VictorJuiz/thesis huggingface dataset:
Trust and the fiduciary : philosophical foundations of fiduciary law

In exploring its two themes - trust and the fiduciary - the thesis pursues three aims. The overarching aim of the thesis is to consider to what extent, and in what ways, the fiduciary relationship may be said to be a relationship of trust. The pursuit of that overarching aim requires some understanding of what a relationship of trust is, of what a fiduciary relationship is, and of that which is entailed, in morality and in law, in trusting and fiduciary relationships. Hence the other two aims of the thesis. First the thesis aims to provide some analysis of trust, and responses to trust, from the moral point of view. Secondly, the thesis aims to identify a fiduciary principle, and to explain how fiduciary obligation might be justified.
The thesis concludes that the fiduciary relationship may be said to have trust at its core, but only in some ways, in some cases and from certain points of view, hi reaching that conclusion, the thesis develops philosophical accounts of interpersonal trust, obligations that those who are trusted owe to those who trust them, and the cycle of trust and trustworthiness that characterises trusting relationships. The thesis also proposes a fiduciary principle, according to which a relationship is fiduciary to the extent that one person, by exercising discretion to affect the interests of another person, is able to carry out some responsibility the purpose of which is to benefit that other person. It is argued that this principle, along with the Kantian insight that it is wrongful to use people as means to one's own ends, helps to explain and justify the prophylactic rule against fiduciary conflicts of interest in a way that has not to do with trust. However, it is also argued that the fiduciary duty of loyalty may be explained and justified in light of the point of fiduciary regulation, which has to do with supporting trusting relationships and securing the autonomy of individuals.
Law without order : a critique of systematic theories of law

The aim of this thesis is to challenge the tradition of theories of law to be theories of legal system. It argues that the frequently criticized individual failings of these theories are due to their common mistake in attempting to understand law in systematic forms at all.
"Positivist" systems are composed of rules, norms or reasons (Hart, Harris and Raz respectively). These are linked into structured wholes by their sources. Dworkin's "Content" system links the content of "principles" into a whole which provides the "best justification" law. It is argued that from the point of view of legal actors, let al social observers, neither kind of legal system adequately encompasses describes law.
Sociological theories of legal system are usually systems of individual roles and institutional functions that jointly perform the social function of law. These are rejected because legal institutions rarely fulfil their allotted function, yet do so much else besides.
A non-systematic theory of society is then proposed. This helps explain why law, as a key part of that society, is unlikely to be understood in systematic terms. It also provides a model for a nonsystematic theory of law. Both law and society are seen to comprise three kinds of social relations, power (including authority), unintended effect, and value-effect (including norms). Unpatterned sets of relations found between persons in more frequent or intense interaction with each other than outsiders form institutions. These social relations are such that they generate disordered conflict within and between institutions, the former muting the latter.
Law is seen as a set of institutions that are part of, and subject to, that conflict. It holds a special place within society because much of the conflict is channelled through the social relations within law.
Resulting trusts and the law of restitution

This thesis explores the nature of the resulting trust and its role in the law of restitution. Part One examines the situations in which resulting trusts arise. Chapters I (Apparent Gifts) and II (Trusts Which Fail) concern the traditional categories of resulting trust; III (Quistclose trusts) and IV (Failure of Consideration) look at resulting trusts which arise when property has been transferred for limited purposes which become incapable of fulfilment. It is concluded that all resulting trusts operate on the same principle, arising when property is transferred to another and the provider of that property did not intend to benefit the recipient. The presumption of resulting trust is an inference of that lack of intention. The presumption of advancement is an inference that a gift was intended. The distinction between 'presumed' and 'automatic' resulting trusts is rejected.
Part Two explores the relationship between resulting trusts and restitution. It is argued in chapter V (Restitution) that all resulting trusts reverse unjust enrichment. The restitutionary role of the resulting trust is considered by looking at (i) the types of unjust enrichment to which it responds, in chapters VI (Vitiated Intention), VII (Qualified Intention) and VIII (Mere Equities), and (ii) how it responds, in chapters IX (First- Measure Liability) and X (Fiduciary Obligations). Any defect in or qualification of the provider's intention to benefit the recipient, which gives the provider a right to restitution, should give rise to a resulting trust, so long as the property remains identifiable and the recipient has not obtained the unfettered beneficial ownership of that property before the right to restitution arises.
This thesis concludes by looking at three areas affected by this view of resulting trusts: (i) the classification of trusts, (ii) proprietary restitution and (iii) defences to restitutionary claims. When trusts are organised by the events which give rise to them, the primary trust responding to unjust enrichment (by subtraction) is resulting.
Mining rights in Zambia

Although hitherto there have been sociological, economic, and historical accounts of the copper mining industry on the Copperbelt of Zambia, this is the first detailed legal study of mining rights in the country. The first half of the study attempts to present the law in historical perspective and the second is essentially an examination of the law as it applies today.
Chapter One is introductory and gives a general political history, and demographic facts about the country; discusses the importance of minerals in the Zambian economy, the nature of the study, the sources of information, and the scope of the study ; and attempts to clarify the meaning and purposes of mining law. It shows that Zambia, once a British protectorate, is a sparsely populated country that is heavily dependent on its minerals for economic survival, that the study examines the main legislation relating to mining rights in Zambia, and that the basic role of mining legislation is to ensure the development and discovery of the country's mineral resources.
Chapter Two discusses mineral systems generally, and defines some of the technical terms used - such as "mines", "minerals", and "mining rights- and the sources of law affecting mining rights. This reveals that mining activities even in their earliest days were the subject of extensive regulation especially on matters of ownership and, that the main sources of the law affecting mineral rights are legislation, customary law, and the common law.
[Please see thesis for the cpmplete abstract.]
The legality of non-forcible counter-measures in international law

The object of this thesis is to examine the legality of nonforcible counter-measures in bilateral contexts. The major questions addressed are as follows: (i) do counter-measures constitute an autonomous category of justification for wrongful conduct? (ii) if so, what are the conditions of the legality of that category? (iii) what are the more significant collateral constraints on the legality of countermeasures? and (iv) what is the extent to which policy considerations contribute towards the determination of the legality of counter-measures?
The study begins with an Introduction which indicates the scope and the outline of the thesis, the terminology employed, and the approach adopted. Chapters One and Two deal with the historical development of the law of reprisals with special reference to non-forcible counter-measures. Chapter Three is entitled "The status of non-forcible counter-measures in customary international law since 1945: a preliminary sketch". Chapters Four, Five,and Six are devoted to examining the conditions of the legality of non-forcible counter-measures, viz., (i) breach, (ii) prior demand for reparation; and (iii) proportionality. Chapter Seven examines some of the more significant collateral constraints on the legality of counter-measures. In Chapter Eight an attempt will initially be made to examine the circumstances in which the performance of obligations under a treaty may be withheld as a counter-measure. The conclusions reached will then be compared and contrasted with the regime established by the Vienna Convention on the Law of Treaties. Chapter Nine considers the legality of counter-measures in the context of a commitment to peaceful settlement. Chapter Ten is concerned with the legality of economic coercion, and also with whether the legality of that concept has a bearing on the question of lawful counter-measures. The final Chapter summarises the major characteristics of the existing legal regime of counter-measures.
Making a difference : the use of meta-ethics in adjudication

Moral philosophers have long debated whether moral utterances can be objectively true or false (or objectively valid or appropriate). Many legal philosophers have also participated in this debate (which I shall call 'the meta-ethical debate'). Recently, however, there has been a trend among legal philosophers - led by Ronald Dworkin and Jeremy Waldron - towards regarding the meta-ethical debate as irrelevant to the adjudication of legal disputes (and possibly to legal practice and theory more generally). This thesis explores the reasons underlying this trend, and argues that the trend is misguided. After outlining several versions of objectivism and anti-objectivism, and arguing that there is a genuine debate between these positions, I seek to establish the relevance of those positions to adjudication in two ways. Firstly, I consider the arguments offered by Dworkin and Waldron to show that the truth or falsity of moral objectivism is irrelevant to adjudication. I seek to show that both Dworkin's and Waldron's arguments fail to establish the irrelevance of the meta-ethical debate. Secondly, I seek to trace the implications of the meta-ethical debate for a particular issue relevant to adjudication - namely, the legitimacy of judicial review. I argue that, while both objectivists and anti-objectivists can regard judicial review as legitimate, one's meta-ethical position should affect one's attitude towards judicial review in a variety of sometimes subtle ways. I conclude that the truth or falsity of moral objectivism does have implications for adjudication, although those implications are not as great as has been suggested by some opponents of the trend towards regarding the meta-ethical debate as irrelevant to adjudication. In doing so, I seek to tread a middle path between the two most popular views of the relationship between the meta-ethical debate and adjudication - that the former is either irrelevant to the latter or else has radical implications for it.
The separability doctrine in English arbitration law

The purpose of this thesis is to determine the scope and consequences of the separability doctrine in English law. It reveals a tension which hitherto has not been explored or understood between the desire to widen the separability doctrine so as to promote commercial arbitration and the need for that doctrine to rest on sound principle and policy.
The thesis seeks to convince the reader that: (i) English arbitration law is, and should continue to be, based on a contractual theory of arbitration; (ii) the separability doctrine, as applied in England, is consistent with a contractual theory of arbitration; (iii) the best way for the English doctrine of separability to develop, for reasons of policy and principle, is to recognise two main exceptions to separability, these being for non-existent and for illegal contracts; and (iv) the competence-competence principle can, and should, be utilised in order to mitigate some possible drawbacks of the above-mentioned exceptions to the separability doctrine.
In developing the above arguments the thesis tackles issues of great importance that have tended to be overlooked, in particular the relationship between the separability doctrine and general theories of arbitration and the relationship between the separability doctrine and the competence-competence principle.
Banks as financial advisers : a comparative study in English and German law

This thesis deals with law concerned with the role of banks as their customers' financial advisers in England and Germany.
At present, the law related to financial advice in England and Germany appears to be a motley conglomerate of isolated concepts and lines of authority which fail to form a homogenous body of rules capable of guiding those who are involved in the banking business.
Recent developments such as the 'misselling' of pension funds and other investment products have undermined consumer confidence in the financial services industry and have raised the question whether the present legal concepts can still be seen as adequate means to protect the interests of consumers.
This thesis argues that the duties of banks which assume the role of their customers' financial adviser should be extended so as to ensure that only those financial products are sold to customers which are positively suitable to their individual needs. Furthermore, it is argued that banks which provide their customers with investment advice should disclose to them any substantial conflict of interest on their part.
Additionally, the duties of lenders should also be in creased. This thesis maintains that, in certain circumstances, there should be an obligation on the part of a lender not to grant a loan to a financially inexperienced consumer. Furthermore, it is argued that - with regard to third party guarantees involving substantial financial risks for the guarantor - a lender should be under the obligation to ensure that the guarantor receives independent legal advice before signing the guarantee agreement.
On a more general level, this thesis calls for the development of a partnership between banks and their customers and regards it as the law's task to counterbalance existing inequalities of bargaining powers between banks and their customer to further the forming of such a partnership. It also supports the idea of informal conflict resolution systems such as the Banking Ombudsman Scheme.
Women, human rights and criminal justice

This thesis aims to contribute to the development of arguments that better incorporate women into the existing human rights paradigm. The human rights analysis is developed in relation to two substantive areas: sexual violence and female prisoners' rights. The first chapter questions whether the current human rights paradigm can address women's human rights claims, or if this discourse should be abandoned altogether. It sets out a number of feminist theories, showing how they evolved, analysing their strengths and weaknesses, and assessing them against the subject matter of the thesis. The strength of the human rights paradigm is examined with reference to the criticisms of liberal legal theory: the dependence on notions of negative freedom; the separation of public and private spheres of life; the emphasis on the neutrality and rationality of the liberal individual; and the focus on formal equality.
The manner in which the substantive law of rape is dealt with in human rights jurisprudence is analysed. The potential for human rights jurisprudence to affect the Sexual Offences Act 2003 is considered, particularly in relation to the new definition of consent. A new procedural framework for the handling of rape cases is developed. By drawing on the work of Alexy, it is argued that notions of rights within ECHR jurisprudence ought to be more subjective, enabling complainants to raise human rights claims in the context of criminal trials. A framework for the reconciliation of positive duties owed to defendant and complainant under the Convention is proposed. Similarly, the thesis analyses the substantive case law in relation to prisoners' rights, and its potential for addressing the rights of female prisoners. Finally, it is argued that ECHR jurisprudence needs to be developed further to address the substance of proportionate sentences, as opposed simply to the procedural aspects of sentencing decisions.
The fusion of the common law and the ecclesiastical law : is it complete?

Chapter I pages 1- 24
Consequent upon the separation of the temporal and ecclesiastical courts by the ordinance of William I, 1072 - 1076, it was necessary to decide : (a) What law could be applied in the Church courts? and (b) Over what matters they had jurisdiction? Due to the royal power and writs of prohibition the practical ascendency in deciding these matters belonged to the temporal courts. Nevertheless, it was a time not of fusion but of finding a modus vivendi and the canon law explained any seeming encroachment upon the jus commune by recognising local variations by the application of canonical custom.
Chapter II pages 25 - 45
With the beginning of the sixteenth century the authority of the canon law began to be challenged. Hunne's Case epitomised the laity's opposition and this opposition was given jurisprudential and theological backing by Henry Standish who sowed the seeds of the receptionist doctrine- The watershed may be found in 1515; thereafter the common law was to achieve ascendency backed by the literary arguments of John Skelton, Simon Fish, Christopher St. German and Stephen Gardiner.
Chapter III pages 46 - 95
The Reformation Parliament saw the beginning of ecclesiastical law as opposed to the canon law applied in England. Statutory regulation of Church life was extremely wide. Convocation in theory had a parallel place to that of Parliament but royal control of its legislative powers radically curtailed them and Convocation could not derogate from the common law, statute law or the King's prerogative. The revision of the canon law did not take place but the canon law was similarly limited. Moreover the study of the canon law was seriously curtailed.
[Please see the thesis for complete abstract.]
Procedural detachment in international commercial arbitration : the law applicable to arbitral procedure

This thesis seeks to ascertain the rules of private international law determining the procedural law of international commercial arbitral proceedings. In an Introduction, the author outlines the fundamental notions, introduces the topic and the major doctrines and issues, and sets out his methodology and structure of the work.
The thesis examine first, as a preliminary issue, the considerations influencing the assumption of jurisdiction over arbitral proceedings. Chapter 1 discusses the various theories on the lex arbitri (the law supplying the general legal framework of an arbitration) as relevant to the procedural law, and concludes that they are deductive and therefore unable to satisfactorily to determine the applicable procedural law. Chapter 2 analyses major national laws as case-studies of the technique and scope of application of international arbitration law, and suggests a model of legislative and court jurisdiction based on the legal concept of 'seat of the arbitration' and on considerations based on the most appropriate court to control an arbitration. Chapter 3 discusses the obligations of the state of the seat under the European Convention on Human Rights and confirms the findings in Chapter 2.
In a second part, the thesis elaborates on the title and extent of permissible municipal law interference. Chapter 4 tests the validity of the propositions derived from Chapters 2 and 3 against arbitral practice and concludes that seldom will arbitrators derogate from the law of the seat. Chapter 5 examines the particular case of arbitrations with states and similar entities.
The third part discusses the relevance of compliance with the law of the seat at the stage of enforcement of an award. Chapter 6 deals with the technical issue of whether annulment at the place of making precludes enforcement in other fora. That chapter gives the opportunity to discuss models of separation of international jurisdiction and co-operation between different jurisdictions from a practical perspective. It thus serves as a convenient introduction to Chapter 7, which discusses the more abstract question of the nexus required between an arbitral award and the municipal law of the state of rendition in order for the award to enter, in limine, the scope of application of the international instruments in the field.
The thesis ends with Conclusions in the form of model provisions for municipal law and arbitration rules.
Private international law aspects of cross-border wrongs on the internet

Private international law divides the world into territories, each with its own court system and laws. The internet presents challenges to this neat division. It is difficult to identify where an activity takes place on the internet. Wrongs on the internet leave many questions unanswered in transnational litigation. This paper addresses the private international law aspects of cross-border civil wrongs on the internet. Chapter A introduces the internet, and aims to simplify the technical issues. Chapter B asks which court has jurisdiction in a case of wrongs on the internet. The focus is on two sets of rules commonly applied around the globe: the service abroad provisions and the special jurisdiction provisions. The chapter aims to advance general principles applicable in cases of cross-border wrongs committed on the internet, as to the place where a wrong is committed, and the place where damage is suffered. The issue whether a court can grant an injunction against a foreign defendant in respect of foreign conduct is also explored. The exercise of jurisdiction under the service abroad provisions is discretionary. Chapter C examines the forum (non) conveniens discretion in the context of wrongs on the internet. It concludes that, of the US jurisdictional principles developed in internet cases, the sliding scale test should be treated with caution, but the effects test (targeting) should be a factor that is taken into account, in exercising the discretion. Chapter D asks which law applies to a wrong on the internet, concentrating on the divergent choice of law rules in tort in Australia, Canada, the UK and those proposed in the EU. The two chapters that follow consider wrongs to which the internet environment is particularly susceptible, and which deserve separate treatment: intellectual property infringements (Chapter E) and defamation (Chapter F). The final topic, recognition and enforcement of foreign judgments relating to wrongs on the internet, is the subject of Chapter G. The paper rejects the suggestions that new rules should be developed for wrongs on the internet, and concludes that the existing private international law rules are largely workable in the internet context, but require some flexibility in order to be adaptable.