Les uristes français se disputent sour les recours par la Cour de cassation à la proportionalité au détriment du traditionnel syllogisme. Le débate semble être aujourd'hui dans une impasse. Il est néanmoins posible d'y contribuir en identifiant au moins trois lieux communs sur lesquels reposent les arguments des uns et des autres : la propostionnalité comme forme de raisonnement assimilée à l' equité ou la liberté decisionnelle totale ; la proportionnalité comme mécanisme accompagant nécessariement l' applications des droits fonadamentaux ; la proportionnalité comme moyen de fonder les arrêts sur la persuasión et non plus l' autorité. l' dentification de ce lieux communs à des mythes nous permettra de soumettre la proportionnalité à un exam critique pour montrer que n'étant ni un monstre ni la panacée, celle ci-doit cependant être maniée avec précaution.

This article is a critique of the legal reasoning of the Court of Justice of the European Union (CJEU) in its free movement case law, which relies mainly on the principle of proportionality. The Court initially presents free movement cases as involving fundamental clashes between conflicting considerations of the highest order, most often between market freedoms and non-economic interests (including the preservation of the competences of member states, fundamental rights, national policies and EU-wide values), and thus frames its role as that of a balance—a truly Herculean task. However, the Court does not actually solve these cases by balancing. Instead, it (implicitly) resorts to an alternative, technocratic framework, through which it reduces the cases to technical issues of pure fact and, on the basis of Pareto efficiency, limits itself to weeding out objectively superfluous regulations. The reasoning of the Court is thus characterized by a certain form of bathos: it abruptly and radically shifts from a Herculean balancing of values framework to a seemingly innocuous and purely factual review of Pareto efficiency. It ambitiously, and yet awkwardly, combines an exalted appeal to values with the objectivity and irresistible innocuousness of efficiency review. It is nevertheless doubtful whether the Court’s argumentative structure is at all persuasive: value statements are reduced to declamatory devices of no operational importance, while the Court’s recourse to Pareto efficiency only serves to hide the (obviously) controversial implications of its free-movement case law.

The present article seeks to critically rethink the key issue of how compensation and damages are and should be calculated in the context of investor-State arbitration – the ‘quantum’ question, as is commonly referred to in arbitral practice. We will make three main claims: first that such calculations are premised on a fundamental consensus that presents the work of arbitrators in this area as essentially uncontroversial fact-finding operations and has led to an inflation of awards, second that this consensus is in reality built on a series of myths and unjustifiable assumptions, and third that the realization that this is so should lay the ground for more acceptable calculations.

The present article seeks to identify the particular culture that undergirds the practice of EU law, by drawing from Paul Kahn’s Cultural Analysis of Law. It will do so by extracting from his work certain models for understanding the imaginative life of a political community, most importantly those of the rule of law and of political action, which in Kahn’s observation of American realities stand in competition to one another. This will lead us, first, to consider the particular place held by European integration, as a messianic project of collective transformation. While this might seem to structure the practice of EU law in a way that is consistent with Kahn’s description of political action, such a view, we will then submit, does not consider the particular place of law in the EU’s legal culture, as the very substance in which the European order appears incarnated, and which provides the impetus for much of its development. To account for these two dimensions in the political imaginary of the EU, it is argued that, unlike Kahn’s description of the American context, the rule of law and political action do not stand in tension with one another. Instead, the practice of EU law operates under an idiosyncratic frame of experience, which can be usefully associated to Robert Cover’s notion of “lawful messianism,” and which synthesizes key aspects of Kahn’s account of the rule of law and political action. Finally, to illustrate the operation of just that culture of lawful messianism and its persistence to this day, the article turns to the place of the rule of law as a “foundational value” of the European legal system and recent developments around this particular norm of EU law.

This article offers a reconstruction of how the Court of Justice of the European Union (EU) justifies the territorial scope of application of EU law. Scholarship on this issue tends to advocate for an expansive projection of EU norms in the pursuit of global values, subject to the external limits of public international law. This article will develop a critique of this approach by pointing to its underlying assumptions as to the territorial dimension of the EU's rule, the insoluble practical issues that it leads to, and the need to consider differently the EU's spatial identity and relation to the wider world. It will also be argued that, in fact, other case law sometimes already reflects an alternative vision, by imagining the EU implicitly, not as a ‘global actor’ promoting universal values, but as a concretely situated and spatially bounded community. It will be shown that this is so with the methodological help of private international law, and in particular three doctrines that are traditional to this discipline—the localisation of cross-border relations, international imperativeness, and the public policy exception. This will ultimately allow for a more sophisticated understanding of the EU's territory to emerge—irreducible to the physical coordinates of its acts of intervention, or the mere sum of the physical spaces under Member State sovereignty, but as a distinct space of social relations, informed and delineated by the particular axiology and structure of the EU legal system.