The Path of Technical Standards and Legal Metrics

Indicators and technical standards have gained significant track as tools of legal engineering. Citizens, legal operators (e.g. judges, officials, etc.) and attorneys are now confronted on regular basis with the need to interpret, apply or, to very least, refer to legal metrics and standards to decide a controversy or, simply, to undertake a legal course of action. This talk intends to analyse recent developments and examine the extent to which these devices are becoming part of legal systems, and in particular, of the European legal order.  To illustrate this, we analyse the decision of the Court of Justice of the European Union in the James Elliot Construction case pronounced 27 October 2016. In its decision, the Court has for the first time affirmed its jurisdiction to interpret harmonised technical standards on preliminary reference. We argue that the decision marks an important breakthrough in the evolution of EU law by recognising harmonised technical standards as part of Union law. This opening offers new possibilities for litigating technical standards and assuring the centrality of the rule of law in the achievement of the internal market. It also invites to reflect on the extent to which other types of standards and metrics may be subject to the jurisdiction of the Court. The talk will conclude on two fronts. First, it will highlight the implications of the James Elliot decision in relation to the Meroni doctrine, the potential conflicts between the principle of free access to the acts of the Union and the protection of intellectual property, and the impact that greater litigation over harmonised technical standards may have on the caseload of the Court.  Second, it will illustrate how legal metrics and technical standards are transforming legal reasoning by introducing a mathematical turn in law.

Arnaud Van Waeyenberge LL.B. (Brussels), M.A. (Louvain), LL.M. (Bruges), Ph.D. (Brussels), is Assistant Professor of European Law at HEC Paris, and Visiting Professor at the Institut d’Etudes Européennes of the University of Brussels (ULB). He mainly teaches Company Law, European Union Law, and Legal Reasoning. Prior to joining the HEC faculty, he was an attorney-at-law at the Brussels Bar (Clifford Chance LLP) and a legal clerk at the Court of Justice of the European Union (General Court). He is editorial board member of the European Journal of Risk Regulation (CUP) and the Cahiers de droit européen (Bruylant). During the last years, his research has been centered on European business law and European legal theory. He has published several books and articles on these topics. His most recent articles include  “Free Trade Agreements after the Treaty of Lisbon in the Light of the Case Law of the Court of Justice of the European Union” (European Law Journal, 2014), and “The Role of Codes of Conduct in the Assessment of Unfair Commercial Practices” (Journal of Business Law, 2016). He recently published two books in French about the new instruments of European Union Regulation called the Nouveaux instruments juridiques de l’Union européenne: Evolution de la méthode communautaire (Larcier, 2015) and about the effective judicial protection in the European Union called Actualités de la protection juridicionnelle dans et par l’Union européenne (with Louise Fromont, Larcier, 2016).

David Restrepo Amariles LL.B. (1^st Class) (Colombia), M.A. (1^st Class) (Milan), LL.M. (1^st Class) (Leuven), Ph.D. (Hons) (Brussels), is Assistant Professor of Private International Law and Arbitration at HEC Paris, and Visiting Professor of International Business Affairs at Paris II Panthéon-Assas and SciencesPo Paris. He is the current co-director of the International Arbitration Project (IAP) conducted jointly by HEC Paris and the International Court of Arbitration of the International Chamber of Commerce (ICC). He is editorial board member of the European Journal of Risk Regulation (CUP). In 2015 he was research fellow in international arbitration and the rule of law at the University of Oxford. Between 2009 and 2013, he held a position of research associate in international law for the European Union. He previously advised on the negotiation of trade and investment agreements with the European Union. His recent publications include: “Transnational Legal Indicators: The Missing Link in a New Era of Law and Development Policy” (Palgrave Macmillan, 2016), “Driving Legal Performance through Indicators” (forthcoming International Journal of Law in Context), “Fair and Equitable Treatment in Investor-State Dispute Settlement” (Forthcoming Journal of Business Law) and “The Impact of the French Doctrine of “Significant Imbalance” on International Business Transactions  (with Eva Mouial & Matteo Winkler, Forthcoming Journal of Business Law).

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