Person: Kouroutakis, Antonios
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Antonios
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Kouroutakis
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IE University
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IE Law School
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Public Law and Global Governance
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Publication The Architecture of the Emergency Framework of Greece: Inactivity and Second Generation Emergencies(SSRN, 2019-03-03) Kouroutakis, Antonios; https://ror.org/02jjdwm75In 20th century Greece, officially Hellenic Republic, which is an independent state from 1830, wars, social unrest, and armed coups informed the drafters of the 1975 Greek Constitution on the issue of emergency. The Constitution of 1975, which established the so-called third Republic, replaced the Constitution of 1952, which was overthrown in 1967 by a military coup that lasted seven years until 1974. The current constitutional document was amended three times in 1986, in 2001 and finally in 2008. The first part of this article will show that de lege lata, the emergency toolbox of Greece, provides policymakers with a plethora of options to address emergency situations. But given the fact that policymakers in Greece have such powerful tools at their disposal to address potential threats to national security before these escalate and cause breakdowns, one may wonder why the constitutional system has been unable to respond promptly and efficiently during recent emergencies — like the economic crisis in 2009 and the emerging refugee crisis that began in 2015. This article will argue that the reason why the Greek constitutional system repeatedly fails to address emergencies in practice is threefold. First and foremost, the emergency framework of Greece is well equipped with numerous provisions, but it still lacks specific provisions on economic emergencies. Suffice to mention here that many newly adopted constitutions contain provisions and regulate economic emergencies explicitly. Second, the imperfect formulation of the separation of powers makes emergencies initiative monopolized by the cabinet, thus, allowing the Prime Minister, head of the cabinet and leader of the majority party in Parliament, to remain inactive during emergencies. Third, despite the fact that the constitutional drafters have foreseen the need to regulate second generation emergencies when there is an official declaration of the state of emergency (de jure), the absence of a specific derivative emergency framework during de facto emergencies creates deadens and inefficiencies. In particular, the occurrence of the refugee crisis amidst the economic crisis is a prime example of an emergency within an emergency. In principle, it is apparent that governments rely on the emergency provisions to face second-generation emergencies as well. But given that emergency provisions are drafted on the assumption that an emergency will occur under normal circumstances, one must wonder if the existing emergency provisions will be good enough to address second-generation emergencies.Publication Disruptive Innovation and Sunset Clauses: The Case of Uber and Other on Demand Transportation Networks(SSRN, 2019-07-10) Kouroutakis, Antonios; https://ror.org/02jjdwm75Uber and other on-demand transportation network companies, such as Lyft and Cabify, have brought significant change in the transportation industry within cities. Calling a taxi was never so simple and easy, while the payment transaction was never so fast and convenient. However, such ride sharing platforms brought significant disruption within the taxi business. Nowadays, ride-sharing platforms operate in the vast majorities of the big cities; in some cities like New York, cars affiliated with on-demand ridesharing platforms have not only outnumbered taxis but also and more importantly have taken away millions of rides from taxi drivers. Due to the noticeable drop in passengers, the value of taxi licences has drastically reduced. According to anecdotal references, in 2013, a taxi licence in New York was worth as much as $1.3 million, however, nowadays the price has dropped down to as low as $200,000. As a result, such disruption in the taxi business has brought protests from taxi drivers around the world, and has created challenges to policy makers on how to resolve the conflicting interests and resolve the tension. Such challenges are expected to rise with the spread of the autonomous cars in the future. This chapter aims to examine the utility of sunset clauses in order to resolve this issue. It will use the progressive abolition of roaming changes as a pilot case, which took place with a number of laws subject to sunset clauses, in order to show how such clauses may with temporary regulations to deregulate the taxi industry by creating a predictable business environment for all parties involved.Publication Courts in the Constitution making process: Paradoxes and Justifications(Taylor & Francis, 2019-10-16) Kouroutakis, Antonios; Belov, Martin; https://ror.org/02jjdwm75This chapter examines the role of the judiciary in four constitutional orders, Colombia, South Africa, Honduras, and Nepal in the constitution-making process in 1991, 1993, 2009, and 2011, respectively. It highlights paradoxes but also to offer justifications, both formal and substantive, for the intervention of the courts in the constitutionalization of a new legal order. The chapter argues that the existence of an interim constitution or a total revision of the existing constitution may grant direct authority to the court to intervene in the constitution-making process, for instance by controlling the constituent assembly, reviewing its acts and even certifying the final constitutional document. It examines the formal justifications for the courts’ intervention. The chapter focuses on the case of South Africa and shows that the existence of an interim constitution may provide the positive law ground for the courts’ intervention. It also focuses on the substantive grounds that permit the courts’ intervention in such process, when formal justifications are absent.Publication The Constitution of Somalia on Paper and the Constitutional Reality(SSRN, 2018-01-12) Kouroutakis, Antonios; https://ror.org/02jjdwm75Somalia in 2012 adopted a new constitution and it became another African country with a new constitutional order such as Egypt, South Sudan, Libya and Tunisia. The recent Constitution like a palimpsest, embodies the constitutional acquis, and the lessons learned from past constitutional experiences. At the same time, it encapsulates the hopes for a stable and prosperous constitutional status quo in Somalia. While the Governments are enriched with a new constitutional cloak, the ideals for democracy, reconciliation and peace will not be materialized with an automatic pilot. It has been acknowledged numerous times that constitutional documents are not panacea solving all problems. With this caveat, it is important to take into consideration the constitutional reality in Somalia. Since 2012, the state building with its institutions is still in the making. The second legislative chamber is still absent from the mechanism of separation of powers. In addition, the building of the federal states is still ongoing distorting the balance within the vertical separation of powers. Moreover, elections do not take place due to security concerns evaporating the fuel of the political process and a fortiori the provision of referenda in the amendment process was proven an excessive expectation.Publication Anti-democratic political parties as a threat to democracy: Models of reaction and the strategic democracy(Thomson Reuters, 2018-12-01) Kouroutakis, Antonios; https://ror.org/02jjdwm75There is a consensus among policymakers, lawmakers, legal scholars and ‘we the people’ in the western world, that democracy is a blessing. However, how do we defend democracy from anti-democratic political parties that aim to overthrow the democratic regime by abusing the guarantees and the tolerance of democracy? This article argues that there are three public policy options: the traditional model that permits the dissolution of anti-democratic political parties; the business as usual model, that regulates such parties with ordinary administrative law and controls the conduct of their members via ordinary criminal law; and finally, the strategic model that employs an electoral system according to which political parties, like the anti-democratic, having more enemies than supporters are ostracized. That said, this article argues that whilst electoral law is the most rule-of-law based mechanism to safeguard democracies from anti-democratic parties, not all electoral systems are capable. Only the electoral systems that allow for ‘strategic voting’ can be employed for this purpose.Publication Doctrinal challenges for the legality of smart contracts Lex Cryptographia or a New, Smart Way to Contract(Suffolk University, 2018) Agnikhotram, Sai; Kouroutakis, Antonios; https://ror.org/02jjdwm75Theorized two decades ago, smart contracts had little hope for organizing our private relationships. With the evolution of blockchain, smart contracts emerged as a new way to form digital agreements in the private and possibly in the public law sphere. These ‘coded’ agreements, automate contractual terms disrupting traditional contract law; thus posing new legal challenges. Some postulate that this technology will displace law by replacing court enforcement with enforcement by code and this displacement would be marked by the emergence of a new, independent from law, set of rules – Lex Cryptographia. Others argue that given current technological capabilities, smart contract legality would only be possible by extension of existing legal doctrines. This paper addresses the divergent view on this topic and argues that private law can, and is better positioned to be updated for encompassing the new factual patterns offered by this technology. Thus, the first purpose of this paper is to provide a preliminary diligence for evaluating the major doctrinal concerns related to smart contract legality. The second purpose: reconciling these concerns by proposing ways to integrate smart contracts into existing private law concepts.Publication The Role of the Judiciary and the Supreme Court in the Constitution Making Process: the Case of Nepal(IE University, 2019-03-01) Zhu, Guobin; Kouroutakis, Antonios; https://ror.org/02jjdwm75This article examines the role of the judiciary in Nepal after the adoption of the new Constitution and examines its position via the lenses both of the separation of powers and the rule of law. By comparing the present Constitution with the previous constitutional documents of Nepal, it seems that the constitutional drafters on the one hand aimed to enhance the institutional independence of the Supreme Court, the head of the judiciary, but on the other hand, they limited its jurisdiction pertaining to the interna corporis and to the constitutionality review of constitutional amendments.Furthermore, this article argues that the judiciary does not simply represent one power in the separation of powers system and does not simply hold the role of the gatekeeper of the rule of law. More importantly, as it was shown in the Nepalese case, the judiciary, precisely the Supreme Court, can play a very proactive and creative role in the constitution-making process. Hence, this article offers justifications, both formal and substantive, for the intervention of the Supreme Court in the constitutionalization of the new legal order. This article argues that the existence of an interim constitution may grant direct or indirect authority to the court to intervene in the constitution-making process, for instance by controlling the constituent assembly, reviewing its acts and even certifying the final constitutional document. In addition, the courts’ participation in the constitution-making process might be justified on substantive grounds, such as natural law principles, common constitutional principles, or the so-called supra-constitutional principles that exist in every democratic society and are pervaded in the general belief of the people.