XIFARAS Mikhail

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This thesis deals with the history of international commercial arbitration, a method of dispute resolution by which the parties remove the examination of their dispute from the state courts and entrust the solution to one or more private persons. This history can be divided into three main periods. During the "Age of Aspiration" (from about 1800 to 1920), arbitration was used in many contexts, both domestically (corporate arbitration) and internationally (interstate arbitration), which gave certain characteristic features to the modern practice of international commercial arbitration. During the "age of institutionalization" (from about 1920 to 1950), key institutions such as the International Chamber of Commerce and its Court of Arbitration were created, and coherent and effective institutional arbitration systems were established. Finally, the "age of autonomy" (since the 1950s) was marked by increased specialization and by attempts to self-institute a separate body of law and to justify the theoretical underpinnings of the arbitration system as a whole. This research demonstrates that the history of international commercial arbitration oscillates between phases of "renewal" and phases of "anxiety". During periods of renewal, new instruments, devices and institutions were designed to expand the reach of international commercial arbitration. Such measures were counterbalanced during periods of anxiety or questioning, when attempts were made to limit the scope of arbitration (e.g. in order not to encroach on state sovereignty). This tension or pendulum swing between renewal and anxiety is a characteristic feature of the history of international commercial arbitration and helps to explain the structural forces underlying its evolution.

The figure of the "foreign combatant/volunteer" has haunted international law for some time now. A hybrid actor ranging from romantic adventurer to committed idealist to right-wing racist mercenary to, most recently, international terrorist, the "foreign combatant" has proven extremely difficult to systematize using formal legal categories. More specifically, these categorizations are also the result of highly contextual and deeply politicized assessments of who is to be considered a "good" or "legitimate" foreign fighter. As such, they have worked to exclude other foreign combatants on the battlefield, as well as to delegitimize political opponents in these ideological struggles in the context of non-international armed conflict. By detouring through three distinct moments in recent civil war history, this thesis seeks to show how different "figures" of the foreign combatant have shaped and continue to shape the legal conversations of state officials, legislators, international lawyers, and domestic courts at very different times and places. These "figures" are present in the background of legislators' various arguments and positions, permeating and shaping their legal imaginaries. They constitute an ambivalent repertoire that can be revived and used again and again to characterize the good or bad nature of foreign combatants' causes, thus contributing to making the "foreign combatant" a highly ambivalent category whose legacy will continue to haunt international law.

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Starting from a critical reading of Foucault, this article analyses an early text by Marx where the penalization of the theft of dead wood resonates with the transformation of property law, with the production of new forms of illegalism and with the transformation of civil society. It reinterprets patrimony as an “artificial judicial body”, in order to shed light on today’s mass incarceration, viewed as a means of control towards pauperized populations characterized by their “empty patrimony”.

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We are pleased to present to the readers of Jurisprudence - Revue critique a special issue entitled "Le droit, entre théorie et critique", under the scientific direction of professors Julie Saada and Mikhaïl Xifaras. The book follows the reflections developed by the fourteen contributors during an international colloquium held at the University of Paris I Panthéon-Sorbonne and at the Law School of Sciences Po on the same theme. The book proposes an intersection of various theoretical approaches that have in common to develop a critical knowledge of legal phenomena. Internal criticism of law, external criticism or total criticism are deployed in the texts of eminent contemporary thinkers whose reflections Jurisprudence - Revue critique is honored to contribute to spread. Monique CHEMILLIER-GENDREAU, Jean L.

Familiar legal theories are epistemologically and politically stato-centric theories. they aim to rationalize intra- and inter-national legal systems. If this Westphalian approach were abandoned, then its replacement might be called Global Law, which invites theorizing that is not stato-centric. When that change happens, one would talk about a Global Turn in legal theory. Describing this turn is the aim of the present paper. To this end I am going to present two ideas and three intuitions—not to mention a couple of ambiguities. The two ideas concern the history and the geography of Global Law. The three intuitions are about the fate of legal theory itself in this new emerging context. What follows is neither a substantial or positivistic analysis, nor a prediction or a wish. I point out tendencies, things that are happening more and more.

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Let us begin by saying that we share the guiding idea stated in the article by Messrs. Beaud and Libchaber: the central question is that of the freedom of the university, a victim of both an overwhelming state supervision and an obvious lack of financial means. The university is dying from a lack of freedom, and conquering it involves at least as much access to financial resources as the restoration of forms of collective virtue, through the encouragement of good practices. To this observation, we would readily add that this conquest is inseparable from a vigorous intellectual and institutional renewal, from a profound transformation of the dominant conception of what legal thought and the ways of teaching it should be. It is on this point that we differ. The result, for example, is that we find it difficult to see the CNU or the agrégation as institutions that are favorable to the academic freedom that we are calling for. Above all, the result is that, contrary to what they write, we do not think that "The difficulty in considering criticism of Sciences Po is that it is powerless to formulate grievances that are useful for the renewal of the university. Nor do we believe that being professors at Sciences Po places us in the extra-university system, making us deserters ("Defection is running away from the university!"). Sciences Po is a hybrid institution, both public and private, with a public service vocation, which holds from its past the status of a grande école and from its present that of a selective, fee-paying university (more precisely, of a "grand établissement" within the meaning of article L. 717-1 of the Education Code), as they exist everywhere in the world. Its status gives its law school the possibility of enjoying greater autonomy than the law faculties. This makes it less of an "unfair competitor" (its small size would make such competition derisory anyway) than a laboratory where other ways of doing and teaching law can be experimented with, with its necessary share of trial and error, mistakes and successes. In this sense, the experimentation that goes on there is not too far away to offer any lessons to law schools. On the contrary, and as the article suggests very well, it presents other ways of doing the same job, a little more freely perhaps, a little more joyfully too ("It's that we are doing the same job, but in such different conditions! If we had their means, and their freedom, we would be very happy"). The "intellectual critique" that the Law School project brings to the dominant (but not hegemonic, by any means!) model in law schools seems to us to deserve to be taken seriously, because it is at the heart of the project of conquering this academic and political freedom that we all wish for. [First paragraph of the article].

Until recently, the issue of legal education was largely confined to the publication of official, often confidential, reports. Since the beginning of the twenty-first century, it has been the subject of new and extensive debates. Christophe Jamin and Mikhaïl Xifaras, both professors at Sciences Po, express in the following article a point of view that will please or irritate the world of lawyers, both those who teach and those who practice. The vigor of their comments and proposals prompted us to make them the starting point of a more general reflection conducted as a survey. We have invited eminent jurists from different schools, opinions and professions to share their views on law studies with our readers. We will publish their articles in our next issue. The survey will answer five questions: Should law school be reformed (student recruitment, length and content of training, professional orientation)? How should law schools be managed? How should they be integrated into universities? How should law professors be recruited? What role should lawyers from society (judges, lawyers, etc.) play in this teaching? What changes are required by the internationalization and Europeanization of law?

The ownership of immaterial goods, that is to say the right of the authors and their producers to exclude the owners of these goods from the property of the State, is a matter of great importance to the authors. Starting from a critical reading of Foucault, this article returns to one of Marx's first texts, devoted to the theft of dead wood, to analyze the links between the penal regime of the punishment of wood theft and the civil regime of the transformation of property, between the production of illegalisms and the metamorphoses of civil society. He draws from it a synthetic vision of the patrimony considered as an "artificial legal body", before bringing a seizing lighting on the mass incarceration which characterizes our time, where he suggests to see a means of controlling pauperized populations, characterized by an "empty patrimony".

Article à paraître dans International Encyclopedia of Political Science, sous la direction de Bertrand Badie, Dirk Berg-Schlosser, Leonardo Morlino.

This study examines the articulation between private international law ("PIL") and the discipline of human rights in the transnational context in light of the notions of recognition and denial of recognition, both of which are derived from political philosophy. The central problematic studied here is the following: in what way do political struggles for the recognition of marginalized identities modify the reasoning and techniques of transnational conflict resolution employed by national judges? In political philosophy, recognition implies respect for the otherness and difference of the Other. In contrast to recognition, the denial of recognition refers to cultural and economic processes that generate and reinforce daily humiliation and contempt for those whose identities differ from the social norm. The general argument defended in this work is that decision-making processes in transnational space, i.e. legal modes of reasoning, reproduce the stigmatization of individual and collective identities. PIL and human rights thus legitimize and participate in political processes of exclusion of communities that have been and continue to be culturally marginalized throughout history. The law thus legitimizes the denial of recognition that already constitutes the political space.

Christophe Jamin is the director of the Sciences Po Law School. He recounted the motives and experience of its creation in 2009 in a small book, La cuisine du droit (Lextenso, 2012, 277 pages), which generated a lot of controversy after its publication in France. Mikhaïl Xifaras was closely involved in this creation as a teacher at the School of Law and head of its doctoral program. He wanted to contribute to the discussion by proposing a review of this book to most of the French law journals, which all refused to publish it, for various, sometimes surprising reasons. These refusals led both of them to want to give this review the form of an article written together and to go and be published elsewhere, in this case in Belgium, a country whose hospitality they know and appreciate. [First lines of the article].

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In the 19th century, the legitimacy of property was the subject of lively debate, but it was left to legal thought to determine what it was. A reading of the commentators of the Civil Code reveals three conceptions of property. Sovereign control evacuates all personal mediation between an active subject, endowed with the capacity of initiative and government, and a material thing, or any reified being, so that the right of ownership, the domain and the thing are confused. The right is absolute, i. e. real, supreme, perpetual and exclusive (in the sense of particular). Patrimonial belonging refers to a relationship of original identity between persons and goods, conceived in the categories of having, from which proceeds the dissociation between a point of belonging (structural position of the owner) and his patrimony (juridical universality of his goods), as two modes of the same being, inscribed in the same teleological determination. ...