Maastricht Journal of European and Comparative Law

This paper provides an overview of recent credit rating-related initiatives in the US and EU, including those at the level of some of the world's leading central banks, together with an assessment of the remaining challenges. The authors argue that (i) notwithstanding concerns over the objectivity and reliability of their ratings, credit rating agencies have, by and large, offered reasonably good estimates of credit quality, (ii) careful consideration is necessary before settling with alternatives, as opposed to complements, to their ratings, (iii) greater transparency in issuer financial information, and improvements in the internal assessment capabilities of financial firms are pre-requisites if reliance on credit ratings is to be further reduced. The authors also conclude that, while central banks have done a lot to reduce their reliance on credit ratings, any further decoupling of their collateral frameworks from credit ratings, beyond the field of sovereign issues, will pose a considerable challenge for them.

The purpose of this article is to demonstrate the consistence and coherence of the case law of the Portuguese Constitutional Court concerning social rights during the public debt crisis. The Constitutional Court accepts that the legislature has a wide margin of appreciation to reverse the level of protection of social rights. This includes the right to a fair wage, the right to a pension, and the right to social benefits. However, the retrocession of social rights shall pursue a significant public interest and respect the principles of equality, proportionality and legal certainty comprised in the rule of law. When the Constitutional Court considers that these principles are violated, it does not hesitate to declare a norm unconstitutional, even if, according to the government, the norm or norms in question are essential in order to fight the economic and financial crisis. The so-called ‘case law of the crisis' has been strongly criticized. This study will mainly analyse and contest the arguments of the critics.

The diverse nature of substantive private law systems across Europe has amplified the development of an EU Civil Justice system based on harmonized EU private international law (PIL) mechanisms. The authors argue that the problems of jurisdiction, choice of law and recognition and enforcement of judgments will be recurrent for courts and litigants in a cross-border context, which may adversely affect the level of litigiousness. After analysing several types of PIL cases brought before the English courts, the authors make the case that there is a need for an appropriately conducted comparative study to collect empirical evidence which explains the cross-border litigation pattern and assesses the effectiveness of the EU PIL instruments. It is concluded that devising an appropriate institutional architecture for the interpretation and application of PIL legislative instruments is key to the creation of a genuine European area of justice as there cannot be rights without appropriate remedies.

This article scrutinizes the positions of stakeholders in the light of the arguments of incompatibility of the intra-EU BITs with EU law. Whereas the interest of the Commission and some EU Member States was to protect the legal certainty of EU law and budgetary expenditures, the selective short-term interest of deliberately invoking compliance with EU law conflicts with the long-term interests of the Union, the EU Member States, and investors, including enterprises wholly-owned by the national governments of EU Member State. While waiting for the Commission to come up with a solution to the issue of incompatibility, EU Member States might find themselves exposed to a substantial degree of moral hazard since Member States' courts should set aside the enforcement of arbitral awards that ignore the primacy of EU law. It is suggested that the tension between different interests may impact the competitiveness of the investment environment of the EU as a whole.