This chapter explores the applicability of competition law, particularly in its EU dimension, to actvities, tournaments, broadcasting and others of the ATP, although the same rules apply mutatis mutandis to the WTA and the ITF. The chapter commences by examining good governance standards in EU law and policy and explores access to the organisational market for rival tennis tours under competition law. In doing so, it examines the legality of blocking rivals from accessing the organisational market, in particular in relation to rules 1.07, 1.14 and 8.05A(2)(e) of the ATP Rulebook. The chapter assesses the compatibility of these rules with EU competition law, especially in relation to recent judgments adopted by the CJEU and whether the restrictions to competition imposed therein are compatible with legitimate objectives and proportionality. The chapter examines whether wild cards are compatible with Article 56 of the TFEU and the freedom to provide services.

This chapter focuses on the practices of confiscation and forfeiture, by which the government permanently transfers money or property from the individual to the state, without compensation, because of a connection between the property and alleged unlawful conduct. The chapter describes and critically considers the rules on both conviction-based confiscation and forfeiture and those allowed without obtaining a conviction in six jurisdictions in Europe (the European Union, Finland, Germany, Norway, Sweden, England & Wales) and relatively common practices at the federal and state levels in the United States. The chapter describes and examines several of the purported benefits and costs of these practices as well as key issues related to adjudicatory processes and statutory and constitutional protections. In doing so, the chapter identifies a number of fundamental areas of concern, offering some suggested avenues for reform or further study.

What kinds of consideration should guide decisions about the scope of the criminal law? This chapter compares the ways in which German and Anglo-American theorists have tackled this question. After some comments on what it is to criminalise conduct, and on the kinds of reason that an inquiry into principles of criminalisation should aim to identify, it offers some historical background to the contemporary debates. It then turns to a critical comparative discussion of two popular principles of criminalisation, the Rechtsgutslehre and the Harm Principle, in the course of which it also attends to Legal Moralism, and to the role of the Proportionality Principle – a principle explicitly central in German theorising, and at least implicitly essential to Anglo-American theories. Finally, it considers some alternative principles of criminalisation, and asks whether we should look not for a systematic account of ‘the principles of criminalisation’, but for a messier, more pluralist account of the range of considerations (principles, reasons) that should bear on criminalisation decisions.

Constitutions set out fundamental principles of political morality that bind institutional action and assign strong political rights to individuals. At surface level, the principle of proportionality is a methodological device. It operates as a doctrinal heading under which courts scrutinize state interference with individual liberty and assess the scope of their own authority. According to the orthodox understanding of proportionality, this scrutiny takes the form of balancing rights against public interest, which raises questions about the legitimacy of judicial review. This chapter argues that, contrary to the orthodox view, proportionality is primarily about the normative foundations of constitutional rights and the duty of courts to pursue, through principled legal reasoning, the moral truth about individual rights. On this rival account of proportionality, rights are equality-based moral norms constraining state action and no actual balancing takes place by courts. If we are to take seriously both the idea of fundamental rights and the principle of proportionality, we must abandon the misleading metaphor of balancing and the problems of incommensurability and judicial scepticism to which it leads.

Chapter 3 highlights several instances of State practice where the reciprocity paradigm continues to influence belligerent reprisals. Its bearing emerges from those formalizations of the mechanism that stress the purpose of restoring the balance in rights and obligations unduly disturbed by a breach of the laws of armed conflict. The chapter will first retrace this interest in several positions expressed by States before, during, and in the aftermath of the Geneva Diplomatic Conference that led to the adoption of the 1977 Additional Protocols to the 1949 Geneva Conventions. It will then focus on the provisions of military manuals, with a particular focus on US practice and the latest Department of Defense Law of War Manual. Finally, it will provide an extensive and, under many respects, unprecedented analysis of the Italian case-law on World War II atrocities: this judicial practice, which has been revived only recently, has brought to the fore several elements that are strongly associated with reciprocity. The chapter will thus highlight notable examples in which the reciprocity paradigm contributes to defining the purpose and function of belligerent reprisals.

This chapter addresses the suggestion that for a special regime to exist, community members must be engaged in a joint enterprise. In the context of international law, to claim that a group of international law specialists is engaged in a joint enterprise is to assert that they do what they do based on the idea that some certain state of affairs is desirable. As Chapter 4 argues, in the context of international law, the existence of such a presupposition can be inferred from the actual pursuit of those specialists of a distinct state of affairs, and the way in which they perform assignments.

This chapter refines the concept of constitutional symmetry and anticipates some potential objections. Contrary to what skeptics might assert, judges can reliably assess whether particular constitutional understandings are symmetric or not. In addition, favoring symmetry is valuable even though political alignments may shift in the future, and arguable asymmetries in the Constitution itself are not a reason to disfavor symmetric interpretations of provisions whose meaning is debatable. Symmetric interpretation also addresses contemporary challenges better than competing proposals to embrace “proportionality” in rights adjudication, give greater weight to existing precedent, or pursue one contemporary constitutional vision or another in no-holds-barred fashion. For judges who embrace an ethic of symmetric interpretation, a preference for symmetry should hold the greatest purchase in crafting general understandings of discrete constitutional provisions rather than overall interpretive theories or case-specific results, and judges should favor symmetric understandings even if their colleagues do not.

I argue that in some circumstances the capacity for voluntary agreement making can be an adequate realization of the All-Affected principle. The basic idea is that one can, with this capacity, attempt to advance one’s interests by entering into voluntary agreements with others. The All-Affected Principle can be satisfied if persons are able to enter into agreements with those whose actions affect them or with those who can advance their interests. Persons should have an equal say or a say proportionate to their legitimate interests and this can be realized in voluntary agreement making, or so I shall argue. I draw an analogy between democratic decision making traditionally conceived and voluntary agreement making. This helps us see how we can define appropriate procedural norms for the evaluation of processes of voluntary agreement making in both market and international contexts. I argue that fair voluntary agreement in markets and international decision-making is a realization of the same principle as fair collective decision-making in democracy only one is for decentralized decision making and the other is for centralized decision making.

Chapter 5 commences by retracing how, beginning in Nuremberg, the reasonable person entered the battlefield in the form of the reasonable military commander. Subsequently the chapter explores two challenges that confront the concept of the reasonable person on the battlefield and beyond. The first challenge consists in the fact that it is easier to empathise with people who are close to us. In the theatre of war, this raises the question whether the reasonable person, when acting as the reasonable military commander, can meaningfully balance the interests of civilians on opposite sides. The second challenge relates to the fact that it is more difficult for powerful people such as military commanders (or judges) to take the perspective of others and to empathise with them.