity of endogenous and exogenous cultures. If legal and normative phenomena are considered from the perspective of critical3 or radical pluralism,4 there may be more diversity in the United States than one might expect. The present Report, however, focuses on the State of Louisiana and the Commonwealth of Puerto Rico, both of which qualify as mixed jurisdictions according to mainstream definitions.5 Louisiana is a state in the continental United States. It constitutes the southern portion of a large territory purchased from France in 1803, which, after a short territorial period, became in 1812 the eighteenth state of the Union. The State of Louisiana shares much of its history and culture with other southern states, and its 4.5 million people speak the English language. A Spanish colony for over 400 years, Puerto Rico is a Caribbean island acquired by the United States in 1898. It has a Spanish speaking population of 3.2 million people. Today, the Estado Libre Asociado de Puerto Rico (Associated Free State of Puerto Rico, or the Commonwealth of Puerto Rico) is in a decades long debate as to whether it should become a state of the United States, remain an autonomous territory or become an independent nation. What Louisiana and Puerto Rico have in common is that both have their private law anchored in the civil law tradition, each having a civil code. Louisiana codified its civil law after the Purchase of 1803 (Digest of 1808, Civil Code of 1825, and revised Civil Code of 1870) and engaged in a piecemeal civil-code revision starting in the 1970s. Puerto Rico received the Spanish Civil Code of 1889, which it revised in 1902 and again in 1930, replacing it with a new code in 2020. Regarding their multicultural populations and mixed legal systems, these two jurisdictions have many singularities that justifies that they be discussed in different sections. Louisiana is better known for its Creole culture than for its law.6 As the cradle of jazz, blues, and zydeco music, it is a land of linguistic and cultural diversity resisting the steamroller of a North American model that tends towards uniformity. In this respect, gumbo is an emblematic metaphor of multiculturalism and legal pluralism in Louisiana. It is a beloved local dish that combines a mixture of African, North American, Caribbean, Spanish, and French flavors, where ingredients contribute a unique flavor, while most of them keep their physical identity. A roux is prepared by heating canola oil and flour over medium heat and mixing it well until it reaches a chocolate color. Onions, peppers, and celery are added during the heating process, without burning the roux. Slices of sausage, called “andouille” in Louisiana, find their way into the pot. Chicken broth is then slowly poured in, while the pot is brought to a boil. The mix is seasoned with salt, garlic, and cayenne pepper. Pieces of chicken previously sautéed in olive oil are added, alongside okra, a plant found in West Africa, where it is known as (ki)ngombo in the Bantu language, hence the name “gumbo.”7 The mixture must simmer for a good hour. Duck is a common ingredient, though gumbo can also be cooked with seafood, especially shrimp, abundant in Louisiana, without removing the head. There is no need for a mixer or a blender. Gumbo is served over white rice. The solid ingredients remain perceptible to both the eye and the palate, while the mixture has a unique flavor that varies according to the ingredients, with chunks swimming in the dark soup, which remains quite liquid. Gumbo thus comes from West Africa, which, against its will, provided Louisiana with a large portion of its population, who were beaten with a whip that is not used in the kitchen and brutally enslaved by unscrupulous masters eager to enrich themselves from the production of sugar and cotton. Whether cooked by descendants of settlers from Canada, France, or Spain, of African slaves or Acadian deportees, of sauvages créoles,8 or Yankees, or by boat people from Vietnam, the recipe is a symbol of diversity and It the for in and the of until the Louisiana law is to gumbo in the that it combines chunks of the civil law codified in a civil with a and law which are of common law the of this of the to the ingredients of the legal gumbo a of that the civil law a flavor in a common law the culture the civil law of code while the code remains a It be and to that the process, of common law a blender. It the civil law and its a unique Louisiana, state law is of to and legal different legal civil law from and which the and on the one and the common law from which the by the in a on the each other and then to a mixed, or at the of the of and or whether the of for in Acadian The the of French law by the of name to of the a in the of the colony to and the of as It is that the Civil Code of Louisiana, in after the of the colony by the United States, more or less a of the the of French law more than French in North on the were the where the French culture one has the civil while the of the French the has the the civil and one has to keep both the civil law and the French language. The one is the of the territory of Louisiana purchased by the United States from France in 1803, which became the State of Louisiana in Civil Code and have been in English the Civil comes and then to in and French settlers were by the English in The who to became the of for French is the common law has been it can be both in English and in and is in the French at the de Canada, which became the of by in to remain and has had a Civil Code Code of in Code of tends to the Louisiana Civil Code as a of the of France the it may be as an of a gumbo while its with the that the French from of by de by the to of the of Louisiana to by the of The territory from the of to the by the to the and the to the It should be however, that the in the on in the State of by in The French until the of in in and in and in As a to the and in the system Civil and by a as a of the of of the of The Spanish with the of of the not become until the of in in The and by the and the of by the de the of also the of Louisiana to be by the as the other Spanish The Spanish were more and than the of and the French the the that the legal less than the were during the Spanish period, which a good of Spanish by the population as the colony French the of on Louisiana to France, its The had to remain of that of the Louisiana, which the of the Spanish until the of the of Louisiana by France to the United States in who on 1803, to a system the one that in the other French to or to French on 1803, to the population of the to the United States to to a on 1803, of Louisiana in the name of the United States, received from France a territory Spanish the of Louisiana, the United States the of the and need not be were the of and the hence the of a of with a a and a by the with the to a The of Louisiana the territory of the United a of Louisiana, which to be and and into that become In 1803, the population of the at of which in the of them people of In there were and slaves in Louisiana. The population in of which were in The of the for the territory to for to the as a thus The of and new from and brought and the of the law became the of culture and The Creole in for the of the civil law and the of which in its While the from French to Spanish law in both systems their from and an to Anglo-American common law not be without In to the at it is to point that the the two are not the of the The civil law is a of law in the from the of the of the of the of the which the civil of the and is as a of in in the is to be by the of on the other is a of not on a in the that the The is on the of than on the It is difficult to the their is to the of the of the civil law is in the common law is to a that be without to the of the In the civil law tradition, the is more not the in the of the the who has to the its by the and in with the common law A in the civil law in to in a common law for that a radical in Louisiana not have been or by the legal this is in Louisiana, as an system in after the by the also the of the While both systems the on the civil law the of a by the of the this at common a a The civil law the of of from law with law in after the which the to become the by of the on the of the The common on the other the the of the and the from of the on which It is that in the United States, and the system of of which to a the of the common law other While Louisiana, France and Spain, from law a of the common law on the with from American law in a that on the of In Louisiana the common law the of the civil law that are by the common and a that is limited by a can the of or two after their the by the against In the of common law had the of to the way were and which the of the people that the in at the of the Louisiana Purchase should be to or by the territorial In however, this a The of Louisiana into the United States not without The of the linguistic and legal the other were and of common a that and from the a in of the common law the by to on a to the common a which in a to as the most a of the the of civil law in the The A by the of the the in the two an of the to the of a legal of the civil law is by all and this law is the one which of the population of Louisiana and are to from of which they not themselves without into The to the of the common had no to in to an for legal diversity in a where each state its of to with the U.S. The not a it that it become one in the The of a civil code for the new territory to two both in of an from of French and had received legal in from had to after the their in less than two has it that they the French Civil which had been on the of the of the are that the Code in in Louisiana even while it in at the of the The is that not Louisiana after the also that the Louisiana is not a of the The is not the of to from the Code The Louisiana Code is and and to French law of Spanish as the which a to one of the in Whether the Louisiana Civil Code is French or Spanish remains a in legal It is that the Code its and from many from the French as has it is also that French law and Spanish law were in of the common of and that the Louisiana code on Spanish from the French Code the two were and Spanish that were the Louisiana Civil Code as Spanish in French has the with that on the French to the Spanish which proves that the of the that they in and law the who became an the of the until the of the the French Civil from the as as the of a which by the Louisiana as more to the local of the Louisiana are the of the Louisiana which many more than its French Louisiana at the not and the civil law had to be to and in the common who were of the of the civil law that one of the of were from French legal during the as a part of the population an English hence the The Code into English and in both and its both linguistic on an to the the Louisiana the of the French as the source in the of a the English and the French which to the law by the law that in the of France and the law that in the the of the not to the law of Louisiana to the of the civil law and the of the the of a the law in all by the as the French of the Civil Code had The of the Louisiana Code the law where the new not with the this it at the of to the name than the though the by the French Civil as a radical of and a of civil in to this its to become an of of the without with the The of the of a than a code were the new a to the Spanish for a more and the had to whether or not this by the In the of the had the law as they in the where it that an a not in the a that had not in of the of the of the of law the of to in France, in the of in the civil one to it by for the in Louisiana, and the their and their with the which a source of debate in the less than it had been to The found no better than to in became known as the Civil Code of Louisiana, that of The law for a in the were to that two had to be which were with The Code revised after the Civil in to to and other It in English who were and not to the of the The that one is with a than a code remains an of The Civil Code is a of the legal with other from the common law and other is by from the common The mix or both the Code and the While to the of the common in the to a system to that of the other The a common law also by France during the it into a system with is used in both civil and A by in the and the Spanish Civil codified in of an of civil and common law The in 1812 from the common law flavor, and the civil law by the of the common law system by In Louisiana, the Civil Code to the common law with legal in the Code of Civil The of the Civil Code are and in common law are in in the Louisiana to is found in other Civil which a the civil law and common law the of the with French and Spanish in the of the other endogenous and exogenous should not be even they are to of radical who not at the law from the perspective of the of from the point of of each to a of whether legal or not in the There must be of African the gumbo without themselves The of in or in not their may the way their and their of There is also of the and the who have their and The history of Louisiana law as and by the is to be more of the of the as the and The boat people from who as the of Louisiana contribute to the of while legal It may seem to for legal pluralism in the Civil Code as this is the of the civil law of the Code is to that of law are law and the two of the law in the civil law should be limited to of it not the of Louisiana not seem to a it is that the of the Civil Code room to law by the their their and in that the of and may multiculturalism to the of the legal The of are and the of on by radical though this is in a The Louisiana Code draws from The of the by known as the the of the from Spanish as well as from the French and who much of the French Civil It has been that the of the Code in to the of and the the of and from a mixture of Spanish, and English on the of in and were on as a source everywhere in the United and also in Louisiana. In the Louisiana the Louisiana State with a to the Civil it prepared a piecemeal revision of the by The revision of each is prepared by a of and While most of them the people and their local a have brought to the mix ingredients from the In to the to French and Spanish from the of and or from law can be found in the revision of the law of the of the from and can be in the revision of the law of the of the common law ingredients have also been into the Louisiana common law though of portion and in of remain in the The added on the of or is a more common law its common law the it is of a of the law of the common law are from the of states, in of is in and with which is the of of the French Civil the the of the in the of is in a Civil as the of it that the of a The added are of common law and Louisiana law in with the law of the Civil Code in and in much to the of who to keep the Louisiana for a civil law system in the English language, a civil law than the of the common The Louisiana of the civil code in though the of of the French Civil Code were by the of common law as were the of American in the United States in the alongside other mixed as Africa, and Louisiana has a to the civil law tradition, from the of the common law and its legal this Louisiana also English of of French legal as civil law by and and of and of the French legal in the Louisiana also a in the Louisiana Civil and the Civil Code Louisiana has been the of the French civil law in for two The French to that the American codified their civil law by the model of the As as the French one should not that the Louisiana Civil Code of has been more than a of The Louisiana Civil Code is the of the Spanish civil long in much of and it much in in the not its civil code until 1889, also with an of the Louisiana Civil The of the Louisiana Civil Code as well as the French Civil Code in the in French by and in Spanish by these that other of the as the of the and the Civil Code of The of the Louisiana civil even one in the and even It even the of the civil law tradition, the Code the by of a civil code for the state of civil by the in served as a model for the Civil Louisiana, the United States also received a civil law by way of in the and of the which of the United on of with legal while to In and to be The Civil Code of Louisiana, in English the is again in and in in its The Louisiana not though French remains by over of the state population and is in of While from to a of the cultural and linguistic The French of the Civil Code is on a of the and of the civil law of Louisiana, the to be are of French the the code on two A also and the of Civil is a Spanish which may the Louisiana in as or are and the they the of this legal the of its multicultural Whether it is to the of this Report, though it and in mixed and not mixed The Puerto legal system is a mixed, mixed system with other mixed legal systems the The mixture is to one in and as private Anglo-American as and law and legal and as the of the legal The for the mixture and in history and which to a short of Spanish and U.S. in the Puerto Rico as a Spanish colony in during to the It by and mixture is one and to Puerto Rico as part of the in the of Louisiana and the southern United States, these slaves were and brought to not from a from African were not from their native they were also from their The and especially the and legal from which they not transported to their and in the Caribbean, the or even the of legal as can in the with with and with a long history of legal they were over by As as the local population there are of the native or population, this though and The to local and by as de were and they have an it more in where the population more than in the The legal mixture one in of and is the of the or of and cultural In the Caribbean, until the of and North American and the to a land where they there a The two at times they to local the new were an and not into The into of legal and cultural that in more local not in the Puerto Rico, a a Spanish colony after the of the of its and North American in the decades of the than African which Spanish until the the Puerto Rico, and were the of had a Civil in 1889, to the in and had in a a a land and continental and the of the Puerto Rico a Spanish for a American and in the to a in the United States and in and Puerto the times called in became a U.S. for years, the to in local the to the more over local the United States over has become the U.S. in the of the where are Puerto Rico to the United States by the of of The where a of continued to be a and after from the United States. American in the Caribbean the of the of the which two decades from at the of its A in by the United States, its from and to of as of to become a and its land that continued until the The a debate in the United States the legal of the In the many of the Spanish were into in the United States had to to with Puerto Rico, a speaking territory with legal and The to that not with and of the new A of called the Puerto Rico an one that to had in the of the United States, not have to become a state the nation. The which in the to keep the private in at the of the Spanish U.S. of it in and in to the U.S. the of the new that of and which and the American not have to the legal long in on the a system had and with during as a private in The Spanish Civil and the the and other of private from the Spanish were with to with of from the Louisiana for to the 1902 and American the of and a U.S. which a with then and the as U.S. and and law were from from and and on U.S. Puerto Rico a of and that had been in the American law became that in the United States and in the all two of the American Code had been with English the and law were also as were American were in law which by the had the American model of legal with in the of the American and the American of however, after the Spanish Civil as is by the of Spanish and French and American in were in the a new Civil Code into law in 2020. new code a more from and the new Civil and than from the American one the and of and both on the or of the are by the new code a by the that the of Puerto Rico into the United States as a state in the which the of codified private to the legal were for by the who on called Puerto than tradition, and who American over local which called the As has been it is to the than to describe the be that as it it that as long as Puerto Rico Spanish as its common and American private law in other than with an American and especially as most also and The have been a source of for the of American States, which has a model for and for two have not American have found a source of in that for a more of to be and to keep on they have to for Puerto have to with the legal mixture they have and at in both the Spanish, and the American legal and much as they at is other of the debate are cultural and Spanish language, legal and American to the United States and its on to in and there in which in and land the system and people and and and the in not in a mixed with a mixed even at times it its cultural and legal an and who that should not of the from the that were not The and for their with to and The that and slaves were of the most of law and a in legal on to and their to their and were not of that their or had they were of of by and of them to their and legal awareness to the of and to the of are descendants of the at the of the of the are of or or descendants of the of of or physical are of of their or their at the of the of the is the a A may be by a or should have known that the the other to on it to and the other in may be limited to the or the as a of the on the on a without is not of that to by it to may of and and be by the of who have had a of for of an not for or of or are to a physical or or by the on the or of the

Aleksandr P. Alekseenko

There are different approaches worldwide on how to regulate cryptocurrency: legalization, partial ban, or absolute ban. China has chosen the third option. Since 2013 the PRC has been introducing restrictive measures targeting ICO, Bitcoin and other cryptocurrency activities. In 2022 it finalized the formation of a legal framework for cryptocurrency regulation by publishing "Judicial Interpretation on Illegal Fundraising Criminal Cases." The main reasons for the prohibitive Chinese approach are combating money laundering, ICO related scams, and illegal financing, i.e., public interest prevails over private interests. An analysis of the judicial practice of Chinese courts demonstrates that despite a rising number of cryptocurrency related civil disputes, plaintiffs are deprived of judicial protection because investing in digital financial assets is illegal and the rights of investors are not legitimate. The paper argues that a cryptocurrency ban makes it impossible to satisfy claims concerning illegal fundraising activities, while encouraging investors not to have any relations with illegal agents, brokers or exchanges.

Michael Davar, Ioana Bratu

No abstract is available for this record.

Florence Guillaume, Sven Riva

For the past twenty years, the use of the Internet has facilitated international commercial relations between people who do not know each other and who are geographically distant. Disputes resulting from e-commerce have undermined the supremacy of state courts, which have proved unable to provide an appropriate response to small claims arising in an international context and raising delicate questions as to jurisdiction and applicable law. The length, cost and complexity of the procedure, as well as the risk associated with the international enforcement of the judgment are deterrent factors that led e-commerce platforms to develop online dispute resolution (ODR). Thanks in part to the removal of intermediaries, the transfer of cryptocurrencies and other crypto assets using blockchain technology has further facilitated international commercial relations. The decentralised and distributed characteristics of blockchain technology and the pseudonymity of its transactions has led to a new economy growing independently from nation states. This technology has brought an additional degree of complication in the application of Private International Law (PIL) rules by removing the illusion that online transactions can be linked to the territory of a state. Smart contracts also allow the creation of digital entities that can enter into commercial relations. The first Decentralized Autonomous Organization (DAO) was the source of a resounding dispute between parties with diverging interests, which had to be urgently resolved without any access to state courts or a dispute resolution mechanism. This case revealed the risk of disputes in the blockchain environment and the resulting legal uncertainty, and led to the emergence of various models of blockchain dispute resolution (BDR) mechanisms inspired by the solutions developed in e-commerce. This chapter deals with the application of PIL rules to the resolution of disputes involving DAOs. The authors first analyse what is a DAO and whether DAOs legally qualify as companies. What is at stake is the legal personality of DAOs and their capacity to conduct legal proceedings. The authors then examine whether disputes involving DAOs may be brought before state courts. This analysis highlights the problems related to the location, pseudonymity, and uncertainty regarding the legal personality of the participants of the blockchain environment, which challenge the jurisdiction of state courts in case of a dispute. The authors then draw on the experience acquired in the field of e-commerce to examine the advisability of setting up alternative dispute resolution mechanisms available to the actors of the blockchain environment. Based on an analysis of existing BDR mechanisms, the authors examine whether and how BDRs are likely to avoid a denial of justice and bring legal certainty to disputes related to contractual relationships with DAOs formalised through smart contracts as well as disputes related to the governance of DAOs. The authors find that a BDR decision which can be directly enforced through smart contracts confers effective justice to the actors of the blockchain environment. Finally, the authors address the more delicate issue of the enforcement of a BDR decision on non-crypto assets. This approach shows that a type of justice based on crypto-economic incentives challenges the concept of fair justice. This could be an impediment to obtaining the assistance of state authorities for the enforcement of a BDR decision outside of the blockchain environment as this type of decision could be considered contrary to public policy. The analysis is mostly based on Swiss PIL and major PIL conventions. In this chapter, the authors outline the contours of a new private justice system designed to provide decentralised autonomous justice to the actors of the crypto economy.

David Archard, Joe Brierley, Emma Cave

In Vavřička and Others v the Czech Republic,1 the Grand Chamber of the European Court of Human Rights (‘the Court’) considered for the first time whether compulsory childhood vaccination can be compatible with the European Convention on Human Rights (ECHR). The majority2 found the Czech Republic’s vaccination policy to be ‘fully consistent with the rationale of protecting the health of the population’3 and within the wide discretion (‘margin of appreciation’) given to Member States on health issues.4 The policy struck a fair balance between the protection of children against serious diseases and the protection of families from the consequences of refusal. Dissenting Judge Wojtyczek agreed that mandatory vaccination can be Convention-compliant but argued that the facts did not support such a conclusion in this case. He thought that the majority’s consideration of the public interest did not give adequate weight to the best interests of individual children, as opposed to the interests of children in general, or to the particular risks, costs, side effects and benefits5 of each vaccine as opposed to the ‘general consensus over the vital importance of this means of protecting populations against diseases’.6 Filed before the COVID-19 pandemic, the case will be of broad interest given the long-term political and legal debate around compulsory childhood vaccination. Whilst the UK is one of several European countries7 which maintain a voluntary vaccination programme, a growing number impose restrictions on voluntariness.8 Moreover, there is emerging evidence of a link between mandatory vaccination and a higher uptake of vaccinations and reduction in disease.9 We explore the reasoning in the judgment and its implications for children’s rights and in the debate around COVID-19 vaccination. In the Czech Republic, the Public Health Protection Act 2000 and an implementing ministerial decree require childhood vaccinations against nine diseases.10 If parents do not comply without good reason, they commit an offence and may be subject to sanction. The first applicant, Mr Vavřička, was fined when he refused to have his 14 and 13-year-old children vaccinated against poliomyelitis, hepatitis B and tetanus as required by the State. The domestic courts dismissed his appeals. The other five applicants refused some or all of the nine vaccinations, resulting in their children’s exclusion from preschool. The Novotnás, for example, declined the measles, mumps, rubella (MMR) vaccine for their daughter, who was consequently refused admission to preschool on the ground that she posed a health risk to the other children. Their challenge in the domestic courts was also unsuccessful. The Chamber relinquished jurisdiction to the Grand Chamber of 17 judges due to the serious and controversial nature of the questions raised. Several governments11 and non-governmental organisations were given leave to intervene. Some of those governments (notably France, Poland and Slovakia) also restrict voluntariness. Indeed, the Court noted a European trend towards mandatory vaccination ‘due to a decrease in voluntary vaccination and a resulting decrease in herd immunity’.12 The Court did not consider there to be ‘any appearance of a violation’ of Articles 2, 6, 13 or 14 of the Convention.13 Nor was there found to be a breach of Article 9, which protects the right to freedom of religion and conscience. Most of the judgment is given over to the potential violation of Article 8. Article 8 is a right in two parts. To show a violation, Article 8(1) must be engaged, and there must be no justification under Article 8(2). Article 8(1) states that ‘Everyone has the right to respect for his private and family life, his home and correspondence’. Previous judgments of the Court make clear that compulsory vaccination constitutes such an interference,14 and the Court accepted that this was so in Vavřička.15 Article 8(2) qualifies the Article 8(1) right. This means that public authorities can interfere with the right where it is justified on the basis that it is lawful, pursued in accordance with one of the legitimate aims set out in Article 8(2) (which include inter alia the protection of health and the protection of others), and is ‘necessary in a democratic society’. Applying Article 8(2), the Court found there was no violation of Article 8. It was ‘in accordance with law’ because it was based on accessible domestic law, which made the requirement and penalties for non-compliance clear.16 It followed a legitimate aim because it protects the health and the human rights of others: the objective of the relevant legislation is to protect against diseases which may pose a serious risk to health. This refers both to those who receive the vaccinations concerned as well as those who cannot be vaccinated and are thus in a state of vulnerability, relying on the attainment of a high level of vaccination within society at large for protection against the contagious diseases in question.17 The requirement of necessity merits further explanation. An interference with Article 8(1) is ‘necessary’ to achieve a legitimate aim (the protection of health and the protection of others, in this case) if it answers ‘a pressing social need’ in a manner proportionate to the legitimate aim pursued. The Court recognised a wide margin of appreciation in relation to health issues, particularly those involving ‘sensitive moral or ethical issues’, such as compulsion.18 The Court accepted that: there is a general consensus … that vaccination is one of the most successful and cost-effective health interventions and that each State should aim to achieve the highest possible level of vaccination among its population …. Accordingly, there is no doubt about the relative importance of the interest at stake.19 The value of childhood vaccination rendered compulsion an acceptable mechanism in answer to a pressing social need, particularly in the light of the positive obligation of States to protect citizens’ lives and health.20 As we shall explore below, it was pertinent that children’s collective and individual best interests21 ‘are of paramount importance’.22 Also relevant to establishing that an interference is ‘necessary’ is the proportionality of the action to the legitimate aim pursued. Proportionality was of central importance in Vavřička. It was assessed in relation to the particular facts in the various applications before the Court rather than in a wider abstract sense.23 Relevant factors included (inter alia) the limited number of vaccines mandated (nine), the exemptions that apply with respect to contraindications and conscientious objection,24 the nature of the compulsion which does not force compliance if people are willing to accept the fines and limitations on preschool provision,25 the effectiveness of the vaccinations in question,26 the availability of adequate compensation,27 and their safety record.28 Regarding the last of these, the Court heard that out of 100,000 children vaccinated annually in the Czech Republic, there were five or six cases of serious adverse effects.29 They are rare but serious, and so the Court reiterated30 the importance of taking precautions before vaccination. Precautions include checking for contraindications in each case and safety monitoring. In the case before it, the Court accepted that national methods kept the vaccines ‘under continuous monitoring by the competent authorities’.31 The Court also considered the nature of the penalties imposed for non-compliance. The fine was not excessive and did not impact on Mr Vavřička’s children’s education.32 With regard to the other applicants, it was accepted that the refusal of a preschool place impacted the opportunities afforded to the young children, but this ‘choice’ could be avoided by accepting the legal duty to vaccinate.33 The Court considered that the impact was time-limited, and the parents in the cases before the Court were able to ensure their children’s development in other ways. In sum, invoking the argument of a duty of easy rescue,34 which applies when the cost of acting is minimal and the benefits to others are significant, the Court said: [I]t cannot be regarded as disproportionate for a State to require those for whom vaccination represents a remote risk to health to accept this universally practised protective measure as a matter of legal duty and in the name of social solidarity for the sake of the small number of vulnerable children who are unable to benefit from vaccination.35 As is evident from this quotation, the Court endorses the basis of the Czech Republic’s compulsory vaccination policy: 36 Solidarity towards the most vulnerable.37 Submissions from the German Government also emphasised the principle of solidarity in the formation of their policy, which requires proof of measles vaccination, immunity or evidence of contraindication as a prerequisite for enrolment in schools, subject to a penalty of EUR 2,500 and exclusion from educational institutions:38 Compulsory vaccination aimed to protect not only those vaccinated but also society as a whole and, in particular, vulnerable persons who cannot be vaccinated themselves on account of their age or state of health.39 The appeal to solidarity is interesting. It has one of its most obvious applications, as here, within the public health context. When we return to the context of the United Kingdom, however, the principle of solidarity is less familiar. It also needs to be carefully distinguished from other notions, such as those of reciprocity and justice. Hence, the claim is not that it is fair to distribute the burdens and benefits of vaccination in a certain way, nor that the vaccination of some is owed in reciprocity to those vulnerable to disease. A helpful definition of solidarity that does distinguish it from these other terms is given in the Nuffield Council on Bioethics Report, Solidarity: Reflections on an Emerging Concept in Bioethics, where it is stated to be ‘shared practices reflecting a collective commitment to carry ‘costs’ (financial, social, emotional or otherwise) to assist others’.40 As the Report makes clear, solidarity is both a description of the nature of certain practices and a prescription of these as ideal. In other words, solidarity characterises what is valuable about certain social forms and what is needed to maintain their valued character. In simpler terms, solidarity is about all being in it together and, as a result, all being prepared to share the burdens of a collective enterprise. On this account, immunising children against infectious diseases is justified because this ensures that everyone—all children and, indeed, the rest of society to which any child belongs—benefits. This is not best understood as being about balancing individual and collective benefits and burdens. Instead, it is about protecting what matters in our society: that we are all bound together by shared ties, and everyone must play their part in maintaining those ties. Solidarity is an important ideal and has had noticeable appeal in the current pandemic, where the need to secure high levels of vaccine take-up across society is pronounced. Judge Wojtyczek, however, points out that the case for social solidarity as a justification for mandate is most robust in relation to infectious disease. It is less relevant to tetanus, one of the nine mandated vaccines in Vavřička, which is not contagious and where vaccination has no bearing on herd immunity. Solidarity is not wholly irrelevant as long as tetanus remains a public health issue41 and as long as the goal extends to solidarity between countries with the aim of reducing global health inequalities. Nevertheless, this was not explored in Vavřička, where solidarity is inadequately defined. Moreover, the ideal sits oddly alongside any talk of interests and rights when these are understood in terms of what each individual, considered in isolation, may lay claim to. Indeed, it is hard to see how one might justify the compelled vaccination of children by appeal both to solidarity and to the best interests of the child, especially if the latter is understood to be paramount. In Vavřička the Court said: It is well established in the Court’s case-law that in all decisions concerning children their best interests are of paramount importance. This reflects the broad consensus on this matter …. It follows that there is an obligation on States to place the best interests of the child, and also those of children as a group, at the centre of all decisions affecting their health and development.42 The decision is based on both the collective and individual interests of children. The Court speaks of the best interests of children being of paramount importance, but refers in the same paragraph to Article 3 of the United Nations Convention on the Rights of the Child, which says ‘In all actions concerning children … the best interests of the child shall be a primary consideration’ (our italics). Dissenting Judge Wojtyczek found this aspect of the majority judgment problematic. He argued that: [T]he central question around the best interests of the children is not whether the general health policy of the respondent State promotes the best interests of children as a group, but instead how to assess in respect of each and every specific child of the applicant parents ... whether the different benefits from vaccination will indeed be greater than the specific risk inherent in it.43 Yet, as is public health where what is at is the of to ensure the good health of a population rather than a cannot be rendered in the terms of the of between such as a and or and matters to such is whether the or to the and what is is the value of individual In the case of a young child, there can be no appeal to their children are not of such a child is not competent to parents and the make decisions on their taking the the what is is what is in the best children, their to if they are competent to do In and the a to competent children’s decisions to protect their best at where the decision or at A to a competent refusal of has recognised in the but is in Applying these general to childhood interests we should account of is It can each and every individual child, or it can the children as a collective In a public health what matters is the good of the the population as a This is the case with against infectious disease. the must be in place for a to be what is what a vaccination to to be vaccinated with population immunity In this it does not to in terms of individual of as well as the balance of and benefits to the population as a are also the majority in Vavřička, this particular child is in their interests and also in the interests of all children, in as as a vaccine both protects against the relevant and to Indeed, if a vaccine does the a child indeed all the interests of who might the if our is a public health and we should account of the balance of and benefits across a whole each child is not justified by its being in their best interests being the we cannot that the best interest of the individual child is paramount where that means of greater weight than other as we have ethical of and of the of a interests are relevant and In and parents can vaccinations for young children. In about child vaccination between those with the must consider each child with his best interests as the paramount In such the courts have recognised that vaccination against the of a but with of or the child is in the is not a disproportionate breach of the Article 8 rights of the or the the courts have found in each case that vaccination is in the best interests of individual In a Court of decision said: vaccinations are not the evidence that it is in the best interests of children to be vaccinated in accordance with Public Health there is a specific in an individual Public Health a collective of the interests of children and on their can the collective interests of children the consideration of the best interests of the particular In what is childhood vaccination was no in Vavřička because the children in each of the cases were not against their the parents were about the penalties The Nuffield Council on Bioethics Report on Public a the various a Government might to a public health goal should be from the to the most The the and the higher the the greater the required justification of the Public health it further should the means to achieve the required public health the public benefit of a vaccination is population immunity. a collective benefit can be if the benefit to each vaccinated individual is or If the public benefit can only be if of children are the question of what to ensure that this are proportionate and justified being the The question as young children cannot give their to being and in and their best interests are argued to be paramount. Proportionality was central to the but Judge Wojtyczek that greater should have given to the availability of less the Nuffield Council on Bioethics Report in that that and those that nor but and to In Vavřička, were in both the to have their children vaccinated and the children a to This latter on the child by and on the by their children’s educational but the Court said: that was the of the made by their parents to to comply with a legal the of which is to protect in particular in that age The to a child is by the to the who are consequently not to the of Indeed, on this account, the balance of and benefits the The parents who not to their child have their freedom to make decisions for their Yet, no jurisdiction and no can to do what their the Court’s of a wide margin of appreciation and limited on less the justification of the Czech policy in Vavřička does not that could breach the Article 8 rights of children or The Court on the of compulsion rather than the but only because those effects were limited in the cases before This can be with justification of the controversial to require vaccination in where it was said: When vaccination is of as it is only in case a child is not vaccinated as by law, a penalty is imposed which may be followed by and The to this penalty no doubt in cases to vaccination where it be whether the penalty is or it does not vaccination in all If a is to the his child remains …. could be made compulsory only by taking the child from the and it against his if he not or to its The effects of have the potential to the proportionality those who cannot the fine or for whom be without might be compelled in that those with greater some limitations on may pose only an interference with for example, of uptake is by rather than not a child does to serious to the child, the justification of childhood vaccination cannot be only in these as we have what does justify the of children is the fair of and benefits across a whole children from is in the interests of all and not the best interests of the child with The proportionality of is pertinent in the debate over COVID-19 In the vaccine out in not how we do We do by the Government a which will in The potential for of and will be relevant to as will the on that from vaccination to to and children be required to COVID-19 It is the first children to receive COVID-19 vaccination will be and so in the will be competent to their to vaccination. children and young will be children, both the risk of vaccination and the risk of COVID-19 is about the and of what is is the between the justification for childhood vaccination, which is clear and and the limited for the and both and long-term safety of all the individual COVID-19 vaccines in and indeed for the last of these in have in some COVID-19 vaccines that On a of vaccine in some countries for childhood it will be to see whether the to the pandemic, both for and in the vaccine is is whether the of COVID-19 will higher in the population without national If this and their parents may have a claim to vaccine and be willing to accept any of vaccine and have argued for mandatory COVID-19 vaccination in all children. They that it is in children’s individual and collective interests to receive COVID-19 the duty to the child, the duty of easy the duty to protect child by children from the and effects of and this argument is by the current of evidence for safety and in for example, the which is not mandated in countries in child definition is is not the its such State over citizens’ in terms of the of their and has the pandemic, which might public of any of vaccine children the to for is Judge Wojtyczek, in his argued that parents are in the best to children’s best In countries such as the United that a voluntary vaccination policy, the on rights to is in the case of v for example, to to interfere with decisions about their children’s and in said: [I]t is a principle of family in this jurisdiction that for decisions about a child rest with his In most the parents are the best people to make decisions about a child and the State whether it be the or any other public has no with the of the child is or is to as a of the given to the child not being what it be to a to Whilst in and about have thus in of vaccination on the basis that this is the that is in the best the decision in Vavřička that the to State mandate is but a small Indeed, it is an the UK Government was before the Vavřička will impact on the of It has a on solidarity that is in the United and which It has individual best interests with the collective interests of In particular, this judgment the that best interest must be considered should be understood both as the individual child and as the collective of all children. is in the interests of the child who is vaccinated and all other children who benefit from the general of a there are of compulsion and should and be and might proportionate and the COVID-19 has the and impact on in the of an Whilst the has not vaccine it has the potential of vaccinations to and social We the support of the which has two of the in a on ethical and in the pandemic,